Strict Scrutiny - Turning Fan Fiction Into Reality

Episode Date: November 28, 2022

Melissa, Kate, and Leah preview the cases that the Supreme Court will hear in December-- from election law shenanigans, to discrimination as protected speech, to making fraud great again.  Follow us on Instagram, Twitter, Threads, and Bluesky

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

And I'm Melissa Murray. And today we're going to preview the cases the court will hear in its two-week December sitting, which starts on the last week of November. So, oh well. We'll also walk through some court culture, as always. But first up, case preview. So Leah, do you want to get us started? Yes, there are two blockbuster cases in this sitting, 303 Creative versus Alanis and Moore versus Harper. And both are going to be heard in the second week of the sitting on December 5th and 7th, respectively. But these cases are monumental. So we are going to spend most of our time covering them. And we will touch on the other cases, some of which we'll plan to return to on future episodes.

Okay, so let's start with 303 Creative versus Alanis. We've talked about this case previously, including on our term preview. And 303 Creative is essentially a follow on to the 2018 case Masterpiece Cake Shop. In Masterpiece Cake Shop, the court was asked to consider whether claims of religious freedom trumped the operation of a state-level anti-discrimination law that prohibited those doing business in the public sphere from discriminating on the basis of, among other things, sexual orientation. So the backstory of Masterpiece Cake Shop involved Jack Phillips, a self-identified Christian baker who refused to provide wedding cakes for same-sex weddings or marriage celebrations in violation of the Colorado anti-discrimination law.

Phillips argued that the First Amendment precluded the state from applying the anti-discrimination law in his case. When the case reached the Supreme Court, the court, in a decision written by Justice Anthony Kennedy, concluding that the administrative tribunal that first heard the claim against Phillips had exhibited hostility toward Phillips and his religious beliefs. So the court basically took an off-ramp, never actually answering the question of how to reconcile the First Amendment and state anti-discrimination laws. And after punting on this monumental question, Justice Kennedy essentially dropped the mic and peaced out, announcing his retirement just a few days after the decision in Masterpiece Cake Shop was announced. And as we

know, Justice Kennedy was replaced by none other than our favorite justice slash coach, Brett Kavanaugh, who is now part of a sixth justice majority that appears incredibly solicitous of religious freedom. Which brings us back to 303 Creative, where this conservative supermajority will certainly decide the issue left undecided in Masterpiece Cake Shop. And the facts of 303 Creative strongly recall Masterpiece Cake Shop. So Lori Smith, who is the petitioner, is a Colorado web designer, although she's not actually set up her business. We'll get to that in a minute. But as an evangelical Christian, Smith says she does not want to design websites for same-sex weddings or marriage

celebrations because doing so would make her, quote-unquote, complicit in a sin, thereby violating her religious beliefs. Moreover, as she begins the process of setting up her business, she wants to include on her website a notice explaining her position on same-sex marriages. Under Colorado's state-level anti-discrimination law, a person doing business in the public sphere may not engage in discrimination on the basis of sexual orientation. They must take all comers. Accordingly, Smith argued in her cert position that compulsory compliance with the civil rights law violates both her free exercise rights and her right to free speech, all under the First Amendment.

Interestingly, though, although she asserted rights of both free exercise and speech, the court only granted cert as to her speech claim, declining to grant cert on the free exercise claim. You know, I don't know. Do you guys have theories on why that was? Yes. Yes. So let me offer one, and then I'm curious to hear Do you guys have theories on why that was? Yes. Yes. So let me offer one, and then I'm curious to hear yours. So one possibility may be that the justices realize that they have done quite a lot on free exercise already in the last couple of terms in City of Philadelphia versus Fulton, in Carson versus Macon, in Kennedy versus Bremerton. So that's one possibility. They're just taking a breather. Two, maybe this... You sweet summer child on its face. You sweet summer child restraint. What is judicial restraint?

Okay, so low-hanging fruit. Probably that's not it. Maybe a more plausible theory is actually the spate of religious exercise claims we are seeing sprouting up around questions of abortion rights has prompted the court to slow its roll on free exercise. Is that a possibility from the other direction? Ding, ding, ding, ding, ding. Tell her what she's won, Leah. What have you won? I think you've won a YoloCourt shirt. You've got the vibes. So I think that one is definitely plausible. As we've talked about on the show, there have been numerous challenges to abortion restrictions couched in terms of free exercise on the ground that under certain religions and religious faiths, you know, abortion is sometimes permitted, sometimes required. And so it's possible that under the court's burgeoning free exercise jurisprudence, these are sound claims. That is, it doesn't matter the fact that these laws don't target religions. It doesn't matter that they don't speak in terms of religion. What matters is that they are

affecting someone with religious beliefs and religious beliefs that are inconsistent with what the law prohibits or requires. I did want to float one other possible theory, though, and this is getting ahead a little bit, but I think they took the speech issue, or at least they might have taken the speech issue, because this case was basically specifically engineered to raise it, and it allows them to continue taking bites out of Smith and to continue limiting the reach of civil rights laws without actually having to utter the words, we overrule employment division versus Smith across the board. And again, Smith had said people have to comply with generally applicable laws, laws that apply to everyone, whether they have religious objections or not. And in some related

speech cases, the court had said, look, the premise of anti-discrimination law is marketplace transactions regulated by anti-discrimination law, employing someone or providing services to customers or commercial conduct, not First Amendment speech. And that's in part because American social life is filled with events that can legitimately be characterized as expressive, you know, celebrations with friends that require food or space, making items that will be used in various celebrations or events. You know, I could go on. So saying that anti-discrimination law can't be applied to, you know, a newly invented category of purely expressive activity or pure speech would again take a bite out of anti-discrimination laws and limit Smith, you know, without the court having

to say, and we just formally overrule Smith across the board was another kind of theory that I had. I think that's a very plausible theory, too. Yeah, I think maybe the confluence of all of these things. Curious and curiouser, though, I'm never a dull moment with the YOLO court. Anyway, whatever the reasons, the cert grant focuses on a single issue, whether a public accommodation law violates the free speech clause when it requires a business to offer to customers its goods and services, all customers, including customers who have certain protected characteristics, and that this extends even in circumstances where the business provides customized goods and services that are very highly specialized and perhaps even idiosyncratic.

There may be some other issues that get attention, particularly from certain wings of the court. So if other oral arguments, including the affirmative action oral argument, are any indication, the three liberal justices are likely to press the advocates on the question of jurisdiction. And the state raised this in their briefs at the cert petition stage. It wasn't a question presented by the petitioner for cert, but the state did raise it. And specifically, the state of Colorado argued that Smith, who had not yet entered the market and had not yet accumulated customers and had not had the law enforced against her, lacked an injury sufficient to confer standing. Now, the court did nothing with this jurisdictional question when it granted cert on the speech question.

But I could imagine that the three liberals who have in past arguments shown an appetite for the whole why the F are we here question would be willing to take this up again and to press the advocates on what exactly is the litigants injury if she hasn't actually entered the market. Totally. And it does seem to me as though this kind of complete willingness to just bulldoze right past these threshold jurisdictional questions on the part of the conservative supermajority is emerging as a major theme of this term already. I mean, think about Rebecca Nagel's really excellent points in our discussion of Brakeen, the ICWA case about how these plaintiffs really shouldn't be before the court at all. Think about the very shaky standing that Michelle Adams highlighted with respect to the plaintiffs in the UNC and Harvard cases. Think last term to West Virginia versus EPA, the lack of either standing or injury, mootness, however you want to characterize it. There were huge jurisdictional flaws in that case. And I think that probably the court is going to go ahead and just get to the merits because it wants a particular result in all these cases. But I do hope that the liberals on the court make the conservatives squirm a little bit in pressing this question of, as you phrased it, Melissa, why the fuck are we here?

One thing I will say, apparently she has now set up a website and she has some clients. But I think the question the state had is when this was initially filed, she hadn't done any of this. And so this is sort of an open question. I guess she's saying she can't place the banner she wants to on her website, but she has not, you know, at the time that this suit was initiated, she had not provided any website services to any individual and she had not been asked to provide website services to a same-sex couple wishing to announce via her website using her web design services their marriage. So it seems to me those are not resolved. Okay, but back to the kind of merits question. So because the court did not grant cert on the religious

freedom claim, exactly as Leah was just describing, the court doesn't have to consider squarely whether it should overrule Employment Division v. Smith, which, just as a reminder, is the 1990 case in which a majority of the court in a decision authored by noted liberal squish Antonin Scalia held that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. So according to the majority, because the law was a neutral one of general applicability, not a law that specifically targeted religion or religious exercise, its application against the Native Americans who sought to use peyote in religious rituals was fine.

Now, again, Smith was a Scalia opinion in which all of the court's Republican nominees joined. Yet, despite this sterling conservative provenance, in recent years, Smith has come under fire from conservatives who argue that it subordinates religious interests and makes it harder to grant religious accommodations to neutral and generally applicable laws, like the state anti-discrimination law at issue here in 303 Creative. Now, Smith narrowly avoided being explicitly overruled in City of Philadelphia v. Fulton two terms ago. And it's not a formal question that the court is required to decide in 303 Creative. But it is worth remembering that overruling Roe and Casey were not, at least initially, formally on the court's docket in Dobbs.

So, you know, anything could change here. And I imagine we will get some questions from the conservative wing of the court about why Smith applies, whether Smith should apply, and whether Smith should be a viable precedent moving forward. So obviously 303 Creative will have an enormous impact on LGBTQ plus civil rights. Many commentators, including us, have focused on Justice Thomas's concurrence in Dobbs and what that portends for same-sex marriage. But this case is actually a more immediate threat, right? If the court reaches the merits here, I think it's almost certain that it will decide in favor of Lori Smith, offering broader grounds for exemptions from civil rights laws and public accommodations laws, and that will have enormous effects on the lives of same-sex couples who will have to grapple with

the prospect of receiving different treatment in certain aspects of their public and commercial lives than different-sex couples or than the law permitted prior to, I think, what our prediction for this opinion looks like. So that is just a huge change. And a decision that would prioritize religious exercise or speech, if you will, over anti-discrimination norms would surely have broader repercussions for civil rights more generally, which is why a number of civil rights groups, not just LGBTQ civil rights groups, have filed amicus briefs in this case. amici are the Lawyers Committee for Civil Rights, the NAACP Legal Defense Fund, the National Women's Law Center, the ACLU, a bunch of law professors as well, including a group of First Amendment scholars, including Yale Law School's Robert Post and Berkeley Law's Erwin Chemerinsky, as well as Penn Law Professor Tobias Barrington Wolfe, who has also filed a brief on his own, all of which are in support of the state. On the other side, there is a group of law professors,

which include Helen Alvare of Antonin Scalia Law School and Michael McConnell, Stanford Law School, and Richard Epstein, my colleague at NYU, who are filing in support of the petitioner, Lori Smith. I was glad, Kate, that you linked this to kind of the broader attack on LGBTQ civil rights, because I think, you know, some people have wrongfully fixated on whether the court is going to overrule decisions like Bostock versus Clayton County, which said that Title VII prohibited discrimination on the basis of sexual orientation or, you know, overruling Obergefell versus Hodges. But there are so many different ways in which the court can curb LGBTQ rights. And the likelihood of that happening is part of what I think commentators like us were trying to identify in Justice Thomas's concurrence, you know, in Dobbs, as well as prior writings by

several of the justices that have indicated real hostility to LGBTQ civil rights, as well as, you know, solicitousness for ways of limiting them. And if I could here just make a quick plug for a forthcoming article I have in the Michigan Law Review, disparate discrimination, in which I compare and contrast how the court treats claims of religious discrimination under the First Amendment with how it treats claims of racial discrimination under the Equal Protection Clause. You know, I kind of argue the court has become increasingly solicitous of claims of expansive interpretations of the First Amendment, but seemingly on the ground that it or, you know, some number of the justices think conservative Christian groups are a persecuted minority who lack power and face societal prejudice and discrimination.

And one reason why the court thinks those groups face prejudice and discrimination is because their views no longer command majority support, which is partially exemplified by recent protections against discrimination for the LGBTQ community. And so the court then turns around and says, well, these groups have fallen out of fever or have lost majority support because their practices are regarded as forms of discrimination. And therefore, we, Supreme Court, will protect those groups and in the process limit and really cannibalize anti-discrimination protections for the LGBTQ community. And this decision feels of a piece with this trend whereby the First Amendment just continues to like steadily devour egalitarian advances in anti-discrimination law and civil rights.

I mean, it's almost like Justice Scalia laid the seeds for this in his dissent in Romer, where he talks about the political power of LGBTQ groups, and then also the embattled religious observers who are forced to sort of comply with these new mandates for anti-discrimination. I mean, this is really interesting. I do want to read this. Can you send it to me? Yeah, yeah, yeah. No, I can. It cites your animus piece in the Supreme Court Review. Yeah, liberally. Which no one ever reads because no one can ever get that journal. It's like – Well, I read it and I have lots of quotes from it in the footnotes. Thank you. But the other opinion that I think really highlights this trend where it was kind of laying the seeds for this idea is Justice Alito's dissent in Obergefell.

Yes. Where he basically said like this decision exactly is going to label people opposed to same-sex marriage as bigots. And that was the basis that he kind of planted for potentially overruling or limiting the decision or LGBTQ rights more broadly in the future. Scalito! Oh, God. Okay, so Moore v. Harper, the next case we're going to preview, is a huge and incredibly important law of democracy or, you know, wither a democracy case that the court will hear also during the second week of the December sitting. Moore v. Harper implicates the so-called independent state legislature theory, or as Leah would say, thing, independent state legislature thing, or as Melissa calls it, fanfic. I think those are both great. So pick your title. In this

case, the North Carolina legislature is asking a majority of the court to embrace that theory, thing, fanfic for the first time. Generally speaking, the theory maintains that the election clause of Article I, Section 4, confers exclusive authority on state legislatures and no other organ of state government to set the rules for federal elections. So the text of that elections clause is, quote, the times, places, and manners of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, but the Congress may at any time by law make or alter such regulations except as to the places of choosing senators, end quote. So this case is specifically about congressional elections and whether that elections clause requires the state legislature and state legislature alone to set the rules for those elections.

And it asks whether state courts may enforce their state constitutions in cases regarding the conduct of federal congressional elections. In this case, the North Carolina Supreme Court invalidated a map that had been drawn by the state legislature. And the court invalidated that map on the ground that the map was an extreme partisan gerrymander that violated the state constitutional guarantees of free and fair elections. Sort of quick sidebar, this is like just complete like legal realism note, but I just wanted to flag something, which is that during the midterms, the North Carolina Supreme Court actually flipped so that it is now under GOP control. It had been controlled by Democratic justices. It now has a majority of GOP justices.

And I think a couple of things. One, this could or maybe clearly will have consequences for whether that court invalidates another GOP gerrymander in the future. There has also been a little chatter over whether this might somehow moot Moore versus Harper, the flipping of the North Carolina Supreme Court, that I don't see. But I do think the midterms, you know, the results in North Carolina and in a number of other battleground states actually could impact the appetite of the conservative justices here, since in a number of battleground states, you had these, you previously had GOP legislatures and democratically controlled courts. But the midterms have changed the equation, right?

They have given the Democrats control of the legislatures in Michigan and in Minnesota. Pennsylvania is, at the time that we're recording, still counting ballots, but has a good chance of flipping, at least in part, potentially totally to Democratic control. So I actually can see these legislative shifts somewhat muting the justices' enthusiasm for handing this unfettered control to state legislatures, which had previously been under Republican control. The picture looks different now. So again, really legal realist note, but I actually think it might impact how the justices understand the kind of ideological valence of this case. That might be possible, but two reasons lead me to think it might not mute them that much. One is just if you're thinking about which organ of the state, you know, Republicans

have a greater shot at controlling. It seems like state legislatures relative to state courts are that organ. So the question is, right, who do you empower? And you think Republicans are more likely to control state legislatures than state courts, then that's it. And just one piece of evidence for that is, for example, Michigan, you know, Michigan, the legislature flipped kind of by a bare majority of votes. So over 50% of people voted for Michigan state senators or Michigan state representatives, whereas the governor and the attorney general and the secretary of state won by huge margins statewide.

So that's one thing. And then second is, I feel like if you just ask from a real politic perspective, like which party is going to engage in more extreme gerrymanders, it's going to be Republican. So even if the court gives, you know, this unfettered control over elections to legislatures, and some of those legislatures are controlled by Democrats, I just don't think based on past practice, it seems as though Democrats are going to engage in the kind of gerrymandering that will be as disadvantageous to Republicans as the kind of gerrymandering that Republicans engage in. So I think that's totally true. And actually, when it comes to restrictive voting laws, right, because if legislators have this authority, it's not just over district drawing, but also the regulation of elections writ large. And of course, it's also true that

Republican legislators have been incredibly aggressive in curtailing access to the ballot in all kinds of ways. So I think you're right, if the justices take the long view, those trends and dynamics certainly would tilt in favor of their empowering legislatures. But I do wonder if this election being fresh in their mind might have some bearing on it. For sure. Okay. So again, the question here in this case is whether it violates the federal constitution for a state court to interpret and enforce their state constitution and specifically to do so to protect voting rights and make elections more democratic and representative. Just to briefly recap some of what makes this independent state legislature thingamajig so outlandish.

First, it rests on the thinnest of textual reads. Like this entire house of cards hangs on the word legislature in the elections clause. Yet the framers understood that the state legislature would be a product of state constitutions and understood that the state legislature was not the only body authorized to interpret state constitutions. And yet it just fixates on this word, divorces it from context, divorces it from the historical period in which it was used, divorces it from like the political thinking of the time, so on and so forth. Second, this theory is utterly inconsistent with foundational principles of constitutional law and federalism. You know, the framers were skeptical of state legislatures. They wouldn't have given them this huge power to literally decide how federal elections are run to the exclusion of all

other state offices. And yet this is what this theory maintains. Okay, so another reason that we think this theory is so misguided. So states are supposed to have considerable autonomy in terms of how they structure their governmental systems. But what this theory would do would be to commandeer states to essentially configure their internal affairs in a particular way, namely to have a legislature that is divorced from and unconstrained by a state constitution that's enforced by state courts. And I should highlight that Leah and I talk quite a bit about this particular deficiency in the theory in a symposium essay that will be out in the

Wisconsin Law Review. But it just feels to me like a fatal flaw with the entire theory on which this case rests. Another reason why the independent state legislature thingamajig theory fanfic is also kind of baseless is that there really is zero evidence that people understood the Constitution to prohibit other state offices from setting rules regarding federal elections. So, you know, the framers understood that state legislatures were creatures of state constitutions. Legislatures are not some sort of pre-constitutional entity that just exists and precedes the formation of the state. They actually come into being through these charters. Their power comes from the people in these state constitutions. And the people made the state

legislatures limited by the terms of those state constitutions. So the contrary theory, this independent state legislature fan fiction, really challenges the whole understanding of state legislatures as being bound and tethered by state constitutions, which state courts are charged with and authorized to interpret. And on this specific point about the constitutional understanding at the time of ratification, Mark Kress's paper, which is titled Debunking the Non-Delegation Doctrine for State Regulation of Federal Elections, a paper that's forthcoming in the Virginia Law Review, that paper shows how at the time of the founding, state offices other than the state legislature made rules regarding federal elections. And the punchline is basically, originalism, bitches,

right? Like, watch us do it and, you know, see if you care. Don't sweat the technique. Anyway, there has also been a consistent historical practice that other state offices and officers can set the rules regarding federal elections, which the independent state legislature theory slash fanfic slash thingamajig doesn't actually acknowledge or appreciate in full. And so that's another reason why it's kind of a drag and sort of stupid. But embracing the independent state legislature theory slash thingamajig and turning this fan fiction into reality has some real practical consequences, like basically generating chaos in the entire electoral system. So just imagine the Supreme Court as Loki, like your general chaos agent.

So under this theory, every dispute regarding the conduct of federal elections at the state level, so the location of polling places, voting requirements, all of this would effectively become federal constitutional issues, which means there will be a raft of new litigation in the federal courts and perhaps even percolating all the way up to the Supreme Court. And more problematically, it could actually lead to two different sets of rules regarding the conduct of state elections versus the conduct of federal elections, because state courts could still enforce their state constitutions with election to have different sets of rules that they must follow for state races on the one hand and federal races on the other. What could go wrong? What could go wrong?

It's almost like they want to sow chaos. Exactly. What if instead of a democracy we just had chaos? Exactly. What if instead of a democracy, we just had chaos? Exactly. Chaos that allowed state legislatures to just throw the results of an election to whoever they want. What if? Wait a minute. You're on to something. Yes. So, all right. So that's the general theory and its many shortcomings. But it's honestly even worse than that because this particular case turns out to be a horrible vehicle for the theory. In this case, the North Carolina legislature actually authorized state courts to draw maps.

So the North Carolina Supreme Court was not actually acting independently at all. It was acting pursuant to specific instructions from the legislature, which is the body that this theory says has to basically run the show when it comes to federal elections. So it kind of actually was here. So the North Carolina legislature authorized state courts to hear challenges to maps. And so all of this here, the state court enforcing the state constitution in this redistricting case, is actually authorized by the legislature. So the fact that the Supreme Court could still be primed to say that the state legislature can't do this, I think completely exposes how this theory doesn't even elevate state legislatures as it purports to do. It constrains them and it constrains the states

more generally. It literally is the opposite of what it claims or pretends to be. So there are different versions of the theory that could be adapted in this case. One version is a maximalist take that legislature means legislature. So state courts and state constitutions just have no role to play, but maybe not in cases involving vague or general state constitutional provisions. The state constitutional provision in this case was a guarantee of free and fair elections. Melissa, were you shaking your head? Well, I was like, how is that even going to be determined? Like what constitution? You can't. You can't, right? Like this is an utterly unadministrable line to draw. Like, when is a state constitution? Sam Alito can divine a principled line. Right, yeah. And the principled line is, right, any time a state constitutional permission expands voting rights, it is too vague and general, right? But when it restricts voting rights, then it's specific. Okay, I got it.

That sounds principled. Galaxy brain here. It's like the major questions doctrine. Yes, it would be. And, you know, this theory would involve the federal courts having to hear a ton of cases, you know, sifting through different provisions in the 50 different state constitutions asking which ones are specifically enforceable and which ones aren't. And we don't usually think about the federal constitution and federal courts as having a role in sifting through state constitutional provisions and asking, like, do you get to enforce this one because it's specific

enough or not that one because it's too general? It's just ridiculous. Federalism. Yeah. Right. Exactly. Federalism, bitches. It's like that butterfly meme, is this federalism? Yeah. Okay. So maybe because this entire theory is just a big FU to state courts and state constitutionalism, it generated a few briefs that I think are worth highlighting. But maybe first, a pretty unusual amicus brief by the Conference of Chief Justices, in which those chief justices actually don't formally take a position in the case. It's a brief in support of neither party. But they are telling the court, look, you can't and shouldn't say that state courts don't get

to enforce state constitutions, even vague state constitutional provisions in cases regarding the conduct of federal elections. So this is pretty extraordinary. All 50 chief justices, right, all 50 state high courts signed onto that proposition. And the attorneys on the brief were Carter Phillips and Virginia Seitz of Sidley Austin, who were also the team that filed the really important amicus brief in Grutter v. Bollinger on behalf of retired military officials that really did make a difference in that case. And also on this brief was Leah's colleague, Evan Kamaker, at the University of Michigan. It's so interesting. Like this has no formal position, but it seems to have a formal position. Yeah. Just they have to catch me.

The formal position is not, the implicit position is, are you fucking kidding me? Yes. It's just kind of giving Federalist Society like completely nonpartisan, non-ideological.

A little bit. But here, look, I think they want to stay above the fray and say we are not taking a position about who should win. But the theory here is bananas. And that does mean that, you know, this North Carolina legislature should lose. They just like leave that last piece. We don't care who wins or loses in this case. But the idea that we have nothing to say about the constitution of our own state is like bananas. And like, stay in your lane, we'll stay in our lane.

Yeah, completely. A couple of other great amicus briefs to highlight. One, a brief opposed to the ISLT. I don't think this one claims to be in support of neither party was filed by Arnold Schwarzenegger. He has a standing invitation to come on the pod.

Go do it again and say it the right way. Arnold Schwarzenegger. Do it the right way. The Terminator. I don't know how Do it the right way. The Terminator? I don't know. What's the right way? Arnold. So go ahead, Melissa.

You intro this brief. There are also some other fantastic amicus briefs. And as a Californian, I feel obliged to mention one brief that is opposed to the independent state legislature theory filed by none other than the governor, Arnold Schwarzenegger. Is that good? I mean, the question, we'll give him whatever title he wants if he comes on the podcast to discuss his brief. I don't know if he still likes the governor.

He definitely was. He was. Well, I mean, not only was he the governor, when people graduated from the University of California from any of the campuses during his governorship, not only were their diplomas signed by the dean of their school and the chancellor of their campus, but also by Arnold Schwarzenegger, which is like chef's kiss. Love it. Amazing. Yeah.

Great. He's great on a lot of issues now, including things like redistricting, which has been a huge passion project of his. And I imagine why he got involved in this case. OK, so that brief is worth checking out. There are also a bunch of briefs by like genuine GOP luminaries like Ben Ginsberg, longtime sort of leading GOP election lawyer who is opposed to the ISLT. Mike Ludig, Steve Calabresi, who, as we mentioned, filed a brief along with Akhil and Vikram Amar opposed to the ISLT. That's what I think got him blacklisted from at least publicly identifying himself with the Federalist Society. There's also a great brief by our friends at the State Democracy Research Initiative at the University of Wisconsin-Madison.

That's Miriam Seifter and Rob Yablon, who filed a really excellent brief on behalf of state constitutional law scholars. There's a brief that Carolyn Shapiro and Nick Stephanopoulos and others. Basically, every person with standards, every respectable academic was like, wow, this looks like bullshit to me. That's a good summation. So in another dynamic that feels emblematic of things we have seen before in the conservative legal movement, you know, amidst, as I was saying, basically, every academic who has looked closely at these issues saying, gosh, this ISL fanfic doesn't seem totally on the up and up to me. We had some, you know, conservative Republican legal academics put forward what they presented as a something of a middle ground position that they

thought was like a reasonable approach to the independent state legislature thingamajig. So this idea was written up in the Atlantic, and they called it the constitutional state legislature theory rather than the independent state legislature theory. And, you know, not totally clear to me, but I take it that under their theory, state legislatures still have to be the ones to do certain things regarding federal elections, including drawing maps. But watching this happen was like watching in real time an example of how the laundering of bad ideas to make them more respectable happens. any specific or serious evidence that this idea that state courts can't draw maps if they haven't validated the legislatures is reflected in the constitutional history or practice. It just kind of says, well, hey, the Constitution says legislature, so got to mean something. Here's

an idea. And it seems emblematic of this really, I think, horrible, toxic idea that is an important problem within academia, which is this idea that it's a serious take on an issue if you look at both sides and say the reasonable position is in the middle. But if the position on one side is utterly lawless and baseless, then you are effectively adopting a version of an argument that doesn't make your position reasonable. And again, this article just completely overlooks and does not even engage with the fact that the legislature, the North Carolina legislature here, authorized courts to review maps. But, you know, I guess we're just free balling it here with our democracy. No democracy, just vibes.

Whatever the court does here, Moore versus Harper is obviously hugely important. But there are limitations on what the court will decide in this case. So as we said, this case involves the conduct of congressional elections. So it doesn't involve state legislatures' power to appoint presidential electors, which is where the coup-adjacent version of this theory has received the most attention. And the coup-adjacent version, of course, is a theory promoted by our favorite cocktail aficionado, one Ginny Thomas. That theory maintains that state legislatures could just throw out the votes and decide to award all of the presidential electors allocated to a state to whomever they wanted. Cuckoo Cachoo.

That theory. But Cuckoo Cachoo is not directly presented in this case for two reasons. So one is that formally, the presidential electors clause, which also contains the word legislature and, you know, is advanced on the same theory as the theory underlying Moore, but that clause of Article 2 is not directly implicated in this case. That being said, it is likely that the two clauses, the elections clause on the one hand regarding congressional elections and the electors clause on the other hand, which has to do with presidential electors, travel together because of that word legislature that appears in both. So it's pretty clear to me that anything that happens in this case will undoubtedly have ripple effects for questions surrounding the selection of presidential electors. But this case also doesn't concern a scenario where the legislature is trying to throw out

votes that have already been cast and undo the voting that was done under previous rules that were set by the legislature. As we discussed in our summer episode, that too would be a different case. But of course, it is possible that whatever the court does in this case could embolden a state legislature to try something funny in a future case. So those are the two big blockbuster cases, one that could potentially undermine broader rights for LGBTQ persons, one that could undermine the prospect of democracy going forward. And now we're going to pivot and look to the other cases on the docket. And all

of these are sort of broadly clustered under a single idea, making fraud great again. So let's talk about what else is on the docket for the December sitting. Kate, you want to get us started? Okay. So those cases Melissa just alluded to are a pair of cases that may be part of a trend of the court narrowing the federal criminal prohibitions against fraud, that is making cases of fraud harder to prosecute and specifically making it harder to target political corruption as a species of fraud. So maybe let's recap some of the history of the federal fraud statutes and their relationship to corruption. If some of these

cases sound familiar, it's maybe because of some of the similarities to the New York Times story about the coordinated campaign by conservative activists to use money and connections to influence, access, and lobby the court. First up in the Mofaga, Make Fraud Great Again, quartet is McNally versus the United States, which was decided in 1987. There, the court interpreted the federal fraud statutes, amended the statutes to prohibit schemes that deprive individuals of quote-unquote honest services. But why let Congress, the people's representatives, get in the way of a good time when you're making fraud great again? The court narrowly interpreted those newly enacted provisions as well. So Leah,

what is the next step in this trajectory toward making fraud great again? So there was Skilling v. United States, a 2010 decision that said the statute prohibited only those schemes involving bribes or kickbacks and not, say, undisclosed self-dealing. Then subsequently, the courts decided McDonnell versus United States in 2016. That decision narrowly interpreted another statute, the federal bribery statute, that makes it a crime for a public official to receive or accept anything of value in exchange for being influenced in the performance of an official act. In that case, the court held that former Virginia Governor Bob McDonnell's setting up a meeting, talking to another official, and organizing an event did not constitute an official act for

purposes of the bribery statute. That is, even if he received things of value for organizing meetings or for organizing events or for talking to other officials, that wasn't actually prohibited by the bribery statute. Finally in this this sequence is Kelly versus United States, a 2020 case that we actually talked about a lot in the early days of strict scrutiny. That was the case that held that AIDS 2 former New Jersey governor, Chris Christie, couldn't be prosecuted under several federal statutes

for participating in Bridgegate, right? For folks who don't remember it, this was the alteration of traffic patterns from Fort Lee, New Jersey onto the GW Bridge in order to punish the mayor of Fort Lee for refusing to endorse Christie's bid for reelection. So New Jersey. So New Jersey. It was. GTL and fuck shit up on the George Washington Bridge. Yeah. If New Jersey were a Supreme Court opinion, this would be that opinion.

So in that case, the court adopted this very narrow definition of what constitutes property under the federal statutes at issue. And the realignment of the traffic lanes, even if done, even if dangerous, even if ill-advised, even if done for crass political reasons, did not constitute the taking of property under the relevant statutes. So, you know, the court expressed this concern that the government's argument would allow the federal government to use the criminal law to enforce its view of integrity in broad swaths of state and local policymaking. Imagine that. Right. So all these cases, you know, taken together make it much harder to prosecute cases of political corruption or self-dealing. And the two cases that the court is poised to hear this sitting could very well

continue that trend. So first up on the docket is Simonelli versus the United States, which is about the right to control theory of fraud under the federal wire fraud statute. The wire fraud statute prohibits fraudulent schemes for obtaining money or property. Under the right to control theory, depriving someone of complete and accurate information that bears on a person's economic decision can be a kind of fraud. This particular case involves a non-profit corporation that had authority under state law to award contracts for development projects. One of the board members intentionally drafted selection criteria to favor the petitioner, Louis Simonelli's company. The board awarded the company a $750 million project, and Simonelli was subsequently charged with wire fraud for his role in allegedly

rigging the bidding process so that it worked in his favor. So the Court of Appeals said this can be a kind of wire fraud because, as Melissa noted, the right to control assets is a protected property interest, and a defendant can deprive a victim of that property interest if they deprive the victim of potentially valuable economic information that affects a victim's decision about how to use their assets. The petitioner, by contrast, argues that information isn't a kind of property interest that's protected by the statute and that a victim still has control over their property or assets even if they are given faulty information that leads them to decide how to control or dispose of their property. Okay, so the second case in the pair is Percoco v. United States, another case that seeks to limit the extent to which the federal

fraud statutes prohibit political corruption. The specific question here is whether private individuals who, at the moment that they commit an allegedly fraudulent act, do not hold an elected office or government employment, can still be convicted of honest services fraud when they control some aspect of government business. And Percoco has a little bit of Bridgegate flavor to it, at least in its facts. So Joseph Percoco is – Just on the other side of the bridge. Yes, just cross the bridge and you're going to get into Percoco territory. Exactly. And Percoco involves Joseph Percoco, who is a former aide to disgraced former New York governor Andrew Cuomo.

He left the role of aide to Governor Cuomo, however, to serve as Cuomo's re-election campaign manager. And while working on the re-election campaign, he received $35,000 from a developer to pressure a state agency to award funding to the development that the developer was advancing. When he ultimately made the call to the agency, Prococo had access to his old government office and told people he intended to return to government service, but he actually wasn't at the time formally an aid to the governor. He was his re-election campaign manager. So this is not a government position. This just seems like a gigantic potential loophole to the political corruption fraud statutes. Let's call this the Steve Bannon rule. Right. Exactly. Exactly. The raise the money for the wall while not technically in government.

I mean, or honestly, like even the like Trump children kind of loophole, right? Because it's not always clear like what formal government office all of them had and when. And yet under this theory, they could be basically soliciting grift from whoever they wanted and promising access to a government official, you know, their sibling, their father, whoever, without running afoul of these fraud statutes. Anyways, the Court of Appeals said this just cannot be the case. They said private individuals who aren't government officials or employees can be convicted of honest services fraud, you know, or other types of fraud when they're relied on by the government and control some aspect of government business. Percoco, of note, is represented by the law firm Jones Day.

Jones Day had previously represented Virginia Governor McDonnell and has been on a, how shall we say this, the forefront of ensuring that public corruption remains legal. These cases, you line up all of them and the trend, and it's really stunning. And I think it's just part of the Roberts Court view of politics as unseemly and dirty. And their view is in some ways like making it so, that is they are making it possible

for officials to engage in this kind of corruption, right, that delegitimizes our politics and undermines people's faith in the system. And it's just so cynical and bad and yucky. I totally agree with that, Leah. And the cases actually don't cite Citizens United and the other campaign finance cases. But the deep logic and the sort of view of politics that I think underlies them is the same. And I think the kind of self-fulfilling quality of their understanding of how politics sort of are kind of inherently this, you know, characterized by quid pro quo exchanges and self-dealing like kind of links those cases, even though they are

ostensibly in different kind of doctrinal silos. So Kate is being very modest here, but she has this terrific paper called Partisanship Creep, where she canvases all of these disparate cases, including these fraud cases, as well as the campaign finance cases, and sort of notes that there is a turning away from this principle of non-partisanship in government service and instead a kind of embrace of the inevitable introduction of partisanship into ordinary politics that Kate argues has been quite nicely facilitated by the Supreme Court in these sets of cases that aren't necessarily all on the same point, but if taken together, kind of evince this broader interest in making it safe to be completely political and partisan again. And that's if you're not even sort of

considering cases like Rucho, partisan gerrymandering, and then the unitary executive cases. We're talking about federal government employment. Anyway, like it actually gets, I think, pretty alarming when you consider these things if you line them up together. But Melissa, thank you for the plug. I appreciate it. No worries. I heard that Texas is back on the docket. Always. God, how many terms have been? It's been two, three, four Texas cases, but this one is no different. So next up is United States versus Texas. This particular US v. Texas, there are a lot, so it's easy to get confused. But this one, we'll consider whether

President Biden's announced immigration enforcement priorities are lawful. So the guidelines identify three groups of non-citizens as priorities for apprehension or removal. One, those who pose a danger to national security. So for example, suspected terrorists. Two, those who pose a threat to public safety, typically because of serious criminal conduct. And three, those who pose a threat to public safety, typically because of serious criminal conduct. And three, those who pose a threat to border security, i.e. non-citizens who arrived in the United States after November 1st, 2020. The guidelines also provide a framework for determining whether a non-citizen threatens public safety, and they include a list of aggregating factors weighing in favor of enforcement action. And those factors include the gravity of the offense and the use of a firearm. The list also includes mitigating factors, such as things like youth and military service. And the guidelines, again, are only about removal slash apprehension. But in addition to the lawfulness of the guidance, the case involves two incredibly

important procedural questions that could determine the future of immigration litigation, and specifically litigation against federal government immigration policies. And those procedural issues may end up eclipsing the importance of the substantive question here about the legality of the Biden administration's enforcement guidance memo. So the first procedural issue is that old chestnut standing. Standing, as the majority here will recall, or maybe they won't, is the doctrine that requires a plaintiff to show that they've been injured by the policy that is being challenged. And this is yet another case against a Democratic administration brought by Texas, where Texas is essentially arguing that the mere fact of the policy is the injury. So Texas is essentially arguing that it is injured by the fact of the enforcement guidance memo itself. So paper cuts as jurisdiction discuss. So the specific theory for how they're actually injured by the guidance is the theory adopted by

the district court, which is the guidelines, this guidance memo injures Texas because the guidelines increase the number of non-citizens in Texas, you know, leading the state to spend more money on things. The court also found that the guidelines harm Texas's peris patriae interest, essentially the interest that allows Texas to protect its citizens because the guidelines make it more difficult to protect their citizens from criminal activity. I just, I would like to note that the theory of standing and the theory of injury here is reminding me very strongly of the micro slash macro aggressions from the ICWA argument

during which the justices were basically reenacting the anti-native biases that ICWA was designed to address and to prevent judges from acting on to the detriment of Native communities. Well, I mean, just like on a more basic level, all of this seems entirely speculative. Well, yes. Of course, it is like utterly speculative. You know, on some level, you're not required to prove your case at standing. On the other hand, there's got to be some air of possibility, right, that the challenge policy is actually contributing to these harms. And the idea, again, that the removal policy

is what's doing this rather than say, like the discretion exercised by line immigration officers over whether to arrest someone or whatnot is just a little bit wild. You know, there is a circuit split on this issue. The Court of Appeals for the Sixth Circuit said states didn't have standing to challenge this guidance memo in part because it doesn't regulate the states. It doesn't tell them, command them to do anything or not. It doesn't prevent them from enacting any kinds of laws. It just imposes some indirect costs on them. But basically, all laws or regulations will impose some indirect costs on the states. And so it's just a really wild theory of standing. This case basically has the potential to limit states' ability to challenge the policy of

administrations with which they disagree. And that may be an issue that some members of this court will take issue with. So I think there'll be a lot to see there. It's not quite the blockbuster that 303 Creative or any of these other cases brought. But again, I think it'll be a really significant oral argument. The second procedural issue, though, that we should highlight here is, again, about something that is probably much bigger than just this case. And that question is whether you can get injunctions against immigration enforcement policies. And so a provision of the INA 8 U.S.C. 1252 F1 provides

that lower courts lack jurisdictions to enjoin or restrain the operation of statutes governing removal, including sections 1226 and 1231. And one question here in United States v. Texas is how this relates to an Administrative Procedures Act provision that allows courts to set aside unlawful agency actions. The federal government says that the APA provision means courts don't have to give effect to agency actions, but it doesn't allow them to vacate or undo them or enjoin them. And as they argue, even if it does allow for vacature for other agency actions, the INA doesn't allow that remedy here because the case challenges how an administration is implementing provisions of federal immigration law. So this case really

has the potential to transform the extent to which states are able to challenge immigration policies of the federal government. But just stepping back, I wanted to highlight an amicus brief by actual friend of the pod, Commander Professor Steve Vladek. The brief argues that Texas has brought this action as part of an intentional strategy of shopping for its preferred judges to enjoin federal action nationwide and that the court should consider that strategy in deciding whether equitable relief and effective injunction is warranted here. And the commander, as he is wont to do, brought the receipts. So the brief notes that Texas has filed at least 28 lawsuits against the Biden administration, including 20 cases in Texas district courts. But of those 20 lawsuits, judges appointed during Republican presidencies are

presiding in all but one. And that is because Texas has intentionally filed cases in a manner designed to foreclose having to appear before democratically appointed judges, including not filing a single case where the Texas state government is actually located. So Texas has filed just five of the 20 cases in courthouses with more than two judges. Wow. So that's mostly about procedure, right, before even reaching the merits. But on the merits, like we should say that presidents get to have enforcement priorities, especially in immigration. We want leadership in federal agencies and up to and including potentially the White House, but here we're just talking about in agencies, to give guidance to

the field so that immigration, like field agents agents are not acting completely on their own discretion to decide against whom to prioritize enforcement of the immigration laws. And that's kind of all this is, like setting forth clear priorities. But I guess this case raises the question, you know, what about Democratic presidents? Do they get to have enforcement priorities too? You know, do Democratic presidents get to set immigration policy or just Republican presidents and Republican appointed judges? Well, I guess we'll see. Melissa has some predictions. I was just channeling the conservative supermajority. There are a lot of other cases on the docket for this sitting, and we're not going to be able to go into all of them in detail. There's one case, Wilkins v. United States, about whether the 12-year statute of limitations to

bring a lawsuit under the Federal Quiet Title Act is jurisdictional and cannot be waived, or whether it's just a claims processing rule that can be waived. So that's going to be an interesting one for jurisdictional questions around that particular statute. There are also two bankruptcy cases, Moac Mall Holdings versus Transform Holdco and Barton Warfer versus Buckley. So we'll highlight those later in the recaps. And then finally, there's another kind of fraud question. We probably could have lumped this in

with our two other major fraud cases, but it seems a little more ancillary. But U.S. XREL Polanski versus executive health resources involves whether when an individual brings a lawsuit on behalf of the federal government alleging fraud on the United States, the government has the power to dismiss the lawsuit after initially declining to take over the case. So again, question about private enforcement of these kinds of statutes. So we will cover those in more detail on the recap. So if you're burning for bankruptcy, just stay tuned for a couple weeks. Yeah, we're sorry to quiet

title and bankruptcy stans that were over time, but we will come back to these cases if we're able to. But let's turn now to some news and additional developments. Okay, so first piece of news we wanted to highlight. Wait, wait, can we talk about Tiffany? Will we be able to talk about Tiffany Trump's wedding and how she got something old, her dad, something new, her wedding dress, something borrowed, a whole family and something blue, the Senate? I love that this is not in the show. No, but this is going to be a yes if you need. Okay. All right. Maybe that's all. That's all we need to say. How about that's our discussion? Okay. So before we go, let's just hit a couple of other kind of pieces of breaking news and court culture. And the first is a brief update in our kind of recurring 2020 election, as obviously attempts to overturn the results of that election were underway.

And one of Trump's lawyers wrote in this email, we want to frame things so that Thomas could be the one to issue some sort of stay or other circuit justice opinion saying Georgia is in legitimate doubt. And the email also argued that Thomas would be our only chance to get a favorable opinion by January 6th, which might hold up the Georgia count in Congress. Wow. That is Sam Alito erasure. To be clear, I think that because Thomas is the circuit justice for the 11th Circuit in which Georgia sits, that was the reason that they were pegging their hopes to Thomas alone. I think otherwise they would have been very happy to peg their hopes to Alito.

Well, I mean, again, no one is saying that he's in cahoots with them. But I do think it is notable here that there is a high predictive element here that if someone's going to be on board with them, it's likely to be him and they're happy to send their petitions his way. Another thing I do think that we need to highlight is the latest destruction to follow from the latest destruction to follow from the Supreme Court's decision last term in NYSERPA versus Bruin, the case that really embiggened the scope of the Second Amendment. So here, in this case, a Trump-appointed judge in the Western District of Texas, Judge David Counts, invalidated the provision of federal law that

makes it unlawful for someone subject to a domestic violence restraining order to possess a firearm. So like a good originalist following Bruin would do, judge counts reviewed the historical record and found glaringly absent from colonial times until 1994, consistent examples of the government removing firearms from someone accused or even convicted of domestic violence. Wow. Why would that be? Let's pause for a second here. Let's think big, deep historical thoughts. Why wouldn't the framers have noted domestic violence laws?

So one theory, just a bit balling here, is that domestic violence wasn't even a crime at the time of the founding. That might have something to do with it. It wasn't even a crime until like 1989. So I think in most states by the 20s, it was technically a crime, but taken seriously and actually like enforced in the criminal laws, like the 70s, 80s, absolutely. I mean, actually in some jurisdictions, it was not a specific crime until the 1980s. It was just sort of lumped into general assault. Yeah.

Right. Domestic abusers possessing firearms is deeply rooted in our nation's history and tradition. Terrorizing women. Right. That's deeply rooted in our history and tradition. See that. Right. And thumb, Melissa, family law and criminal law scholar is alluding to.

Right. Like in many jurisdictions, the rule that you could not inflict upon your wife, right, an injury larger or wider than your thumb, like literally the origin of the phrase. Using an implement. Like that's allegedly apocryphal, but the idea, it's apocryphal, but I mean, the idea still stands. Reva Siegel's The Rule of Love talks about this in great detail, just incredible state solicitude for the prospect of women being terrorized by their partners. And so but all of this is what the method of both Bruin and Dobbs honestly demand, right? So just to like pause for one second on this. So our elected representatives today, when more of us do get to participate in our democracy, although many,

you know, way too many still don't, we decide we want to, say, limit gun ownership by individuals convicted of domestic violence or, as in this case, under a DV protective order. And the fact that this vastly narrower political community of yore made a different choice, right, not to criminalize or not to prohibit gun ownership, all of that dooms our laws today. Literally, that's what the method of Bruin requires. And it is madness when you put it that way. Lest you think this decision comes out of nowhere, it is worth remembering as Sherilyn Ifill, former president and director counsel of the NAACP, LDF, and former guest on the show, as Sherilyn pointed out, that after Justice Thomas didn't speak at oral arguments for over a decade, the first question Justice

Thomas asked, the question that broke a more than 10-year period of silence on the bench, was about whether it is constitutional to prohibit people who are convicted of domestic violence misdemeanors from possessing a firearm. This decision, that is the district court decision, and Justice Thomas's line of questioning, really are all the more troubling after yet another set of mass shootings where the shooter or a shooter had prior encounters with law enforcement related to domestic crimes. But here's Justice Thomas in 2016, in a case called Voisin, questioning whether the Second Amendment prohibits the government from barring people who are convicted of domestic violence offenses from possessing a firearm.

Can you give me, this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right? Well, I'm looking at the, you're saying that recklessness is sufficient to trigger a violation, a misdemeanor violation of domestic conduct that results in a lifetime ban on possession of a gun, which at least as of now is still a constitutional right. You think of another constitutional right that can be suspended based upon a misdemeanor violation of a state law. So one other piece of, I don't know, court culture related to the blue of Tiffany Trump's wedding. So in the blue Senate, something I wanted to flag is the blue slips. So, you know, Democrats have retained control of the Senate. But as we've said, there are a bunch of judicial vacancies. And there haven't been nominations or confirmations in a lot of states with Republican

senators, especially states with two Republican senators. And that is, I think, in large part, because the administration and the Senate are honoring the blue slips for district court nominees. Blue slips are the idea that the home state senator must consent to a nominee. And, you know, newsflash, Republican senators are not giving their OK. They're not returning blue slips for basically any nominees or at least any nominees that are even plausible for a Democratic administration with the Democratic Senate. So Mark Lemley, a professor at Stanford Law, has a paper, Red Courts, Blue Courts, in which he kind of gives some of the current statistics related to this. So of President Biden's 58 district court appointments, as of September 2022, 46 have been in blue states. So that's almost 80 percent,

seven in purple or swing states, and only five in red states. And this, you know, isn't because of where all the vacancies are. So the actual vacancies are much more balanced, you know, of the 96 district court vacancies, 47, so just about half are in blue states, 35 or 36 percent are in red states, and 14 or 15% are in purple states. And I just wonder if this will change if Democrats win Georgia and maybe get a more comfortable margin in the Senate. I'm not sure, but I hope so. There is just no reason to leave this many vacancies in the face of what is just pure obstructionism, right? Democrats control the Senate. And you need to be able to fill vacancies when you do that.

And I mean, the blue slips are such a Senate institution. And here's where I worry that Joe Biden being a creature of the Senate for so much of his professional life is an enormous obstacle to just saying, we have to discard that tradition. It's not being deployed in a reasonable or symmetrical fashion. And it is keeping you from filling literally dozens of district court and court of appeals vacancies. And like, I'm sorry, like blue slips have to be a thing of the past. So one other piece of follow up, which is just on the district court opinion out of Texas, that set aside President Biden's student debt cancellation. This was the opinion by Judge Mark Pittman. So a listener drew our attention to an excerpt from the transcript of a hearing in that case, which included Judge

Pittman comparing the authority that the HEROES Act gives the president to cancel debts to, quote, this is an actual quote, the authority given to Hitler after the Reichstag fire. This is normal stuff and apparently modern conservative legal thought. You know, a few listeners have asked for kind of updates on the student debt loan cancellation. You know, it's a little bit difficult to know exactly. There are so many different cases. The main challenge in all of these cases is whether the plaintiffs actually have standing, whether they have been injured, and there are different kinds of plaintiffs.

The Eighth Circuit entered what they called an administrative stay on October 24th that prevented the Biden administration from carrying out its program to cancel student debts. Now, administrative stays are supposed to be temporary orders that put a lower court decision on hold while the appellate court, here the 8th Circuit, figures out what to do. Here, the 8th Circuit took over three weeks. They waited until after the midterms to issue a six-page order entering an emergency injunction against the administration's student debt plan. Part of what makes this even crazier, besides the fact that it took them three weeks to write a six-page order, is that the Eighth Circuit put this massive presidential program that touches so many people's lives on hold without even concluding it was likely illegal. Without even concluding

it was illegal. The extent of the court's analysis of whether the program was legal was its statement that the program, quote, raised substantial questions of law. Now, the Biden administration has now asked the Supreme Court to vacate the EighthCircuit's bizarre emergency injunction. And in the meantime, the administration has further paused collecting student debt rather than canceling it. So basically, the administration is saying there won't be collections on debt until they get a court to tell them whether they can cancel the debt. And that's a good move since courts are basically holding up the administration's ability to forgive debt that the Biden administration thinks should no longer exist. And so the administration, therefore, shouldn't allow that debt that they are trying to cancel and forgive to be collected. But we'll see what the Supreme Court does, I say, with deep-seated

dread and terror. The bigger point, however, is that there are many different cases challenging the student debt cancellation involving different plaintiffs. And all of these cases raise questions about whether the particular plaintiffs in a case have standing to challenge the program. So the fact that the Supreme Court didn't block the debt cancellation program in one case with one set of plaintiffs doesn't really tell us what might happen in another case with a different set of plaintiffs. Yeah. And I think we don in another case with a different set of plaintiffs. Yeah, and I think we don't have time to really get into the many, many deficiencies in the reasoning of the district court opinion. But I do think that quote that Leah just read from the actual hearing is basically representative of the quality of the logic on display in the opinion.

Like, it's really laughable. And yet, it is what is keeping on hold that plus the Eighth Circuit are keeping the administration at this point from beginning actually to process the forgiveness and on the very thinnest of legal bases. But I think you're right, Leah, the Supreme Court is almost certain to weigh in on this before long. I'm just like, how did you decide that was where you're going to deploy your Nazi metaphor and not the January 6th beer belly pushed? Great question. Seriously? Anyway. Before we go, some news that should make your holiday shopping a little easier.

The Crooked Store has launched brand new merch inspired by your favorite shows just in time for the holidays. New items include sweatshirts inspired by Love It or Leave It and Hysteria, a big appreciator apron, and a magnetic poetry kit that lets you make your own terrible notes app apology. This holiday season, every order from the Crooked store will support Vote Save America's Every Last Vote Fund to make sure every voice can be heard in the face of unprecedented voter suppression.

Find the perfect gift for the Crooked fan in your life and pick up something for yourself while you're at it. Head to crooked.com slash store to shop now. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Kate Shaw, and me, Melissa Murray. It's produced and edited by Melody Rowell with audio engineering by Kyle Seglin, music by Eddie Cooper, and production support from Michael Martinez, Sandy Gerard, and Ari Schwartz with digital support from Amelia Montu.

See you next time.