Strict Scrutiny - Troll World Tour

Episode Date: October 4, 2021

Dahlia Lithwick joins us for a preview of this monster term, and a breakdown of … that Alito speech. Follow us on Instagram, Twitter, Threads, and Bluesky

In 2015, Vladimir Putin's number one public enemy, Boris Nemtsov, was shot and killed in front of the Kremlin. He was a relentless critic of Putin, corruption, and war in Ukraine. Then he was assassinated. I'm Ben Rhodes, writer and co-host of Pod Save the World, and I'm teaming up with Boris's daughter, journalist Zhanna Nemsova, to tell his story in Crooked Media's new podcast, Another Russia. Together, we uncover what happened to one family and an entire country

and ask whether another Russia is possible. New episodes every Monday. Listen and subscribe wherever you get your podcasts. I will just say, wow, I'm having this like paralyzing leg cramp. Hold on. This is Justice Alito's poisoning me. He's got a voodoo doll. He knows we're talking about him. He knows. Mr. Chief Justice, may I please report. It's an old joke, but when a man argues against two knows. 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 to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Kate Shaw.

And I'm Leah Whitman. And today is a special show for a number of reasons, but one very big reason is that we have a very special guest, Dahlia Lithwick, host of Slate's Amicus podcast, where she talks about the court, everything that is court adjacent, and where she compliments her fantastic writing for Slate. So welcome to the show, Dahlia. Yay! I'm doing Muppet hands. Yay! Thank you. This is such a treat, you guys. Thank you. Well, the treat is all ours. So we are so excited to have Dahlia with us for any number of reasons. We're going to try not to embarrass you too much, Dahlia, but we have to name just a few.

So the backstory here is that we had so much fun recording a short segment for the Texas Tribune Festival, and it was a really short segment. It was like 30 minutes long that as soon as the recording stopped, we were all like, wait, we want to keep going. And so we kind of joked because things got kind of grim at the end of the 30 minutes that like, we got to keep this up over wine. But then we emailed you to actually ask if you'd be down to continue this over wine. You said, yes. So here we are. I am just drinking chai at the moment, but I may in the latter half of our conversation, depending on how it goes, supplement with something stronger. I have a White Claw. It's mango flavored. Do you really? Yes. This is a mango White Claw.

That is the official beverage of the Jersey Shore, I am told. Oh, I didn't even know that. Well, good for me. I mean, you are really channeling Sam Alito with that beverage. Oh, yes. I didn't even know. GTL and White Claw. Okay. So we're also so excited to have you, Dahlia, because as Kate alluded to on the Texas Tribune episode, you have been providing courts coverage that was really one of the inspirations and models for our show. Coverage that was fun and sometimes irreverent while also being substantive, that offered your perspective on top of really hard-hitting analysis and was offered by you, someone who had

won a bunch of gold stars when they graduated from Stanford and could have kept their head down and been part of the network of elite lawyers who never criticize each other or criticize the court. But instead, you forged your own path and chose to be a strong, unapologetic woman while doing so. So another reason we are super psyched to have you here. I feel like I want to make that my ringtone, Leah. Can you record that directly into my – it's been a tough, tough couple of weeks for strong women critics of the court. So it's really nice to be with you all.

Thank you. We are so excited to have you here, Dahlia, for this very special episode on not only is it our term preview and spoiler alert, this term promises to be a barn burner, but it's also our very first, but certainly not our last live show this season for our fabulous Glow subscribers. And most of you might not know this, but we kind of run this whole show by ourselves. We do the prep, We do the social media. We do the merchandise. You're welcome. So we do all of this, the website, the emails.

Sorry for the delayed responses. We also have to teach class while we're doing this. And then our fabulous producer, Melody, edits all of our shows to make them sound listenable. So it's basically a family-run business at this point. It is. And we do not have some unnamed private benefactor endowing the show or an institution to fund the show, nor are we yet a part of a podcast machine or podcast network that promotes us. It is just us. We have had some great interns along the way. Shout out to Liam Bendixson, who I believe is here this afternoon.

But otherwise, it is just the four of us kind of doing everything for now. And we've been able to get by over the last two years through a combination of selling merchandise, putting in some of our own money, being extremely fortunate to receive a one-year fellowship from Melody through the Jane Family Initiative and voluntary listener contributions, our Glow subscribers. So thank you to our Glow subscribers who have made this possible. And to thank them, we are hosting a live over Zoom show and we'll take some questions at the end just for them. So if you'd like to sign up to be a GLOW subscriber,

you can go to glow.fm forward slash strict scrutiny. All right, on to the show. So outline, as always, we're going to cover some news at the top of the show. And today we've got a lot of news. We're then going to move on to our term preview, which we're going to cover some news at the top of the show. And today we've got a lot of news. We're then going to move on to our term preview, which is really going to be kind of two parts, a quick lightning round of cases to watch, followed by or perhaps interwoven with, depending on how many drinks we've had, themes to watch as well as cases. We're probably going to run long on this one. Leah is insisting that we try to talk her out of it on talking about an ACCA case, which means we probably

won't have a ton of time for court culture today. But because this is kind of like part two to the Texas Tribune episode we were just talking about, we want to come back to the article that Dahlia mentioned briefly at the end of that episode. So it's an article that we wrote about the podcast and about just kind of the general lack of diversity in the court's ecosystem, because we wrote it a few months back and then Dahlia pointed out to us that we had actually never discussed it on the podcast itself. So we'll do that at the end of the show. Okay, let's do some breaking news. And we have some major, major, major breaking news. It was announced on Friday morning, the one year anniversary of that time, the former president Donald J. Trump got COVID, that in honor of that anniversary, Justice Brett Kavanaugh also contracted COVID.

He is, as of now, asymptomatic, but he initially tested negative on Monday of that week before then testing positive on Thursday. And in between, the justices attended a weekly conference, and this was the long conference where they take up a lot of different petitions and do a lot of different court business. And we're going to talk about what came out of that conference in a minute. But oh my god, like what the actual... Just to put a flag down, if he gets Sonia Sotomayor sick, there will be no forgiveness. We ride. We ride. Exactly. You know, because of his diagnosis, he is not attending Justice Barrett's formal investiture. Apparently, it has been reported the investiture has since happened on Friday. Justice Sotomayor was the only person masked at that investiture.

What are they thinking? It's like no one realizes that, like, almost all of them are over the age of 70. That does seem to have flown over some people's heads, Steve. Or at least over the age. I mean like there are a bunch of septuagenarians, a couple of sexagenarians, and some 50-year-olds, one of whom has COVID. And they're all double-vaxxed? Are they all – all the justices are double double vaxxed or we don't know that? So we were told that all of the justices were fully vaccinated.

Unclear if some of them got, you know, the single dose Johnson and Johnson. Unclear exactly what that meant. But that's what the PIO had said. I mean, we wish him a speedy recovery. Like, of course, COVID is not something that anyone wants to get. But oh, my gosh, just like the proximity to people. I hope they're masked in conference at the very least. Do you feel like there's any chance they are? I mean, if they're not masked at the investiture, I mean, was it outside? Was the investiture outside? No, they were on the bench.

I mean, there's like that one little outside moment, but they were they took the bench. Yeah. And the picture that I saw, at least the drawing from the SCOTUS blog sketch, was like only Sotomayor was masked. Yep. I don't know. That suggests to me that maybe they're not masked. Yeah. But I really, I mean, maybe they took their masks off for the drawing, like just for the 20 minutes for the sketch. Let's give them the benefit of the doubt.

And like Justice Sotomayor has a chronic health condition. I mean, just out of respect for her, they should all be masked. We all know the justices regularly show a ton of respect for their colleague, Justice Sotomayor. It's possible that Justice Kavanaugh will also be missing some additional things coming up. There are arguments that are supposed to begin on Monday, and those arguments are going to be in person. We'll talk about the COVID protocols in a little bit, but we don't know what's going to happen as a result of this COVID diagnosis. So another piece of news that I am so excited we get to cover is the continuation of the justices' giant troll world tour. As we noted on the last episode, Justice Barrett gave

a speech at which she sought to convince the audience that the justices were not partisan hacks and that the Supreme Court isn't influenced by politics after being introduced by the man who used politics to influence the Supreme Court, Mitch McConnell. On Twitter, we invited our listeners to suggest a nickname for Justice Barrett in light of this speech. Sam can't have all the fun with the nicknames. Some of the ones that our listeners came up with included Justice Amy Trolley Barrett, Justice Grinnon Barrett, I don't care it, do you, and Justice Dolores Umbridge. So we'll take those under advisement. More seriously, I have I have come up with a solution to their problem.

They want to convince us that the court is above politics, that the justices, you know, aren't influenced by politics. And the court is really just about the law and it's totally distinct from politics. Here's the idea. All of the Republican justices should resign and be replaced by a Democratic president. Then we would truly see that politics don't matter at all in selecting justices and don't matter at all in how the justices decide cases. It is just about the law. Prove me right, Amy. So Leah, you were just trying to get Sam to accuse you of threatening him.

I feel like there's a decent chance. You're skipping ahead to the speech, Kate. But yes, I did feel very neglected when Sam Alito basically started identifying all of his enemies by name. And I wasn't listed. I mean, I don't understand. I think it's because we also pay him a compliment in terms of his skin care routine. I think we have to stop giving him props for his skin care. Well, also, just to be clear, the people that he named were all men.

True. True. Might just not be visible to him. the people that he named were all men. True, true. Might just not be visible to him. What's that I hear? Is it a lady part talking? I don't hear it at all. As we said, in literally our very teaser of this podcast,

if several women offer commentary on the supreme court does it even make a sound um all right so troll world tour and then back to the most recent installment um so when we recorded our last episode um we noted that justice thomas had also given a similar speech this one at Notre Dame, about how the justices aren't political and subsequently clearly deciding that he couldn't let the junior most justice, right, Amy Trolley Barrett, maybe, I feel like that one might work best, but I think we got to workshop them a little bit more. Anyway, couldn't let her out troll him. So it was announced that he had decided to celebrate his 30 year anniversary as a justice at a Heritage Foundation

symposium, where we will no doubt hear much more about the apolitical court, and that he would be giving a keynote address at said event together with Mitch McConnell. Mitch, please! How does he have time for this? How does he appear at every single one of these events? More seriously,

they're just doubling down. I don't know if this is going to be a regular installment. I took a DNA test. Turns out I'm 100% that Mitch. The program for this event has been released, this event in honor of Justice Thomas. It will be convened at the Antonin Scalia School of Law at George Mason University. Again, convened by the Heritage Foundation. That was also the group that brought you the really amazing program about how the British monarchy and the American Revolution were actually simpatico. Yeah, right. I mean, who knew? But it's also being brought to you by the Mies Center for Legal and Judicial Studies. And if

you don't know who Ed Mies was, if you weren't sentient in the 1980s, he was the attorney general under Ronald Reagan and one of the people who was most supportive of the Federalist Society in its infancy. The program doesn't necessarily list Mitch McConnell as a keynote speaker at the event, no doubt, because the Supreme Court is not partisan. It doesn't list Justice Thomas, but I assume he will say something given that it is an event in his honor. But all of this seems to be happening. And the program features Thomas Clerk after Thomas Clerk after Thomas Clerk after Republican Solicitor General and after one Lisa Blatt, author of the article, I'm a liberal pro-choice feminist and I support Brett Kavanaugh piece that was much discussed in 2018. She is appearing on my personal favorite panel at this event. That panel is entitled Advocacy in the Thomas Era Court. So what is a Thomas Era Court? Is this like on Mean Girls when Gretchen was trying to make fetch happen? Are we trying to is a Thomas-era court? Is this like on Mean Girls when Gretchen was trying to make Fetch happen? Are we trying to make a Thomas-era court happen?

Is it happening? Was it Blatt? No. Who accidentally referred to him as Chief Justice? Right? Remember this? Wasn't it Seth Waxman or something? Yes.

Yes. That might be right. Okay. So Blatt. He said that position isn't available or no promotion here. But it's also his former clerks sometimes refer to him as the real Chief Justice, you know, because Chief Justice John Roberts is, you know, so illegitimate in their eyes. Well, he's the shadow Chief Justice, I think is what it is. The emergency Chief Justice, Kate,

get it right. I think Mark Stern and I did a piece very shortly after Trump was elected where we just talked about how all out of proportion to like any sort of imaginable numbers that Thomas clerks had fanned out into the Trump administration. I mean, many more than any other justice. And I think maybe that is, in fact, the Thomas era, right? Like just leaving your imprimatur on Washington, on all the agencies and on all the, as you said, you know, red state high offices. It is in some sense, not an accident that it was the Thomas clerks and not, right, the Roberts clerks. So now we get to the thing i have been dying to discuss because i think some of us were beginning to wonder where is our boy sam trolito in all of this how can he let the other justices out troll him fear not maybe he heard us talking about this last week

because i think i referred to them as the B team. Like this was not, they did not bring their A game. And I think he may have taken that personally and like, you know what, I'm going to do it. Yeah, I think it's like, I'm going to do it. Oh boy, did Sam do it. So he gave a talk on Thursday at Notre Dame about the quote, emergency docket. Backstory, when it was initially announced, these were the rules. No photos, video or audio recording will be allowed. Phones were meant to be turned off. And apparently these requests were at the behest of Justice Alito, not independently arrived upon by the Notre Dame organizers. This is peak transparency. I just want everyone to know. Procedural Alito. He really cares about processes and procedures. So non-transparent talk about why the non-transparent shadow docket is A-OK.

So talk about the shadow docket in the shadows. It was just all too much, right? Life imitates art. The jokes write themselves. But, and this seems important, all of that was later rolled back, right? So the speech, which was held on Thursday, it was abruptly announced after the initial ground rules had been issued that, in fact, the speech would be live streamed. Can I ask a question, Kate? Yeah. Why do you think they changed course to live stream it? Do you think it was in response to the Wednesday SJC hearing?

I just think like the drumbeat of criticism got to them, like it wore them down. And I think there's just a really important broader lesson about it mattering when there is blowback like this. The substance of the speech itself revealed that this criticism is getting under the skin, the fine, fine, youthful skin of Samuel Alito. And also that the criticism of the surrounding rules. The moist, dewy skin of Samuel Holydow. Also, just for what it's worth, don't forget that Justice Barrett had done the same stupid stunt.

You know, not only was she speaking at the Mitch McConnell Center as she, like, stroked his silky mane and, like, talked about how nonpartisan he was, but, like, it was completely ridiculous that, you know, there were a couple stringers there. The press corps, the Supreme Court press corps asked for copies of the speech,

asked for transcripts, asked for audio, all of that not made available. And then she turns around and starts crapping on the press. So it's like, you know, either like have the courage of your convictions and like do it openly or get really bad blowback for doing something that was just a huge self-own. So the real question is why Alito was like, hey, that worked out really well when Amy tried it. I'm going to do the same rules and expect a different outcome.

I mean, that was just nuts. So someone obviously intervened. And so Kate, your generous take on this is that someone was like, we should be a little more transparent about this and live stream it. I was thinking maybe he was like, after seeing that Wednesday hearing was like, no, I want to go on record. And I want Vladek to know it was me like Game of Thrones style. Is it too dramatic? No, it's definitely not too dramatic because if we learned anything about this speech, it is that Sam Alito scours the internet

and hate reads all criticism of himself and of the court. So maybe we can shift to the actual content of the speech now. We can't possibly do justice to this entire... This part of the episode is the section that we're calling Sam Alito's burn book. Because I was expecting him to be in fine form. Like I was imagining him basically screaming and like pounding, you know, a table saying you all are trying to cancel the shadow docket. This is cancel culture gone too far. But it somehow exceeded even those expectations. So he comes out with this list of critiques of the shadow docket and then proceeds to, in deeply tangential and misleading ways,

attempt to rebut them point by point. When he gets to criticism number nine, he says, I'm getting close to the end, takes a giant swig of water, like this is the energy for the speech. It was like Festivus came early for Sam Alito and it's time for him to air some grievances. And he had to hydrate first, hydrate first. Well, you don't get that dewy skin from nowhere. That was a little bit of skin care. I don't think his skin was

as in good form as it usually is. He looked a little, he looked like he was tired. The criticism has worn him down. It has worn him down. I do think that's true. I think that's true. The entire thing had real big Sam Alito during President Obama's State of the Union Energy, you know, head shaking, not true vibes. So he says, you know, these emergency applications impose additional stress on the court because the real victim of the court shadow docket is Sam Alito. Like, this is why his skin doesn't look great. He's had to stay up all

night writing single paragraph orders about why Texas can prohibit abortions. Right. The real victims are not people kicked out of their homes because various eviction moratoria are struck down or women in Texas can't get abortions, right? It's Sam. We also learned that Sam objects to the use of the phrase shadow docket. So Dahlia, your colleague, Mark Joseph Stern, did great work sharing some videos of the speech. The speech was live streamed, but Notre Dame took the video down, so you can't go back and watch it. So let's play a clip that Mark was able to share on Twitter. My point is that the media and political talk about the shadow docket is not serious criticism. It is related to a deep problem that some of my colleagues have addressed recently.

The catchy and sinister term shadow docket has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution. I couldn't shake the image of Cartman shouting, respect my authority from my head, like while he is saying this. And it gets progressively stranger, the speech. So he calls out a piece in The Atlantic by Adam Serwer. Here is a line from a recent piece talking about a refusal to grant an injunction in the Texas abortion case. Quote, the conservative

majority on the Supreme Court was so eager to nullify Roe v. Wade that it didn't even wait for oral argument. End quote. Now, put aside the false and inflammatory claim that we nullified Roe v. Wade, we did no such thing, and we said that expressly in our order. So the statement is flatly wrong. And the suggestion that we should have held oral argument is ridiculous. He takes a more general swipe at journalists. Journalists may think that we can just dash off an opinion the way they dash off articles. I had written after Justice Barrett's speech that I thought the really pernicious thing wasn't the fake claim that, you know, she wasn't partisan or even the like silky stroking of Mitch McConnell, but in fact, the press critique,

because it's really virulent. They all do it, by the way. I mean, you know, every justice, it's one of the things on which they are actually quite nonpartisan. They all like to take a brick bat to the press. But Alito, I don't think Justice Alito fully understands, A, what it does when a journalist is like either name checked or like very easily, like it really causes immeasurable damage to them when he does that. And I think, and I wrote this about Justice Barrett too, like if your job and your relationship with the press turns on like showing your work, whether it's like not having unsigned, you know, page and a half opinions that actually don't clarify, or whether it's like not having unsigned, you know, page and a half opinions that actually don't clarify, or whether it's like letting the world see the text of your damn speech,

then getting mad at the press when you fail to show your work is just so freaking hypocritical. Like if, in fact, as Sandra Day O'Connor always said, you know, just judge us by what's in the four corners of what we write. Everything else is immaterial. Then like do decent work. But to do shoddy work and then defend it and then blame the press for your shoddy work, it's like next level shoot the messenger. And I also just really, really feel it's, I don't think he understands that Adam Serwer doesn't have marshals protecting him. Like, I just think the justices do not understand what it is to call out a journalist by name. Yeah. And again, we were joking about this earlier, Sam Alito's public enemy list.

He specifically criticizes Steve Vladek for critiquing the shadow docket in congressional testimony. He describes critiques about the Supreme Court's procedures as, quote, unworthy. Well, can I just interject here? He goes on and on about this whole idea of the shadow docket, like how it's being crafted. The name itself suggests nefariousness or something shadowy or cynical. But he never actually calls out the individual who coined the term the shadow docket. And that, of course, would be Will Bode, who coined the term, the shadow docket. And that, of course, would be Will Bode, who coined this term in a Law Review article in the NYU Journal of Law and Liberty in 2015. And so he's going on about this term, but never actually criticizes the person who originated it.

We saw that at the hearing, the Senate hearing, the Chuck Grassley line is like professors have coined this term as though, you know, the whole bunch of you. Yeah. The whole bunch of you are sort of lying rats and not even sort of saying, by the way, he's on our team. This is not a critique of Will Boat. I mean, I think it was a very astute observation. The article, I think, lays out a lot of the problems with the shadow docket. But it's like the sort of selective enforcement of the civility norm is kind of ridiculous. Remember when Justice Alito, his wife ran crying from the hearing room and the Democrat questioning was tagged for that, that the Democrats had driven her. Do you remember who asked the question? Anyone? Anyone? No.

Lindsey Graham. So it's an old trick that you completely gaslight about who invents the thing, and then you say that the Democrats hounded his wife out of the hearing room in tears. Also on Justice Alito's list of public enemies is Mark Tushnet, who he also identified by name. Justice Alito described him as, quote, advocating for socialism and noted that Professor Tushnet had written a blog post that says, the shadow docket is inevitable. This is not the first time that Justice Alito has talked about a blog post that Mark Tushnet has written in a public speech of his. Why is Justice Alito so obsessed with him? And how does he have space for this many people to

live rent free in his head? That Federalist Society speech in which he named Mark Tushnet was almost a year ago. So, you know, a few other things to note about the speech, and then we'll move on. He said a ruling on emergency application isn't precedent on an issue, despite joining an opinion that faulted the lower courts or failing to treat the Supreme Court's orders as precedent. He says the rulings require the courts to adjudicate difficult issues after joining an opinion allowing SBA to go into effect on the ground that it raised difficult procedural issues just on and on and on and on. So questions, reactions about the speech? Your discussion of his repeated invocation of Tushnet made me think of something that I had wondered throughout the speech.

So, you know, and you alluded to this earlier, this question of does did we learn in this speech that Sam Alito, you know, scours the internet for criticism of him and the court, that he hate reads, you know, liberals criticizing the court and the shadow document and other things. I mean, I was really surprised by this, right? So we obviously, we did an episode and we talked at length about the Federalist Society speech from about a year ago. And in that speech, it felt to me like we had, what we learned from that

speech was that this was someone who consumed a purely conservative media diet, right? Like this kind of constant drumbeat about religious liberty being under attack. It was like, oh, this is a man whose TV is feeding him like year round content about the war on Christmas. Like that's why he thinks that religious liberty is under attack. And yet Fox News is not covering criticisms of the shadow docket. So he's not just consuming that kind of media. So it was interesting. I was curious. Has his media diet changed or is he just consuming a lot of conservative media but then also dabbling in this very particular way into media that will sort of produce content for the enemies list and sort of, you know, grudge cultivation. Or does he actually just take it a lot? Or does

the public information office's seemingly new practice of excerpting court commentary, including from Twitter, has that having some effect on him? Like, I had a lot of reactions, and I don't know whether we're seeing something new evolving Sam Alito or whether he just actually has always read this kind of criticism, and I just didn't realize it. It's like a Google alert for him. Oh, yes. He's got a clerk who's got a test with the Google alerts, and the clerk comes running in and is like, well, you will not even believe what Leah Lippman, if she were visible to the naked eye, just tweeted. And that's how it rolls.

And I just want to make one actually serious point, which I make whenever we talk about this, because it's been obsessing me for years. And that is, if you think about the justices who have been really apt to name their enemies, right? It's not Justice Sotomayor. I've never heard Kagan say a bad word about anyone, you know, who said something bad about her. They just move on. And it's really interesting to me that, you know, Justice Thomas, if you read his autobiography, like the last chunk of the book is an enemies list.

Like it's a full on here are the people I hate. Justice Alito famously used to say, I will cross to the other side of the street and not walk on the Senate side of the street because of how they treated me and made my wife cry during those hearings. And right, he didn't go to the Obama courtesy meeting at the court. He was in the building that morning when Obama came to visit. And then Kavanaugh just yelling at his hearings about the liberal groups that were out to get him. And I just, one little just slightly interesting doctrinal point is that you can kind of draw a straight line between some of that and some of the ways they talk about the internet and the press and the public in a lot, a lot, a lot of cases, starting with like the Citizens United ideas that Justice Thomas was floating then and Dovey Reed, like they really actually have let it leach

into the way they think about us, not just as journalists, but as the public. And if that doesn't scare your face off, like it should, because I really think this isn't just famous people critiquing the press. This is people who are constructing doctrine around what is free speech, what is journalism, what right of access we have. And that really, I think, in a deep, deep way should scare your face off. It scares my face off. Sorry. I mean, Dahlia, we were supposed to make this fun and light again.

I know. Crap. Okay. So let's pivot to the term that begins this Monday. So by statute, the court term begins the first Monday in October. That's the day that most of you not here at the live show will be hearing this episode. So we're going to start with oral arguments. So first, just let's talk about the format that the court will be using when it resumes in person. I think in person, I mean, look, if more of them come down with COVID, they're not doing anything in person. But at least where we sit Friday afternoon with only Brett Kavanaugh having tested positive for COVID, as far as we know, seems like all systems

go resuming in-person arguments on Monday. So the in-person audience, at least as of now, is going to be limited. So the court won't be open to the public. People with approved press passes will be there. Right now, that's just one press pass per outlet, although I guess that could change. And then obviously counsel will be present along with the justices. Give me a press pass, cowards. Do it. Let me be there. I feel like that's not going to happen anytime soon.

But hope springs eternal. Is it wrong to say I want to see like a mannequin in a robe in Justice Kavanaugh's seat with like a TV on his head with like Justice Kavanaugh zooming in. That'd be like the best. That would be the best. All right. Hopefully somebody in the court is listening and can make that happen. It's just the John Oliver puppet, right? Didn't he do the Supreme Court, the dogs? So maybe they just need a Cavadog. A Cavapoo. A cabapoo. All right. Well, so whoever's there on the bench Monday, here is what we understand the format will be. So the justices, again, will be back in person, but they are somewhat sticking with the seriatim format for asking questions that they used when they were doing purely telephonic arguments. So remember, back then, each justice would have the opportunity to ask questions for a discrete period of time in order of seniority.

Well, a discrete period of time, but with the Chief Justice giving additional time to Justice Alito, of course, enabling Leah to crank out rage articles about that phenomenon. So they are doing – they're going to keep doing that in person, but they're going to do that after the advocates have time for uninterrupted opening statements and after the justices have a chance to ask questions in a more unstructured format. So advocate opening, five unstructured minutes, and then they're going to proceed seriatim. So I think it's kind of a weird new approach. What do you guys think? Weren't people mad about the seriatim approach that was so stilted? It didn't really allow for conversation and sort of an organic development of the argument. So why keep it in any form? They like it clearly. Well, I think Justice Thomas likes it. I mean, yeah, like he Justice Thomas started speaking. So who's going to do away are in the Thomas court, we need to keep it. I mean, it's interesting, too. I one of

the knocks on it, you know, and I think generally the press hated it. But one of the knocks was the justices couldn't pick off their fifth vote, right? Like that there's a really transactional value in saying like, oh, it seems like Justice Kavanaugh is worried about this. Let me, Elena Kagan, press that. Like that's actually the point in some ways of oral argument is for them to smoke signal to each other how they're kind of getting together. And Sari Adam killed that. I mean, almost entirely. of oral argument is for them to smoke signal to each other how they're kind of getting together. And Siri Adam killed that. I mean, almost entirely. And I almost feel like it's this sort of slightly sad metaphor, wah-wah, just of the ways in which that almost doesn't matter anymore. Yeah. Like they're all beyond persuasion at this point, so why pretend otherwise?

When you have six, you don't need five. Yeah. And there is that quick period of crosstalk, like five minutes. But in order for it to serve the function that you were describing, Dahlia, it would have to follow the seriatim questioning. So Elena Kagan can pick up on Kavanaugh's, you know, sort of like potential like joints of entry and like, you know, find a way to exploit them. But it's hard to do it in the five minutes. And I just think that five minutes is going to be really chaotic if that's the only time they all have to get in and respond to one another. And then the weird seriatim questioning. So, I mean, I guess the one positive thing I'll say is I, I mean, they're so resistant to doing anything different ever. So anytime they're willing to experiment at all with format, I view that as

a, you know, at least minimally positive development. So I guess maybe if it doesn't work that well, they flip the order or they rethink it. But it suggests to me that like they're not so wedded, at least, you know, in this tiny aspect of the operation to the way things have always been done. And that I think is a good thing. Yeah. So the new policies also include some COVID protocols. Counsel planning to attend have to take a PCR COVID test on the morning before argument. And an attorney who tests positive will argue remotely by telephone. Court also asked the attorneys to wear masks. But what's unclear is what are they going to do now that Justice Kavanaugh has tested positive? Also interesting, they don't appear to have a vaccine

requirement but are requiring masking and testing. So not sure what that reveals. And not same day broadcast or yes? They are live streaming the audio from the court's website. So that's the huge big deal here, right? I mean, that's to Kate's point, because that was the thing that like us olds were like advocating for for years. So in a weird way, almost more than the strange hybrid questioning, like I'll take the slight transparency over no transparency. I mean, they couldn't go back. I mean, there's just no way that they could go back to that, I think. Well, I think it's going to be, well, the real question I think is when they

actually do start letting like more audience in, will they try to go back? But I agree. Like this feels like there's maybe a one-way ratchet. Like they're not going to be able to, once you grant certain rights, you can't take them back. Right, ladies? Or can you, Kate? Surely they believe that. You're so funny. Speaking of granting certain rights and taking them away, we have some developments in the Texas SBA case. So the abortion providers who initially and unsuccessfully sought the Supreme Court's intervention to block SBA before it went into effect have now filed for cert before judgment in that case. So cert before judgment asked the court to hear a case after a federal trial court has heard it, but before a federal appeals court has issued a final judgment. In the case, it used to be rare that the court would grant cert before judgment. Between August 2004 and January 2018, the Supreme

Court granted no cert before judgment petitions. Since then, it has granted 10. So just in the last three, almost four years, though I guess only three led to plenary review. We should say these stats are all from our former guest commander and Senate Judiciary Committee hearing star, Steve Loddick. One of the cases in which the court did grant cert before judgment in recent years that our listeners may be familiar with was a census citizenship case in which the Trump administration, you may recall, was so eager to enforce the Voting Rights Act by including a citizenship question in the 2020 census that it got the court to skip the Second Circuit and to take the case directly from SDNY. Let's put a pin in that case. We will come back to it. But on SB8, I'm curious, what do people think are the odds? Since it obviously in

recent years has shown a willingness to take cases, right, skipping the appeals court through this cert before judgment procedure. What are the odds of the court taking the case now? Dahlia, do you have thoughts on it? I actually thought last week they might when this was first sought only because, and I feel like one of you said this on the Texas Tribune panel, but again, the self-own of SB8 was so shocking and unnecessary, right? They were getting to dubs anyway. So the doing it lazy and sloppy on the shadow docket and the blowback could have been completely averted if they just handed down a very thoughtful, you know, some kind of like, we have to enjoin this for the

same reason that, you know, we did all the crap we did on the COVID docket, which is that fundamental rights are being, right? That would have been, oh, my God, they would have looked so judicious and dignified and not partisan. So they didn't do that. And I thought, hey, this gives know one of you said this, Leah said it on the Tribune panel, but like four weeks of this being a front page story could have gone away, right? You know what? Let's enjoin it because as the providers are now arguing, like there are on the ground catastrophic effects. I really thought they'd use that escape hatch. But, you know, what do I know? They can't take the case.

Sam needs more sleep. He's tired. So no time. No time for that. Did any of you think they were going to reverse themselves? I mean, I guess I just thought they wanted an elegant out. I think they've endured. They've taken the heat already.

So, like, at this point, I'm not sure. Maybe two weeks out or a week out, they would have thought, oh, God. but maybe they think that, you know, they've weathered the worst of it. And so I take it up now, they'd rather proceed with Mississippi and then Texas down the road, I think, but I'm not sure. And they have the United States case. So I don't know. We did want to also note two other SB8 items of business. First, yesterday, the House Oversight Committee held a hearing on SB8 featuring our own Melissa Murray, other powerhouse witnesses like Loretta Ross, Gloria Steinem, Dr. Ghazala Moyeti, Malia Aziz, and a number of women members of Congress who shared their own quite powerful stories of abortion. On the morning we are recording, there was a hearing

before Judge Pittman in Texas District Court on the federal government's suit against SB8, which we've discussed. Lawyers for the federal government argued and Texas argued other interveners appeared on video. Did any of you watch some of this? I watched a little, Dolly. Did you? I watched. Yeah. Yeah. I was teaching. I was like outside of my classroom. It was like I taught at 11. It's like 1050. Like watching the thing on my phone and was like I literally was teaching Casey today. And I was like, it's too procedural. I can't just like toss the Zoom up and like watch it for part of class. But I was tempted to do it because it was like a pretty riveting hearing. Maybe I should have. But so I had to turn it off. So I only saw a little bit of it.

I watched the U.S.'s lawyer for a little bit before jumping into a conference that I had to attend. But I mean, first of all, poor Judge Pittman, he just looked like he was in hell. Is this a good place to say that only male, only white lawyers spoke to an only white male judge? Like the optics, and by the way, like the entire time they were talking about the providers and the pregnant people, they, I mean, it was extraordinary that women were talked about as this inchoate aggregate, you know, I mean, I just think again, like how hard is it to fix the optics here? And they, it's just weird. Well, there were women there. They just, yes. So we should say Brian Netter, I got to say Brian Netter, who is the government,

the federal government's lawyer, is a fantastic lawyer. And I actually think did a great job. And I, but I hear you on the optics, but I was curious, there were women on the, like, you know, when you, when you were in like the gallery view, but I didn't know if they were law clerks or who they were. Nobody spoke. They didn't speak at all. They thanked, they thanked Judge Pittman at the end. But again, it's trivial. I realize it's like, or I don't want to say it's trivial. I think it's a non-trivial thing to talk about women for three hours and not have a woman speak. It felt like so handmaid's tale to me. And then I guess, I mean, I will let Leah wax on about this, but just the gas lady, like the frantic attempts by Texas to say that the law was completely not crafted to

evade judicial review. It was absolutely a good faith effort to comply with Casey, like the level of just straight up, there's not a single provider in Texas that has been chilled from providing an abortion at six weeks. And like saying that with a straight face, like just looking into the camera and telling the judge all of these things. And, you know, it was really like, I guess I'm just always shocked when people just straight up lie at me. But like lying at a judge. You know, on some level, I shouldn't have been surprised given what they said in their brief, you know, among other things, they argued that the United States couldn't sue because Texas SB8 is actually stimulating rather than obstructing interstate

travel as women leave the state to obtain abortions. Like this is literally the future of abortion litigation in the United States. It's not an abortion ban. It's a massive tourism stimulus. And yet somehow, like the hearing itself was still super odd. So you mentioned, you know, not only does this law apparently not circumscribe judicial review, it actually provides for more judicial process than most laws. It was astonishing to hear this. And also, it's not a ban because you can get an abortion in those two weeks, six weeks. Yes. Two to six weeks. Truly galaxy brain stuff on display at the hearing.

Are you there, God? It's me, Texas. Right. The long conference, as we mentioned earlier, was held this week, and the court granted cert on a couple of cases. We're going to cover them in more detail. They've all been noted in the news, so surely you're aware of them. One is Senator Ted Cruz's challenge to federal campaign finance rules. We will come back to that because we only have Dahlia here for a little bit, and we

want to get her take on the barn burner of a term to come. So put a pin in it. We will come back to these cert grants later. One piece of news to include in the happiest news that Kate alluded to earlier, Dale Ho, I won't say his nickname because he is going to be Judge Dale Ho, was nominated officially to the United States District Court for the Southern District of New York. Dale was one of the members of the Biden administration's eighth batch of judicial nominees, a truly excellent, diverse group of 14 nominated to seats on both federal and D.C. courts. I at least wanted to highlight two others.

Sarah Garrity, nominated to the Northern District of Georgia, a Michigan law alum now at Southern Center for Human Rights, as well as Lauren Olicon, nominated to the D.C. Court of Appeals, currently the Solicitor General for D.C. One thing we should say was conspicuously missing from the list of 14, which is the D.C. Circuit, right? Like, let's get that done, please, by an administration. That's an important court. You don't really want to let vacancies just sit there, right? No. While we're citing people for being total badasses, can we also give a strict scrutiny shout out to our former guest and total rock star, Professor Fernita Tolson, who joined us last season for an episode on Brnovich versus DNC, which was in session. And one Senator Ted Cruz received a very pointed tutorial about the law of racial discrimination because Professor Tolson brought all of the

receipts and put them all out for Senator Cruz. And it was kind of fabulous to watch. So way to go, Professor Tolson. She was fantastic. Another little piece of news, a Wall Street Journal investigation found that 131 federal judges broke the law by hearing cases where they had a financial interest. This is an investigation that found that these judges failed to recuse from 685 lawsuits from 2010 to 2018 involving companies in which they or their family held shares. You guys got to do better. These conflict check programs you're using are clearly letting all kinds of stuff slip through the cracks when parents or subs are actually the name parties, but really you have a financial interest in the case. Do better. Well, I mean, it's easy to do better. Like when I was a management consultant,

we were not allowed to invest in the stock market unless it was in mutual funds. Like, why can't that be a rule? Right. Did anyone clock the graphic? I was really struck by the Wall Street Journal graphic because it looked like it was 50-50 women and men. And I didn't know if that was representative of the breakdown of those judges or if it's just that women have husbands who have investments. I thought that was super interesting. Well, if you read the story, one of the judges on the Sixth Circuit was all discussed in terms of like, she was sort of a passive investor, and her husband was really calling the shots. I have to confess, I read it on Lexis. And so it didn't have a graphic, I just got the text. I was I my first reaction was like, look at all the lady judges. Like that was I had this completely. That is true equality. That's what we're striving for.

If we can have no ethics, then we've really even if we're invisible, we're invisible with no ethics. We have no reproductive rights and no ethics. Winning. You've come a long way, baby. So maybe we can just do the term preview of the cases and skip the themes, although I am going to get to preview Wooden. So that is now part of the term preview. I am laying my ground here. We can just sort of end the episode and then just do like a bonus content, 20 minutes of just Leah talking Wooden. No, just kidding.

You could do it in the real show. Okay, so let's very briefly talk about, just mention a couple of cases. We're going to go deeper on a lot of these, either just before or just after they are argued. So maybe just we'll mention a couple highlights here. The first we wanted to mention is scheduled for argument November 3rd, NYSERPA versus Bruin.

That's a case involving New York's requirement that applicants for permits to carry concealed weapons show proper cause, that is a special need for self-protection, before getting licenses to carry concealed weapons. These plaintiffs were denied those unrestricted permits, but they did get permits to carry for like hunting and target practice and one during travel to work. But there is this question about whether New York's law, which is very similar to the law in effect in many states, is consistent with the Second Amendment. We will see what they do with history.

It seems to me that the historical material, which is just much better developed than it was when the court took up the sort of big Second Amendment question in Heller in 2008 does show how extensively cities and states have regulated carrying weapons from the time of the founding and well before. So if Heller prescribes a method of assessing gun restrictions, it asks about history. And if the justices are faithful to that method, I would think New York wins. But that's probably not gonna happen. Probably they're gonna strike down the New York law and declare that the right to keep and carry arms is fundamental and that all regulations of that right are subject to strict scrutiny. And that is going to be a change that makes it much, much harder for states and cities to regulate guns in meaningful ways.

So that's where I predict we're going. Can we highlight some of the noteworthy amicus briefs in this case? Because there were some surprising ones. One was from former Judge J. Michael Ludig alongside Carter Phillips and some other folks in support of New York, interestingly. And Judge Ludig was sort of a stalwart of the Federalist Society when he was a judge. And yet he is taking on this position in support of the state and these gun control laws. So that was actually really interesting. And Leah, you had flagged the brief from the Public Defender's Office, which was captioned

Black Attorneys at Legal Aid, Brooklyn and Bronx Defenders. So what was this brief about? So this brief highlights the disparate effects that New York's restrictive gun laws have on communities of color. So they say that New York enacted the firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities. And that remains the effect of its enforcement today. And it highlights some of the stories of particular clients, you know, who have fallen under the ambit of these restrictive gun laws. Can I ask a question? Could this brief go either way here? Because I know one justice who's going to be like, inject this brief into my veins. I mean, no, this brief will go one way. It will go into Sam Alito's mouth at oral argument and Justice Thomas's. Yes, that was the one I was talking about. But like, this is the perfect Woke Alito and Trollito brief, right? Like, you libs say you care so much about communities of color, right? Let me own you. It's made for that. But it's actually a much more subtle argument

because they're actually arguing that these restrictions historically are rooted in a kind of racial injustice, the same kind of argument that Justice Thomas makes in trying to shade abortion as a racial injustice. But I doubt it's going to go the same way here. Just a plug for Carol Anderson's book, The Second, which if folks haven't read it, was there's not a lot of books, although Carol does tend to write them, that make me absolutely rethink everything I thought I knew. And that just sort of laying out the history of, you know, how the Second Amendment was crafted and what it was intended to do and how it was enforced and how it continues to be enforced. It was a real, like for me, game changer. So this would be a good time to note, we have a special episode coming up and maybe we will

release it in advance of the Bruin argument where Carol Anderson and I were in conversation about this book at the Commonwealth Club in San Francisco. So we will get that to you all. We were saving it for a rainy day, as it were. And this seems as good an opportunity as any. Dahlia, did you want to highlight the ACLU brief in this case, too? I love the ACLU brief. They make an argument that I feel like I've been, as a refugee from Charlottesville 2017 Nazis, been trying to argue not very coherently for a long time, which is you can't talk about the Second Amendment without talking about the implications on the First Amendment and vice versa. And that there's a reason that, as you all just said,

that cities have been allowed to really carefully restrict weapons. And it actually has to do with like the marketplace idea and the public square and the ability to speak without being chilled. And I really, really love this brief because I feel like it finally makes this argument that I've been like failing to say coherently. But I really think you cannot analyze when the First and Second Amendment intersect like this, or I would say collide like this, you can't analyze them in a completely disaggregated way. So I just think it's a really smart, cool brief. So some other cases that are going to be argued first week of October. So one of them is Hemphill v. New York,

and this is a Confrontation Clause case and the first Confrontation Clause case that will be heard by this newly constituted court. The Confrontation Clause generally prevents the government from introducing evidence from witnesses if the defendant hasn't had an opportunity to or can't cross-examine those witnesses. Hemphill is whether or when that rule applies where a defendant has arguably opened the door to the admission of evidence that otherwise would be barred by the federal rules of evidence. So this is the kind of classic trick that lawyers on TV always play. They get an opposing counsel to allude to some kind of evidence. They really want to get admitted in court, but they can't. And the question here is whether the defendant opened the door to the state admitting the evidence it otherwise couldn't get in without violating the confrontation clause. And specifically, the defendant suggested that another person was the shooter in this case. And the state then introduced the elocution, the confession of that

other person, which didn't contain an admission that he was the shooter, but that other person didn't testify. So the defendant couldn't shooter, but that other person didn't testify, so the defendant couldn't cross-examine him. So this will be a really big criminal procedure case. And again, we will really get a chance to see if Justice Gorsuch's interest in criminal defendants carries over into this aspect of the rights of criminal defendants. Another case that is being argued is Brown v. Davenport, a habeas case about the interaction of the harmless error standard and the restrictions on habeas that Congress created in the Anti-Terrorism and Effective Death Penalty Act.

Under the harmless error standard, courts will uphold a conviction even if there was a constitutional error at trial if the courts conclude that the error was harmless, which many courts take to mean would the defendant have been convicted anyways if the courts conclude that the error was harmless, which many courts take to mean, would the defendant have been convicted anyways if the constitutionally problematic evidence was excluded? Under EDPA, the Federal Statute Governing Post-Conviction Review, federal courts can't invalidate state criminal convictions unless the state court decision was objectively unreasonable. And so the question here is whether federal courts have to ask if the state court's conclusion that an error was harmless was also objectively unreasonable. Just a side note, the lawyer for the habeas petitioner is not a partner yet at WilmerHale, Tasha Bahal, a woman of color who will be arguing at the Supreme Court on behalf of the habeas petitioner, so had to highlight that. So another case scheduled for

argument in October is United States v. Abu Zubaydah. This is a case about the state secrets privilege, one of two state secrets cases the court is scheduled to hear this term. This case is a complicated one involving a Polish criminal investigation, discovery orders growing out of proceedings before the European Court of Human Rights, ultimately federal court litigation. Basically, Zubaydah is seeking information from the federal government about his time in CIA detention, particularly involving two CIA contractors for use in these foreign proceedings. The federal government sought to block his access to some of this material, citing the state secrets privilege, and lost in the lower courts, including the Ninth Circuit and the Trump Justice

Department challenged the Ninth Circuit's order. And I think cert was granted before the change in administrations. But the Biden Justice Department will be arguing similarly that the Ninth Circuit erred and in ordering disclosure of these materials and that the state secrets privilege continued to block them. So I'll be interested to see if and, you know, if so, how there's any, you know, change in argument between the Trump and Biden Justice Department's positions on state secrets and sort of generally what the argument looks like. But there's another state secrets case coming down the pike later in the term. And then one of the cases that's going to make this a barn burner of a term is undoubtedly Dobbs v. Jackson Women's Health Organization. This is the challenge to Mississippi HB 1510, which is the law that prohibits abortion

at 15 weeks, 15 weeks after the person's last period. A lot of questions here. How will this case intersect with Whole Women's Health v. Jackson, the Texas SB8 case, or any other case that is filed with regard to SB-8. How does the interaction of those two cases change the way the court receives this challenge to a 15-week ban? Have we really moved the Overton window to some degree such that a 15-week ban may actually feel more reasonable to the court than a six-week ban? And maybe that's a reason to uphold it.

I think we're going to get a lot with the press and the media and the commentators in terms of how this is covered. And Dahlia, this is, I guess, a plea to all of you to cover this as transparently as possible, because I think it is very likely that if the court does not explicitly overrule Roe or Casey, we are going to hear media trumpeting that Roe has been saved, abortion rights have been saved, and all of this in advance of the midterm election. And then they're going to just turn around and take up another case where they will have a full chance to gut it. And no one will have appreciated how in the interim abortion access will be completely eviscerated, regardless of whether Roe and Casey are formally overturned.

And with that- We should say, we're not worried Dahlia is going to convey this. No, we're not worried about you, but like, tell your people. Exactly. Let me just say one quick thing, which is Steve Vladek, he who will not be named, but will be named by Justice Alito. And I wrote a piece on Monday talking about how these curtain razors are so utterly useless because they don't fully explain, you know, like it doesn't help to make crazy predictions, but they don't fully explain what

the options are. And we took a little heat from our colleagues in the press. But I will say this is one of those places where if, and maybe goes to Michelle Goldberg's really depressing piece in the New York Times Friday, that if what particularly women are waiting for to be activated is the sentence Roe v. Wade is overturned, it's going to be a really, really long couple of years. And just listening to Texas, even at this hearing on Friday, arguing like, it's not a ban. We're just saying that you can choose to have an abortion for seven minutes. And that's the kind of stuff we're going to get a lot of. And just again, like file under gaslighting, if we don't call it what it is, then we are complicit in that gaslighting. That's lecture over. So now quick rattle off of other cases to watch, and I get to talk about Wooden.

Okay, so other cases to watch. American Hospital Association versus Becerra. This is the authority of administrative agencies to make decisions about the statutes they administer, which could implicate the authority of the administrative state. Another religious liberty, religious discrimination case, Carson versus Macon, about funding for religious schools and whether states can prohibit student aid from being used for religious instruction. Also a case to watch, United States versus Vallejo Madero, about whether Congress can exclude Puerto Rico from the Social Security program. Those cases will be argued later and we will cover them more in depth, But a case that will be argued on the very first day of the term. This episode is so hard for me because really I wanted full episodes about Dale Ho, a full episode about Sam Alito's speech, and a full episode about Wooden, and now they're all packaged into one. Anyways, that case,

Wooden versus United States. This is the ACCA case I have been waiting all summer to talk about, and I get five minutes. Here we are at our term preview. Melissa, why did you shut off your video? That was not nice. Okay. Like Sam Alito, I have a list of the government's points in its brief, and I will proceed through a 10-point reputation while chugging water and getting increasingly heated. Hydrate, Leah.

Hydrate. Hydrate. I will not do that, but I will say a few things. So the issue in Wooden is about the proper interpretation of ACCA, which imposes a mandatory minimum of 15 years imprisonment on persons who are convicted of unlawfully possessing a firearm if they have three or more previous convictions for a violent felony or serious drug offenses committed on occasions different from one another. The question in this case is what does it mean for convictions or offenses to be committed

on occasions different from one another? The defendant says, well, it depends on taking various circumstances or contexts into account, whether they're different criminal opportunities. The government basically says, with one revealing caveat, offenses are committed on different occasions based on the precise time at which an offense is committed. So the differences come out on the facts of the case. Wooden was convicted of burglarizing multiple storage units. So one night he goes to a storage rental facility, takes a drill, and he drills through multiple storage units, just one after another. Like, literally the drill goes through multiple of them. And the government says, well,

you took stuff out of the different units at different times, different crimes, 15 years. The government is wrong for, like I said, a 10-point list of reasons, but I'll just name a few. One is common usage. So the defendant's reply brief rattles off instances where occasion doesn't mean one precise moment in time. So like on this occasion, the pitcher struck out only 12 batters and hurled 127 pitches. All those things happened at different moments. The government's own brief even abandons the timing test and just urges a let's be as bad as we can for criminal defendants approach. So they say, yes, usually occasion means was an offense committed at a particular moment in time. But if two accomplices commit crimes at exactly the same time as one

another, those would be different occasions. But that just gives away the whole game because it illustrates that the government isn't actually arguing for a time-based test. They are arguing for a meaning of an occasion that includes time but also includes other considerations. Statutory structure, the title of ACCA, which I didn't give at the beginning is the armed career criminal act it's about recidivism and distinct criminal opportunities there's consistent usage other statutes enacted before ACCA use occasions to mean not time but context specific approaches and other reasons so part of why I think the case is notable is just the Biden administration's position so this language must be committed on occasions different from one another was actually introduced by Senator Joe Biden. And like I said, I feel like Wooden's argument is a more plausible one. And yet the government has continued to argue for this position. And I just kind of wonder why. Like, are they smarting from their unanimous loss when they tried to argue for the criminal defendant's interpretation in Terry?

Like, it was just curious to me. I kept that to three minutes. I want a prize. We're all stunned into silence by the fact that we had budgeted more time. That was great. None of us were drinking. We were not drinking. We were listening.

I just let it wash over me. Let the ACA wash over me. That was great. None of us were drinking. We were not drinking. We were listening. I just let it wash over me. Let the ACA wash over me. It was great. There you go. So we don't have a ton of time to cover some big themes for the term, but let me just sketch out a couple really fast. And I think Justice Sotomayor put it best in the speech that was hosted by the American Bar Association, where she said, there's going to be a lot of disappointment in the law, a huge amount. And this just reminded me of that scene in Pretty Woman where Julia Roberts goes back to the store that's been so mean to her. And she's like, big mistake, huge. Like, that's what that was like for me. Yes. Leah, what other themes can we highlight? Like, what is like like what encapsulate this term in one sentence?

The Overton window is on Mars like that. The entire game has shifted. You know, when you think about, well, how do you assess whether the court is moderate or institutionalist? You consider what the parties are arguing, but the parties are arguing for things that were completely off the wall 10, 5 years, 5 minutes ago. And now they're decidedly on the wall. Right. So examples, because I mean we're going to get so much crap from people about how our hyperbolic lady parts are leading us to basically make everyone think the sky is falling down. Why is the sky in fact falling down? I mean, one is the amicus brief you highlighted

on Twitter that was filed in the Dobbs case by Texas Right to Life. Of counsel on the brief is Jonathan Mitchell, one of the authors of Texas SB8, as well as Adam Mortara, the person who yanked the win away from the criminal defendant in Terry last term in the First Step Act case. And in that amicus brief, they say, look, in addition to overruling Roe and Casey, you know, in this case, Dobbs, you should also leave the following decisions hanging by a thread. Obergefell versus Hodges, the decisions recognizing marriage equality, Lawrence versus Texas, the decision announcing states can't criminalize same-sex sexual intimacy between consenting adults. And, you know, they also indicated Griswold versus Connecticut was not on firm ground. or institutionalists when these are some of the positions that are now on the table by lawyers whose positions are being well received, you know, in the Supreme Court, in the U.S. Court of Appeals

for the Fifth Circuit, and elsewhere. When I highlighted this, I mean, I was just sort of like sound the alarm in part because it seemed like they are actually laying out the blueprint. Not that the court is going to take up these invitations to overrule these cases tomorrow, but you see the long-term plan. All of this is rooted through Griswold and the right to privacy, which they have been criticizing and assailing for years, and they will not stop. And I think it's not going to end at abortion. I don't know where it will end, but it's not going to end at abortion. It will also include assaults on contraception. I think this is Justice Thomas and the whole racial invective around Margaret Sanger and the birth control movement and eugenics is not just about abortion. I think it's also meant to paint

contraception with the brush of racial injustice. And now we're also getting Lawrence and Obergefell. So this is just like a highlight for the LGBTQ community. Everyone, like Black people, all of us, our fates are intertwined, like full stop. And yes, I sound hyperbolic. I sound like I have hysterical lady parts. But I don't think you can underscore this more importantly. This is not just about whether you like abortion. Everything is on the table. I also on abortion specifically just to say something not from pulled from briefs, but from some of the rhetoric emanating from Capitol Hill this week. I mean, I was just struck by how I mean, it just feels like we are within like months

of full throated arguments for a constitutionally grounded, protectable, fetal right to life that the 14th Amendment fully protects. Like no one's talking about returning anything to the state. I mean, Mike Lee, Josh Hawley in, I watched only bits of both the Senate and the House hearings the last couple of days, but I was struck by how little focus there seemed to be on letting states decide and how a lot of the far right of the Republican Party seemed to be skipping right to, okay, we actually have to protect a fetal right to life. And that means, you know, no abortion, like not some states can have it. And I think we're going to be there at warp speed. And it's creating, I mean, I think it's just really important to highlight because you all keep, I think, very correctly using the word hysterical.

And I think that it's interesting that, you know, it's not just the Overton window. It's the it's the lightning speed of the Overton window. And so it's happening literally before our eyes. I mean, and, you know, we're seeing it in the election context, right, where people are finally absorbing vote suppression. And like, that's not the problem anymore right now. It's just complete subversion of elections. And I think the same thing is happening where, you know, women are, I think, trying to keep up with what has happened. But like, no administration had no rape exception, no Republican administration. Now it's gone. And that happened like boom. And so I just think it's both the extreme nature of how fast we torqued. It's also just that it's happened so quickly that

as you're processing weight, I mean, really are we at a hearing where sane people are saying that six weeks is plenty of time after a rape? And we are. Now we're there. Now we're there. And just to pick up on something, Melissa, you had suggested earlier, and we've also talked about on the podcast, when we talked about Justice Thomas's box concurrence indicating that the root of contraception laws, and he also argued abortion, was in eugenics, you suggested that, yes, his history, and this you suggested that, yes, his history, and this is your article, yes, his history is all wrong, but that's not the point.

His point was to put this into the conversation and basically make it a talking point. This is now the talking point. At the hearing that I was at yesterday, I don't know how many people talked about eugenics. It is in the ether. They are seeding this ground and literally changing the social meaning of abortion and contraception by reframing it as tools of racial injustice. Yeah. And it's astonishing how quickly it has come. So we are very much running long. Just want to say one thing on court culture. We're not going to get to talk about our piece about the podcast, but the piece is about, you know, making the podcast and commentary surrounding the court.

And I think it's related to the points we've been talking about, which is who's been raising alarm bells about the court and who was at the same time being told to calm down ladies and stop talking about the handmaid's tale. And, you know, who is still insisting on let's talk about, you know, the procedural issues of Texas SBA, putting aside the merits and putting aside the issues like people haven't been able to access abortion in Texas for over a month. Thank you all so much for listening. Thank you especially to our GLOW subscribers. If you would like to be invited to the next GLOW Happy Hour live show and hear all of the things we said that didn't make it into the final tape, sign up to support the show

at glow.fm forward slash strict scrutiny. Thanks as always to our wonderful producer, Melody Rowell. Thanks to Eddie Cooper for making our music. And thanks especially to Dahlia Lithwick for joining us for this monster session and for inspiring us along the way.