Strict Scrutiny - Unlawful Generally

Episode Date: November 9, 2020

Kate and Leah break down the first week of arguments from the November sitting, as well as some developments on the Court’s shadow docket. Follow us on Instagram, Twitter, Threads, and Bluesky

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

And I'm Leah Littman. And we are obviously super well-rested after this past week, but we still wanted to keep you up to speed with what's been going on at the court. So today we're going to cover Supreme Court news and recap the arguments that happened this past week and do a quick court culture segment on some talk about the court and election-related litigation. This coming week, of course, the court is hearing some big cases, among them the Affordable Care Act challenge, but we'll focus on that case after the argument happens in our episode next week. Right. So all this to say the election is obviously front of mind for us, for all of you. We're going to try to put it on the back burner just for a few minutes and stay focused on the court and its business this week. But do not worry, we will come back to the election and potential intersections for the court at the that is the shadow docket on a couple of cases that we previously flagged on earlier episodes. The first seemed pretty significant to me.

So this was McKesson versus Doe, which was the lawsuit against civil rights and Black Lives Matter organizer DeRay McKesson. The backstory here is that an individual at a rally that was organized by McKesson threw a piece of concrete at a police officer. And despite the fact that McKesson clearly never advocated for or spoke out in favor of any violence, the Fifth Circuit nevertheless held that he could be held liable on the theory that he had negligently staged the protest, which led to the assault. This was even though the court had previously said in NAACP versus Claiborne Hardware that states cannot impose liability for speech-related activity that negligently causes violence unless the defendant specifically intended to produce the violence. So instead of reversing the Fifth Circuit, the court vacated the opinion and directed the Fifth Circuit to certify a question to the Louisiana Supreme Court, specifically about whether Louisiana's law of negligence even permits recovery under these circumstances. So this seemed

significant, right? It did not let stand this clearly erroneous Fifth Circuit decision, but it sent back for this intermediate development of this state law question that will hopefully be resolved in a way that does not permit this lawsuit to go forward. So I thought that was a significant and good development. What did you think, Leah? Yeah, no, I think it's definitely good. Justice Thomas dissented. He did not offer a written opinion or explanation for why he dissented. But I guess I hope and expect that the Louisiana Supreme Court would say that liability does not exist under these circumstances, given that if it did, it would clearly violate Claiborne Harbor. Right. So hopefully we will. That's the last the Supreme Court will have, you know, in terms of encounter with this case.

But we'll keep our eye on it. Yes. And the second case that there was some action on in the shadow docket is the qualified immunity petition that we had previously highlighted. Taylor versus Riojas that was filed by some amazing lawyers at Oreck, including Tiffany Wright, who we had on the podcast over the summer, as well as Kelsey Corcoran and Elizabeth Krugshank, together with a fabulous new organization, Rights Behind Bars, that litigates on behalf of people in prison. The facts of the case were egregious. Taylor was kept for six full days in a pair of shockingly unsanitary cells that included massive amounts of feces in the water faucet and windows. He did not eat or drink for four days, fearing that the food or water could be contaminated. He tried to hold his bladder for as long as he could, and when he eventually involuntarily relieved himself, the drain overflowed and raw sewage spilled across the floor.

The Fifth Circuit said that holding him in those conditions probably violates the Eighth Amendment's prohibition on cruel and unusual punishment, but the officers could not be liable because they were entitled to qualified immunity. Specifically, the Fifth Circuit said that the right was not clearly established for purposes of qualified immunity because there was no case saying that holding a prisoner for six days in a feces-filled cell was unconstitutional. There was a case saying that it would be unconstitutional after like 10 to 15 days, but the Fifth Circuit said that's not sufficiently similar. The Supreme Court disagreed, saying that even if that's true, that no such case exists,

no reasonable correctional officer could have concluded that under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions. Therefore, the officers were not entitled to qualified immunity. This is a huge win. It is huge to get a qualified immunity win at the Supreme Court, bigger to get it by summary reversal. And to get it where there is conceivably no direct case on point is significant, too, because it revives Stephen's opinion, Hope v. Peltzer, that had kind of fallen out of favor at the court. Again, Justice Thomas dissented, again, without writing an opinion. So, you know, hugely important. It would have been shocking, but the court does many shocking things in the qualified immunity realm for the court to do anything other than this. But I think the deeper

point you're making is that to the extent that there's sometimes this ridiculous exercise of perfect fact matching that attaches to the qualified immunity analysis, one would hope that lower courts take away not just the specific finding in this case, but something methodological, which is like, no, you don't need perfect identity of facts. Justice Alito concurred, and he raised some concerns, but those concerns were not that the court had maybe raised the bar too high in order to overcome qualified immunity. Instead, in peak Alito fashion, he questioned whether the court's intervention was truly necessary since the case did not qualify under the court's usual rules for certiorari since it involved error correction. Of course, he never says this when the court reverses denials of qualified immunity or grants of habeas corpus. But, you know, neither here nor there for the time being. Okay. And a couple of final notes before we get to the arguments from the week. One,

the court has rescheduled, and I think this is maybe for the fifth time, a case involving a challenge to Mississippi's ban on abortion after 15 weeks of pregnancy. I don't know. They might take that case and they may just be waiting to do it. So, you know, we'll know, I think, in the next few weeks. And then the second, the court just got a couple of petitions challenging the Trump administration's Title 10 regulation. We talked about this a few months ago when the administration promulgated the regulation. Basically, it prohibits recipients of Title 10 family planning funds from even making referrals upon request to abortion providers or abortion services. This is a regulation.

So like the border wall and the remain in Mexico policy cases we mentioned last week, the court did grant petitions in both of those cases. This Title X challenge, too, could be mooted if the Biden administration decided to rescind that regulation, as, again, I assume that it would. So these would be significant grants if the court took these cases, but they may not ultimately be decided on the merits. Last Friday, when we were recording our episode at UVA, four Alabama Supreme Court justices urged the court to overrule Roe and Casey at the earliest opportunity. This particular case involved a wrongful death lawsuit against an abortion clinic by a would-be father for an abortion that occurred at six weeks of pregnancy. So in addition to the

Mississippi petition that the court is holding for some time, it appears that several states and many government officials are somewhat chomping at the bit for the court to, if not outright overrule those cases, substantially whittle them down. On that cheerful note, perhaps we will go to the sitting itself, which was the first sitting with Justice Barrett participating. And one of the cases that we wanted to focus on is the argument in Fulton v. City of Philadelphia, which the court heard the day after the election. This is the case we've previewed extensively about whether the city can, as a condition for entering into a contract with an agency that allows an agency to certify whether foster parents meet the city's statutory criteria for being foster parents, require the agency not to discriminate against same-sex couples. The argument was quite revealing on a few different fronts. One is it shows how significant it is that the chief justice is no longer the median justice on the court, that instead of a 5-4 conservative court,

we now have a 6-3 conservative court in which the chief justice's vote isn't necessary for the conservatives to prevail. Second is about the direction that this court is likely to take on certain issues of religious liberty. And third is about the newest justice, Justice Barrett, who perhaps revealed more in this argument than she did in all of her Senate confirmation hearings. So maybe let's talk about these things in order. Okay, so first, the argument, I think, revealed how it's already consequential that the chief justice is no longer the median justice on the court. Because the chief justice's opening questions to the challengers, the agency, indicated that he was very sympathetic to what I think is the best argument for the city, namely that the city gets to impose conditions on its contractors even if it could not impose

those conditions as a regulation with the force of law. That is, no one doubts that the city, if it was certifying foster parents itself, could say, and I think must say, that we do not discriminate against same-sex couples. And the entire question is, when the city delegates that very narrow function to private contractors, can it say, if you want to be a contractor, you know, either providing services directly or contracting with a private party to stand in the shoes of government to provide those services has strong grounding in the court's existing First Amendment doctrine. When government is, say, hiring employees, it has a lot of control over those employees, including, you know, controlling the policy positions taken by those employees. You have to do basically what we ask of you. You have to adhere to our policy preferences, including, say, non-discrimination views or beliefs. And it's not understood that that violates or infringes upon government employee or government contractors' speech, again, say, to require government employees to adhere to non-discrimination principles. It's so interesting because the chief still gets to go first, so he still gets to frame an argument.

But I think you're right. You can sort of see as an argument unfolds that he doesn't really substantively control the line that the other justices are going to pursue. And in particular, because of this format where they're not all jumping in in a way that would permit him to kind of try to steer debate back in the direction that he might want to, you know, they just proceed sequentially. And so that, you know, no one else on the right of the court seems particularly interested in pursuing this line that the chief started with. Yeah. I also think this case previews where the court is going to go on

religious liberty. At least to my mind, it's not entirely clear how the court is going to rule for the challengers, the agency. But after the argument, I had little doubt that it would. And a few possibilities came out at argument for how it could reach that decision, all of which would represent a move toward greater exemptions from government rules for, again, in my view, largely white Christian religious groups and a great entitlement to government funds for, again, white Christian religious groups that engage in discrimination. of Espinoza and Masterpiece Cake Shop. Those are two important recent decisions of the court. But probably the most important precedent and the one that came up the most in the argument is Employment Division v. Smith, which basically says that a neutral law of general applicability, where it doesn't target religion or particular religions out of hostility, is generally constitutional. The question of how Smith applies here and whether Smith should be reconsidered at all

sort of permeated the argument. The court could say, we don't have to grapple with the future of Smith because this case isn't controlled by Smith at all, because this isn't a generally applicable law. Is that a reasonable ground for the decision in this case, do you think, Leah? You know, as a statement of the law, it's true that if a law isn't generally applicable, you're not in Smith world. But the reasons why they would say this particular condition is not generally applicable could mean that a the basis of sexual orientation. The challengers also say it's not generally applicable because this is a core religious beliefs of theirs, but that is just simply to restate that the law has a disparate effect on their religious beliefs, which does not make a law not generally applicable. The court could say, you know, a slightly different cut at this is that, you know,

enforcement of this condition was driven by religious animus. The evidence of this seems incredibly thin. You know, much of what the challengers point to as this evidence is essentially the city explaining why it would continue to grant contracts to perform other foster care services, even if it would not grant them a contract to perform this specific narrow service of certifying whether foster care parents meet the statutory criteria for being foster care parents. It's also possible that the court will carve out some kind of exemption. This is something that Justice Kavanaugh seemed to potentially be getting at. It basically says where the consequences of an exemption are relatively small, the government has to grant an exemption. You know, this I think was, so Kavanaugh seemed quite focused on this. It appeared that no same-sex couples had ever sought and been denied

certification by Catholic social services, and also that there were other social service agencies that did contract with the city that were happy to certify same-sex couples. And so this kind of, you know, de minimis impact sort of exemption seemed. And so this kind of, you know, de minimis impact sort of exemption seemed to be what he wanted to, you know, kind of write into the law. Yeah. So I think that that is also kind of misguided in part because even though there was not evidence that CSS had itself denied certification to same-sex couples, there was evidence that another organization had denied certification for a same-sex couples. There was evidence that another organization had denied certification for a same-sex couple for the same reasons that CSS is now offering. And in fact,

CSS's intention is they don't want to certify same-sex couples. So it's hard to imagine a line of reasoning that says, well, that's never going to happen. In addition to that, the burden on the agencies is basically nil, even if you are assuming that the burden on same-sex couples is nil. Since all the agencies are being asked to do is certify whether an individual or individuals meet the secular statutory criteria for being foster care parents, which doesn't even require them to be married, as Justice Breyer noted, they can just write in the margins if they want, we do not approve of their marriage. And, you know, nothing kind of follows from that. And, you know, more deeply, I just don't think we know the burden on the couple since we don't know how many agencies would refuse to certify same-sex couples,

and it minimizes stigmatic harm, and it would just turn the court's First Amendment jurisprudence into something of a mess since it would boil down to, well, how many agencies are there and how many of those agencies would serve same-sex couples. And so you would have different First Amendment exemptions that depend on how many agencies or service providers there are in a given locality. And that just defeats, I think, one of the core purposes of Smith, which was, this is a rule. It's a clear rule that courts can apply in all settings. Yeah, no, definitely. And, you know, it's, it's in addition to the kind of, there's the, the, the general harm that stigma creates, regardless of how many couples are actually affirmatively turned away. And then if we are going to kind of get into the weeds of sort of the, what the record shows, it just seemed like, um, the Kavanaugh line just kind of missed the

possibility that because there are other agencies, um, same-sex couples aware of this policy are not going to pursue certification with Catholic social services. So this fact that no couple had been denied, which the lawyer for the agency, you know, returned to a number of times, didn't seem to establish a whole lot, right? So the court should be providing broader guidance here, right? And so that, you know, it's a little, there are all these shades of Masterpiece Cake Shop, I think, in what you saw in the clear desire to find some factual hook in the record that they could use to sort of avoid any broad pronouncements. And, you know, look, it's, I can't imagine that they would do good with these broad pronouncements,

which would clearly seem, I think, if they're going to be deciding this case in broad terms, it does seem as though, you know, religious liberty would prevail over these anti-discrimination principles. And so I suppose an off-ramp would be better. But the effort felt really disingenuous to me and actually pretty inconsistent with what the district court found. And there were sort of these efforts by the lawyer for the agency to kind of spin as legal findings what seemed clearly to be factual findings. But that's sort of kind of like par for the course in some of these cases. If the court is able to find in the record something it can twist. And I think that was actually true about Masterpiece Cakeshop as well, with at least the overemphasis of the significance of these kind of fleeting statements in the record that all of a sudden the whole case ended up turning on.

So it did feel a little deja vu-esque in terms of similarities to Masterpiece Cakeshop. Yeah, absolutely. And then we noted how the possible routes that the court might take could have broader implications for First Amendment jurisprudence. I think it's also worth flagging, you know, another implication, which is what other kind of exemptions might Fulton and those various lines of reasonings require. So the challengers and the justices who were sympathetic to the challengers, the agency, were quite clear that they believed no entity could claim a religious exemption that would entitle them to engage in racial discrimination. What's way less clear is why that is. Justice Alito offered

the argument that that is because there are no honorable or reasonable bases for engaging in racial discrimination, whereas there are, the implication is, honorable or reasonable bases for engaging in racial discrimination, whereas there are, the implication is, honorable or reasonable bases for engaging in sexual orientation discrimination. Yeah. And there, it was clear that some of the language in Obergefell loomed really large, right? The court in that passage near the end of Obergefell kind of, you know, credits the position that religiously rooted opposition to same-sex marriage is decent and honorable. And I remember, and I'm sure you do too, when the decision came down, just really trying to figure out how much work that language would do. And, you know, here we see, right, it is significant that, you know, it's clearly dicta. It has nothing to do with deciding the case in Obergefell, but it was the basis on which Justice Alito made this line of argument that it is honorable and decent.

And the Supreme Court has agreed that it is honorable and decent. A majority of the Supreme Court, including all the liberals, right? Nobody took issue with that language. But and so just felt like throwing it back in their faces to say, look, you know, you all signed on to this language. It's honorable and decent. And, you know, that is just a clear distinction between this kind of discrimination and racial discrimination. Yeah. And throwing it back to their faces. We got a little troll Lito after some peak Lito. You know, he's really he's really bringing it on strong. Our boy Sam. He is feeling this new court. He really is. Yeah. But, you know, even granting him this premise, you know, that there are honorable and reasonable bases to engage in sexual orientation discrimination, but not racial discrimination, which, you know, I would not, but even granting it, I think it's incoherent to say that it follows that there are therefore

greater First Amendment protections that entitle people to exemptions from prohibitions on sexual orientation discrimination because First Amendment protections for speech and religious liberty do not depend on whether society or government or government officials like Justice Alito believe your speech or your religious beliefs are good or bad. They're supposed to protect all manners of speech and all manners of religious belief. Yeah, it's a great point.

Another indication about the implications of the challenger's position was an exchange with the federal government. And the federal government is supporting the agency. And they argued that the reason why there are no exemptions from non-discrimination provisions regarding racial discrimination is because the government has a compelling interest in ending racial discrimination, but it does not

have a compelling interest in eradicating discrimination on the basis of sexual orientation. But again, we are left wondering, why is that? And I think there were also real questions that followed from this position, because in an exchange with Justice Kagan, the federal government refused to say that governments also have people and institutions to engage in discrimination on the basis of sex, in addition to discrimination on the basis of sexual orientation. Another thing to flag, and another way in which the agency's position could have significant implications, is just the sheer number of arrangements in which the government provides services through contractors, right? Governments provide healthcare through contractors. They run prisons through contractors, education through contractors. Their contractors are employers of lots of employees. of sexual orientation and sex. And the cities and states that, you know, that have these contracts cannot, as conditions of these contracts, require them to not discriminate, right, prohibit them from discriminating. The consequences could be pretty staggering if you think about it. But I think that is the kind of logical endpoint of the argument that this agency and the federal government are making here.

Yeah. This argument also gave us a window into the newest justice, Justice Barrett. And as I suggested when we were doing kind of the opening to the segment, she revealed more in this argument that she did in her confirmation hearings. And none of it was surprising, at least for us Cassandras. So in her first questioning period, she wanted to know, What would you replace Smith with? Would you just want to return to Sherbert versus Verner? You know, to me, this signaled her interest, or at least least curiosity in getting rid of Smith. And there are already four justices on this current court who have called for Smith to be overruled. This would seem like confirmation that there are now five.

Didn't she then follow up and say, like, oh, look, you know, we don't usually decide constitutional questions if we don't need to. But it was, you know, so am I recalling correctly? Oh, yeah. No. But, like, I don't think she thinks, nor do I think any of the other justices think this particular case is the case to use to get rid of Smith. But the fact that she is interested in this, and as some of her later questions indicated, very interested in this, you know, signals that in a future case, again, like this would be where the fifth vote is. Yeah. And it is kind of like a bold move as you're just coming out of the gate as this new justice and you have this really well-settled, even if controversial in some quarters, precedent to just say, imagine a world without Smith. What should we replace it with? There was this eagerness. Let's go. Yeah. I don't want to overread, but it did seem to signal something. And I think maybe not just about Smith, but about precedent you know, President at large, maybe. Right. Another revealing moment was her question for the city, which was.

Let's imagine that the state takes over all hospitals and says from now on, you know, we are going to be responsible for hospitals, but we will contract with private entities to actually run them. And so there's a Catholic hospital and gets a contract with private entities to actually run them. And so there's a Catholic hospital and gets a contract with the city to run it. In fact, it's a Catholic hospital that's in existence before the state adopts this policy. And its contract with the state provides that there are, and the contract the state gives everyone, is that you can get some exceptions for some medical procedures, but every hospital has to perform abortions. So, you know, I just don't even know what to say about this, aside from just a further indication about where her sympathies lie. You know, I think you can often tell what a justice is thinking about when they press on? Well, the implications of this side's position would get us to this terrible point.

And the terrible points are what they are worried about. And that is, you know, where their sympathies lie. This is the horror show that she conjured up, right? Hospitals having to provide abortions to women. Exactly. Right. Not the horror shows that we were just discussing, you know, as far as a city or a government's inability to require its contractors not to engage in discrimination.

So her other question for the challengers was, I think, another Smith-related question, which was as follows. I have a question about something that some of the amicus briefs brought up, which is this third-party harm principle, the principle that religious belief can never give a believer the right to harm a third party even slightly. I'm wondering if you agree with that, and if so, if you could tell me where in law the principle comes from. The reason why I think this is significant is because it would mean that no matter the consequence of religious exemptions, you are entitled to a religious exemption. Again, if there was any doubt about where her inclinations lie, I think these questions kind of more than made that clear. Yeah. So our sort of fearless predictions

are probably somewhat evident from this conversation, but bottom line, what do you think coming out of the argument that we're likely to do argument? Yeah, I don't think the court is going to use a case to overrule Smith. But I think the challengers, the agency is going to win. And I think they'll probably write the opinion in a somewhat nonsensical way that suggests the consequences of this exemption are very small and the burdens on the agency are severe. And therefore, you know, they're entitled to an exemption. Reason, reason, reason. That doesn't really make sense of the facts. Right. But which, you know, which will be frustrating analytically. But, you know, and I'm sure that some of the language will be troubling, but, you know, it certainly may be

better than a big, broad statement that sort of supports a religiously grounded right to engage in discrimination for, you know, by any organization that does work with the government, right? Like that would be worse. So I guess we take some, some, some kind of bad faith, sloppiness in opinion crafting over really bad law. As a win! Welcome to the new world. Oh my God. I mean, these are going to be the choices I think that we're stuck with. Yes. Yes. is for suckers, but we won't come out and say that, which, you know, so that would be their treatment of Smith in Fulton. That may be what they do with Miller and Montgomery in Jones versus Mississippi. This, again, is a case about whether the Eighth Amendment requires sentencing courts

to determine whether a juvenile is permanently incorrigible before sentencing that juvenile to life without parole. And, you know, just one more quick refresher, right, in Miller v. Alabama, the court invalidated statutes that required juveniles to be sentenced to life without parole. And then in Montgomery, it held that the Miller rule was a substantive rule that applied retroactively, so to cases that had already become final. You know, the big question in the case is sort of what Miller and Montgomery mean and stand for, and how much of the reasoning in those cases controls here. And so what did you make of the court's treatment of its precedents in this case?

It was like a race among the conservatives to find various ways to limit Miller and Montgomery in the most dramatic fashion, if not just offer reasons for outright discarding them or disregarding them. So the chief wanted to know, you know, what specifically the defendant sought, if not an explicit finding that a defendant was incorrigible, which those cases had disavowed. Justice Thomas asked them if they would even have an argument without Montgomery, which, of course, he dissented in. Justice Alito offered up his view that the holdings of those cases,

as opposed to their reasonings, don't require ruling for the defendant. Justice Kavanaugh wanted to know, aren't discretionary sentencing schemes always fine? Discretionary sentencing schemes permit judges to consider basically any factor, like youth, that would mean all sentences are constitutional. Justice Alito said something along the lines of, wouldn't you agree our Eighth Amendment cases are wildly out of step with the original understandings of the Constitution, which, of course, he doesn't care about at all and has mocked in other cases. I don't actually know how to characterize that persona.

It's not really troll-lito, since he's not mocking originalism. It's not peak-lito, because he's not finding a procedural ruling in order to rule against a defendant. But it's a different brand of Sam when he is gesturing toward an interpretive methodology, which he has explicitly disavowed in order to ensure that he has enough votes to rule against the defendant. Okay, we need a name for this particular persona. Listeners, we invite you.

We invite you to submit a name for this persona. But it was just – it was very sad to me to listen to this argument as particularly the more liberal justices clearly pointed out the problems with the state's argument, which the federal government is, of course, supporting. And knowing that, again, these sane, logical, rational arguments are just not going to matter. So Justice Kagan made the observation that, you know, I'm struggling with, which is on the state's theory, how could we have labeled Miller a substantive rule? I mean, that's completely correct, given that all of the court's retroactivity cases say mere consideration of a factor, a decision requiring mere consideration of a factor is not retroactive. So Miller has to mean something more than that. And then Justice Sotomayor asked the Mississippi Solicitor General how her position made sense of all of the court's prior statements about the importance of distinguishing between youths with transient immaturity and youths who were permanently incorrigible. And the Mississippi Solicitor General's response was something like, well, we understand all of those statements simply to describe a crime, the circumstances of which make

a life without parole sentence grossly disproportionate. But that's not about youth at all. It's about the crime and the severity of it. And since we know these cases involve homicide, we know how that will play out. And it was just extremely excruciating for me to listen to these arguments. Two particularly cringeworthy moments for me. One is, again, our boy Sam. Sorry, we keep coming back to him. He just gave us a lot of material this week. He asked the following question. Yeah, I think you are, I mean, this is fascinating. You want to take us and you want us to take the courts of this country into very deep theological and psychological waters. Do you

think that there are any human beings who are not capable of redemption? be sentenced to life without parole is grossly out of step with our understanding and the court's understanding that most use are redeemable. And, you know, this is something that Josie Duffy Rice had flagged in our episode with her this summer, just about the oddity of this entire structure and superimposing on courts this framework of, well, are use permanently incorrigible or not? And it revealed that he's not, not only is he skeptical about, you know, Miller and Montgomery, but like still not convinced by Roper, I think, you know? Right, yeah. Like he just thinks he, this, and that's an, you know, God, I mean.

Roper is the decision that said juveniles cannot be sentenced to the death penalty. Right. So, yeah. So that was a really important decision, right? So that categorically, you know, individuals who commit their crimes as juveniles cannot be sentenced to death consistent with the Constitution. And then, you know, so Miller and Montgomery, in a way, build off of Roper. But evidence this kind of skepticism or even sort of contempt for this mode of reasoning that suggests that, you know, that there is something profoundly different about children, which, you know, was the predicate of the court's decision, again, first in Roper and

then these follow-on cases, was chilling, honestly. Yeah. It was chilling. Again, like, it was really stunning to me that he thought this was a gotcha question for the defendant because he could only think that, as you just said, if you reject all of the premises of all of the court's Eighth Amendment cases involving juveniles. Another moment for me that I did not enjoy was a very unclear question by Justice Barrett that just kind of graded me because it indicated either confusion or just lack of understanding

about the mechanics of collateral review and habeas corpus, which constitutes a significant portion of the court's docket and I think is very important to understanding this case, given the rules about retroactivity. But let me just interrupt you then. If it's clear in the cases, or if we make clear in this case, that it violates the Eighth Amendment to sentence a juvenile to life without parole if that juvenile is not permanently incorrigible, then the law is clear. And I guess I still don't understand. Or let's talk about collateral review.

You know, if this goes to a federal court on 2254 and there is no factual finding for the federal court to defer to. And the law has been misapplied. What about that? Then can you get relief on collateral review? It's possible she just lost her train of thought or was nervous. You know, this is her first sitting. But, you know, this case isn't on collateral review. On top of that, the Supreme Court has the power to review state court judgments on collateral review by so-called direct collateral review appeal from the state Supreme Court. And also, you know, the text of

the relevant statute 2254, the Anti-Terrorism and Effective Death Penalty Act says that if the state court articulated the wrong legal standard, then there is de novo review. Like this is the premise statute 2254, the Anti-Terrorism and Effective Death Penalty Act, says that if the state court articulated the wrong legal standard, then there is de novo review. Like this is the premise of the court's foundational case interpreting 2254, Terry Williams versus Taylor. So I just, you know, I don't understand what was happening here. And again, it's frustrating to me, given that one important way, the important way you can understand why the state is wrong here is you have to understand the mechanics of habeas, which is Miller wouldn't be retroactive unless it's a substantive rule. And if you don't understand the mechanics of collateral review, you know, that's just going to go over your head. Yeah. OK, so that's that. I grant you that. I mean, look, we're not all going to be Leah Lippman, like habeas geniuses. But yeah, that seems like a weird oversight.

Right. If you are in a position to be deciding the fate of juveniles in the United States, and, you know, again, like their lives and whether they are going to be eligible for parole, I would hope that you get an understanding about the structure of the area of law that is relevant to understanding what the court's prior decisions mean. And it's not like there's no habeas cases in the Seventh Circuit. I feel like there's certain kinds of issues you don't encounter. And every time you're coming from the D.C. Circuit, there are certain kinds of issues you don't get or you have overrepresented. But every federal appeals court has a lot of habeas cases on its docket.

She's written in habeas cases. Like one of her habeas cases was the case that refused to overturn a criminal conviction when the state refused to disclose to the defendant that it had obtained a confession by way of hypnosis of the witness. And so like she has been deciding habeas cases as a court of appeals judge. So this is not some new, you know, area to her. So, you know, fearless predictions, this is not, this doesn't feel like, I mean, no, it's, and it's so hard because as we, you know, we're talking this, it all gets a little technical in terms of, you know, retroactivity doctrine, you know, but the kind of core, you know, even of the

core of the substantive question here, right, is how the legal system accounts for the acts of children. And it feels to me as though the court will likely leave, you know, it's going to leave Miller and Montgomery intact, but basically say states have free reign to implement the rules however they choose. And, you know, when you see what states do, it can be basically nothing. Literally a sentencing judge can say, considered youth and proceed from there. And it seems like there are easily five, I don't know, maybe six people on the court who would say, no, that's basically fine. We're not going to require anything more thorough than that, which, you know, essentially guts those

really important decisions. You know, it doesn't mean that states cannot do much more. And I think, some will, but without, you know, a more robust constitutional floor, lots of them are going to be very happy to do nothing to actually implement this requirement that they consider youth at the sentencing stage. Yeah. Okay. Armed Career Criminal Act case about whether crimes for which a defendant is merely reckless about causing harm to another person can trigger the ACCA's 15-year mandatory minimum for certain gun crimes, particularly unlawful possession. The government's interpretation that crimes where a defendant is merely reckless about causing harm to another person would mean that crimes like driving under the influence or speeding would qualify as ACCA predicates, to give you some sense about the breadth of the government's position. I really found it difficult

to get a sense of where the justices were in this argument. I think this new format contributes to that. But I'm not super optimistic. And I'm always struck by the fact that these allegedly pro-Second Amendment justices are totally fine stacking on at least five additional years of prison for people possessing firearms. And here it would be people possessing firearms if they've had, again, like a DUI or other crimes that aren't exactly about taking a firearm and, you know, using it to hurt another person. I felt extremely personally attacked by Justice Alito in this argument, which is perhaps why I have devoted so much time on this episode to unpacking his position. So let's play that clip. Well, it's always a pleasure to have another case involving the Armed Career Criminal Act.

It is a real favorite. He actually said something similar in an ACCA case from last term, Shular v. United States. I look forward to every new ACCA case because the distance between the law and the reality gets bigger and bigger. This just irritates me because it's such a jerk move because I'm so sorry that he is called upon as part of his job with Lifetime Tenure to interpret this horribly confusing federal statute that has massive consequences for people's lives. And I'm sorry you'd prefer to spend your time exempting people from nondiscrimination provisions and suppressing votes. You know, you seem to have plenty of time to do that, too. Yeah, no, but it's I mean, the sentences I think noted this before, but these are savagely long sentences that will trigger. Right.

So the stakes are incredibly high. And it's also a very widely used federal statute. So this is something that he's deciding these cases. And there are a lot of them, but, you know, because it is complicated and badly written and there's this, you know, constantly bewildering interplay between the federal standard and the underlying state statutes. And so, yeah, they need to provide guidance. Like, yeah, it is, as you point out, kind of the job. Right. On a happier note, I did want to say thank you to Ken and Shamigan, who is arguing for Mr. Borden, who brought up the amicus brief in support of the petitioner that I helped put together with Malo Lampkin, particularly Jennifer Fischel, on behalf of several law professors. Our brief argued, among other things, that the government's interpretation of the force clause could lead to vagueness problems, given that the state criminal statutes often blur the line between negligence, criminal negligence, gross negligence, and recklessness. So a judicial effort to develop a test to separate these things from one another could prove susceptible to inconsistent results and charges of arbitrariness, which is the heart of a vagueness problem.

Didn't Joseph Baird even ask the government about that possibility in her line of questioning? And do you think she read your brief? Yeah. So she said, you know, one of the amici argues that, you know, your interpretation would generate vagueness problems. And the government unconvincently attempted to explain why it would not. So, you know, so at least even if she's not sort of making her way around the nuances of 2254, she is skimming skimming the most important amicus briefs. Nice work, Justice Barrett's law clerks. And that's not a knock on Justice Barrett. Law clerks always, you know, sort of first cut amicus briefs.

That's like extremely, extremely subtle practice. Those are the big cases from this week. Let's transition and talk about the election a bit before we wrap up for the day. You know, so this has been a week that has felt like a year, you know. And look, you know, we talked a lot about this before the election, right? That given the reality of, you know, this huge expansion of mail-in voting, the fact that a lot of critical states didn't change their counting rules to allow for those ballots to be opened or counted prior to election day, it was always going to take some time to tabulate the results of the election. And yet all that said, I think that intellectually knowing about the likelihood of delay did not equal emotional preparation for it. It was definitely true for me. I think that was true for a lot of people. So, you know, I do think that there needs

to be more sort of systems change if we're going to continue to conduct federal elections this way, because this has been brutal. Like, I don't know if any of us can go through it again. But anyway, so that I think is just a background fact to observe. So where are we and sort of what are the legal questions right now that we want to flag, Leah? Yeah. So as the counting continued, it became clear that Donald Trump was not going to win a majority of the votes in Pennsylvania, Wisconsin, and Michigan and potentially other states, too. We see you, Georgia, and hello to Stacey Abrams and very much Stacey Abrams. When that became clear, his campaign floated another strategy. Specifically,

they followed through on the president's earlier hints at essentially asking the Supreme Court to somehow intervene and expecting that the court and particularly the justices appointed by President Trump to hand him the election. So. Right. So, you know, the first signal this was, you know, when the president came out at 2 a.m. on, I guess, early Wednesday morning and, you know, buried within his rambling remarks were, you know, some promises. We're going to go to the Supreme Court. We want them to stop the voting. I think he meant the counting. I'm not sure what he meant by that either. But but so, yeah, so he invoked the Supreme Court in his first public remarks, you know, late, late on election night. And there's been more. So one of his legal advisors then said on Fox on Thursday, we're waiting for the United States Supreme Court, of which the president has nominated three justices to step in and do something. And hopefully Amy Coney Barrett

will come through. Now, this is this is not somebody who's a staff member or anything, an outside advisor, but clearly somebody the campaign is sending as a surrogate to put on television. So I think they're stuck with the remarks she made. And, you know, in a shocking week, that was really shocking, right? Hopefully, Jones's Amy Coney Barrett will come through. My God. But, you know, fortunately, there doesn't even seem to be a case that they could possibly bring to the Supreme Court to test the proposition that Amy Coney Barrett will come through. Right. You know, the margin of Biden's popular vote wins in all the states seems to be sufficiently large that the challenge ballots in various states won't make a difference. And the legal challenges they are raising, which in several states have been that their challengers aren't being allowed to observe the counting, have no basis in fact and wouldn't change the votes or throw out any votes. There was this insane exchange in the Pennsylvania case where the judge says, are your observers in the counting room? And the Trump campaign lawyer said, quote, there's a non-zero number of people in the room. And the judge, who's very much not amused, says, I am asking you, as a member of the bar of this court, are people representing the Donald J. Trump for president representing the plaintiffs in that room? And the campaign lawyer says yes. And the judge responds, what's your problem? Or in the Nevada case, there have

been a bunch of these cases that the campaign has tried to file. The campaign tried to enjoin the machine that matches signatures. And in this truly otherworldly exchange, the judge asked the campaign lawyer what evidence they had that the program matching signatures was the problem. And the campaign lawyer literally said, there was no evidence it was the problem, but that it was nonetheless, quote, unlawful generally. That is not how any of this works, though. Unlawful generally is maybe going to be my new moniker when anyone says anything I don't like. You know, I'm sorry. That's unlawful generally. Hopefully Justice Amy Coney Barrett will come through on that argument. The election is unlawful generally. I mean, that is basically what the president has been saying

publicly. And yes, but there's like the specific claims filed in states like Michigan and Pennsylvania and Nevada and Georgia are just like borderline frivolous to frivolous. And they wouldn't even matter. So it's not as though you're making ridiculous arguments that, you know, could, if accepted by a crazy enough judge, make a difference. Like they're terrible arguments and they don't matter. So what is the purpose of this? Right. Like, I mean, clearly it is to kind of create this, this, and it's working a little bit, this narrative of, you know, the, the, the battle has shifted to the courts, but if you actually take a look at what is happening in the courts, it is nothing, there is nothing happening in the courts except for, you know, really bad complaints being filed and being dismissed in a day or two. And so,

like, yes, there is action in the courts, but none of it matters. So I think that is an important takeaway. Yeah, I think that's totally right as to all of the suits that have been filed this cycle. The concern for me is that in the future, not all elections might involve a popular vote margin that is bigger than a number of challenged votes like ballots received after election day or received after a certain number of days after election day. And not all campaigns or officials will be so brazen as to go on television and say, we expect Republican appointed justices to throw the election to us Republicans. So in 10 years or four years or even two years, when we are facing the prospect of Supreme Court intervention in an election where,

again, the margins and turnout are not sufficiently large to make irrelevant any court intervention, and when officials are not so idiotic as to be transparently broadcasting the sense that Republican appointed justices will rule in ways that help Republicans win elections, will we remember this? And will people be think that we shouldn't be discussing how this was all out in the open and everyone understood why they really wanted to get six Republican appointed justices on the court for this very possibility. Maybe not in 2020, but those justices are going to be on the court for a bunch of future elections, too. And I mean, and we also should say we have been making light of the claims that have been filed in the last couple of days, I think, correctly. But there is this, you know, the one case that is still hanging out in the Supreme Court, you know, deserves somewhat more serious discussion than these, you know, like ballot watcher and machine challenge kind of joke lawsuits that have been filed. And so this is the case that we've talked about previously. The Pennsylvania Republicans challenged a Pennsylvania Supreme Court ruling that had found under state law that a ballot was timely and could be counted if it was mailed by Election Day and arrived by Friday, so three days after the election. So the Supreme Court, people will probably remember, divided 4-4 about whether to stay that ruling. The Pennsylvania Secretary of State then ordered

counties to segregate ballots that were received after Election Day just out of an abundance of caution in the event some future court might say that those ballots shouldn't be counted, right, to keep them separate from the ballots-4 tie was the first time. And the second time the court unanimously decided not to intervene right on the eve of an election. But then Justice Alito, for himself and Thomas and Gorsuch, wrote to, you know, like signal some real doubts about whether these post-election day arrivals should be counted at all and to, you know, express support for the segregation of the ballots and, you know, kind of be sort of scoldy and grumpy. So on Friday, the Trump campaign, which then which actually so subsequently the Trump campaign has actually attempted to intervene in that case, which, again, was brought by the state GOP, not by the campaign. So that request is pending right now. And then subsequently, the campaign asked the court for an order directing Pennsylvania counties

to segregate ballots received after Election Day. Now, if that sounds weird, because the Secretary of State had already ordered counties to segregate ballots received after Election Day, it was weird, right? It was, and it was the filing itself admitted that there was no evidence that ballots weren't being segregated. It suggested that they hadn't been able to confirm that every county was segregating ballots, right? Despite the fact that this request had no evidence to support it and that the state hadn't been given an opportunity even to respond, Alito issued the order that was requested. And it drew, I think, a bunch of kind of conflicting responses from the legal commentary. And I'm curious, Leah, what you thought of it. I mean, it struck me that it was totally inappropriate for Alito to issue the order that he did that relied that sort of accepted at face value the claims made in the Trump campaign's filing without, again, a response from Pennsylvania and sort of took the tone that it did, which was, you know, deep concern about, you know, the possibility that the order is not being complied with, again, without any

evidence to support it. And yet, so I was troubled by the tone, but thought that substantively, the order by Alito mattered not one bit. What did you think? Yeah. No, I mean, this order should not matter. Biden's lead in Pennsylvania is over 20,000. And again, that is just counting ballots that were received by election day. The total number of ballots received in the two days after election day is going to be substantially less than that. The largest county in Pennsylvania has less than 1,000 ballots. And again, Biden's lead in the state is over 20,000. And we still have yet to count many timely ballots in largely Democratic districts. So they're not going to make a difference, most likely. And, you know, the Secretary of State had already ordered counties to do this. But,

you know, despite this, an additional concern I would raise with the order in addition to the ones you did, which is, you know, him accepting the factual allegations is true without a response. And, you know, based on a filing that admitted the order wasn't really necessary. Sean Spicer was already using this order as a reason why networks could not call the election in Pennsylvania. Now, that's completely wrong. But again, the order became a basis to say, well, there's uncertainty in Pennsylvania and we don't know what's going to happen and therefore it would be improper to call a winner. That's all wrong, but it gave them enough ammunition to do that. And Jim Jordan did the same thing and he was retweeted by the

president. And a part of me worries that this was the goal of the filing and also seeking the order. Right. To be able to claim victory, right? Justice Alito agrees with us. And, you know, I'm sure this just happened yesterday. I'm sure we will see more of that today, including from the president himself, who I don't think has directly responded to it. I mean, they claimed that one of these ridiculous lawsuits was in Pennsylvania regarding where specifically their poll watchers could stand during the counting. And they got an order basically saying like, okay, you know, you can get, you can have, you can get a couple of feet closer to the counting. And they touted that as this huge legal win, which was literally the substance of the win was like the furniture had to be rearranged a little bit in one counting

location. So if they were able to call that a big legal victory, I am sure they're going to do the same thing with this order, which again, we think does nothing substantive. But I think to your larger point, Leah, about the precedent set for potential future election purposes, we could be in a world in which Pennsylvania is within a couple thousand as opposed to tens of thousands and growing. And we could be in a place in which all the other outstanding states have broken in ways that make Pennsylvania the critical state to decide the election. And then all of this looks, you know, much more sinister. And then I think that what clearly seems to be the strategy here, which is both to sow doubts about Pennsylvania, you know, both politically and potentially legally, you know, to later down the road

suggest that, you know, somehow there has been this kind of fatal corrupting of the voting process in Pennsylvania so that, you know, some radical remedy is required. You know, this all seems like in service of that larger project. And it is weird, just like it is dumb luck that it seems as though everything else is aligning such that they can't, you know, push that further along. But that I think would be the play if they had the ability to do it based on where votes stood elsewhere. Exactly. The solution cannot be that, well, you only get to avoid Supreme Court meddling in an election when you win the Electoral College by what might be 306 votes and your popular vote margins in all of these states are greater than 20,000. That is

no way to run a constitutional democracy. And I think that the way things are happening now is still very concerning, even if all these judicial interventions are not going to end up making a difference in this particular election. Yeah, agreed. So we will see. So Pennsylvania is going to respond. And hopefully that'll be the end of this saga. But it just makes me think that there will be further legal maneuvers before this is all finished. Also have to note the motion to intervene by the Trump campaign and the application was filed by none other than former assistant attorney general for the Civil Rights Division, John Gore, who was deeply involved in the census litigation and efforts to get a citizenship question on the census. He is as devoted to enforcing the Voting Rights Act as ever, it appears. Never change, John.

So that's all for today. Thanks, as always, for listening. If you enjoy the show, consider signing up to be a GLOW supporter at glow.fm forward slash strict scrutiny or rate us on iTunes. Thanks to our producer, Melody Rowell. Thanks to Eddie Cooper, who makes our music. Next week, we'll be at Duke Law School. And until then, bye. See you next time.