Strict Scrutiny - We See You, Steve

Episode Date: March 23, 2020

Just what you need for quarantine-- a whole episode recapping the arguments in June Medical Services v. Russo. Plus, our suggestions for making the justices WFH, and rumors on who President Joe Biden's SCOTUS picks might be. 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. Welcome back to Strict Scrutiny, a podcast that's so fierce it's fatal in fact. This is Melissa Murray. And I'm Kate Shaw.

I'm Leah Littman. And we have a terrific episode for you, one that focuses on June medical services versus Rousseau, which was argued before the Supreme Court on Wednesday, March 4th. This is one of the most hotly anticipated cases of the October term. I just wanna note here, this is a second time that we're trying to record this. We did record it closer to the argument date, but unfortunately, events intervened.

We had some bad audio recording and then we had a bad virus pop up and now we're doing this directly from our home offices. So we hope the audio qualities is good because we are so excited to finally bring this to all of you. So thanks for your patience. Thank you for indulging these weird sounds that might be in the background, given that my house is adjacent to a rather busy street. And while I have attempted to insulate the audio, I can make no promises and don't want anyone to blame Melody for this.

So just wanted to put that out there. And, you know, we should also say at the outset, puppies and kids might enter the various recording studios that we have set up. So and Melody is not responsible for any of those either. So there's that. So before we get into June Medical, here is a rundown of the show. As always, we have some breaking news. Spoiler alert. You probably already know what we're going to talk about. And then we'll turn to June Medical,

and we will then finish off with a little bit of court culture. Leah, why don't you start us off with the breaking news? So we wanted to note two major cert grants that happened between the last episode we released and when we're recording this episode. Those cert grants are in the Affordable Care Act case. That is the case in which Texas is arguing that the amendments to the Affordable Care Act and the Tax Cuts and Jobs Act rendered the minimum coverage requirement unconstitutional and that the entire Affordable Care Act must be invalidated as a result. The Court of Appeals for the Fifth Circuit agreed that the minimum coverage requirement

is unconstitutional, and now the House and California and some other Democratic-led states are successfully convinced the court to hear the case now. case about whether the city of Philadelphia had to give out foster care services contracts to agencies that discriminate against same-sex couples. And this is not just a follow-on to Masterpiece, Cake Shop. Fulton is also a follow-on to some earlier cert grants, including the one involving the religious order Little Sisters of the Poor, which is about the ACA's contraceptive mandate, but again raises this question of conscience the Poor, which is about the ACA's contraceptive mandate, but again raises this question of conscience exemptions, which are increasingly a means of avoiding compliance with laws of general applicability that require extending anti-discrimination norms to a broad group of people, or rather extending certain kinds of health coverage to certain groups of people.

So we'll be looking forward to all of that. Despite granting cert in those cases, we should also note that the court's work has really kind of ground to a halt, like everything else, in the wake of COVID-19. So we learned this week that the court has closed the building to the public and has postponed its March sitting, which was slated to begin on Monday, March 23rd. It also recently issued an order relaxing filing deadlines for petitions for review. So petitions for review are now due 150 days rather than the ordinary 90 days that had been the case before. So those are 150 days after the lower court ruling. Motions to extend the time to file other documents, such as brief supposing review, will normally be granted, according to the court, if the grounds for the application are difficulties

relating to COVID-19. So again, everything's been turned upside down by this global pandemic, not the least of which is the court's own business. So what do you guys think about all this? This is obviously incredibly challenging for everyone, including the justices, but might there be a silver lining in that the court might move forward on some technological advances in the ordinary course of practice? I have so many thoughts about this. The first thing we should say is just on the kind of logistical front. So the order announcing the postponement of the March sitting was kind of vague, right? It said, we're not going to sit as scheduled in March. We will examine the options

for rescheduling those cases in due course. So the court, I think, could decide to hear cases in April. It already has cases scheduled for April. I think in all likelihood, those two will be postponed, although they have not yet. So the court could still try to hear some subset of the 20 cases that had been scheduled for March and April, you know, in April, in April and May, in May and June. Typically, the court tries to be done with all of its business by the end of June so the justices can spend their summers, you know, gallivanting across Europe, teaching, you know, classes to foreign students. None of that is going to be on the horizon this year, I am quite sure. So maybe, you know, they have some kind of calendar that

looks quite different from the calendar that they've adhered to for many decades. So, and the one other thing I'll say about the order, you know, just announcing the postponement of the march sitting was there's like this kind of weird and defensive line in which the court says the postponement in light of public health concerns is not unprecedented. And as precedent, I don't know if you guys caught this, but the court postponed. We follow precedent. But OK, so A, that's funny. But B, they say the court postponed scheduling arguments in 1918 in response to the Spanish flu. So they mentioned that. And then it shortened calendars in 1793 and 1798 in response to yellow fever outbreaks. That's in the order.

So, you know, when you're sort of seeking support for some point you're making and your three big cases are from 1918, 1798, 1793, like this is truly extraordinary, like what they are doing. And it is obvious on the face of the order, despite their odd insistence that it's routine and grounded and present, which by the way, I'm not sure why they even feel the need to stretch to establish. They can and obviously should be postponing these cases, at least the oral arguments. But to Melissa's point about technological innovation, that I think is an important one. And yeah, I think there's lots of opportunity, actually. I wonder if one of the reasons they felt the need to say that is because some of the cases that they

were scheduled to hear in the March sitting that they postponed involved subpoenas for the president's financial records. And there was some commentary when they did postpone the sitting about, well, this is going to be a huge boon to the president, because it's going to mean that we're not going to get any of the information that could have been gleaned from these subpoenas until after the election. And, you know, I think that that's true. But I also think it was completely the right call not to have this sitting, given like the public health emergency, you know, given the age of the different justices. I mean, like, my goodness, if any oral advocate got within not even six feet, but like 60

feet of Justice Ruth Bader Ginsburg, like they would have all of America or at least a lot of America to answer to. Can you imagine oral arguments happening on Zoom right now? I mean, just like a gallery of all nine of them and then each advocate. I mean, is that where we're headed? And we're teaching classes over Zoom now, and most law students are going to be learning remotely, either asynchronously or synchronously until the end of the semester, might they be bestirred to change as well? Justice Breyer can't stop his own phone from going off during oral argument. I just don't know if he is quite equipped to handle oral argument by Zoom. The D.C. Circuit just tried to go with this, and it was a disaster. Judge Griffith got dropped from the call for five minutes. The judges were saying this is a mess. I just don't know if they are

ready to do that, at least in short order. I think telephonic arguments would be a good sort of compromise position. A lot of courts of appeals already do those. All of the justices are familiar with the telephone. And I think that that would be far preferable, just all of them calling in on landlines, advocates doing the same. Tom Goldstein actually on SCOTUSblog, I thought had another interesting suggestion, which was, so there's 20 cases between March and April. There are the tax cases that you mentioned, Leah. There are the faithless elector cases, which could be hugely important and really should be decided prior to the November election. And maybe just those two and maybe a few others need some kind of oral argument, whether it's telephonic, whether it's via Zoom, whether it's in an empty courtroom with the justices spread out in some new configuration.

But a lot of the other cases potentially could be disposed of on the papers. And maybe they should somehow triage those 20 cases so they're not all held over until the fall. And I also think that, you know, there's nothing sacrosanct about having their argument calendar done by April. If things look really different in May or June or July, they should hear some of these cases then under some conditions. I'm not sure what those conditions are. So how are the judges, how are the justices rather going to work with their clerks in this new environment? I mean, I imagine that's probably easier than figuring out how to have oral arguments. I mean, but like, are they all getting on Zoom every day or is everyone just sort of monastically toiling away in his or her own bunker?

Well, then that presupposes no one is coming in, no one's having any physical contact, and I desperately hope that is true. No one should be having physical contact. We know some people are coming in because today on Friday, the Public Information Office released something that said the justices had a conference. Several of them participated remotely, i.e. there were some people who were there. The Public Information Office also clarified that they were not doing their handshakes. But again, I just want to reiterate, if any human being gets within six to 60 feet or less than that distance of Ruth Bader Ginsburg. That is completely messed up.

And that includes, by the way, Justice Brett Kavanaugh, who during, like, as this pandemic was unfolding, like at the kind of height of it, as schools were canceling and whatnot, he chose to fly to Kentucky with Senator Mitch McConnell and former White House counsel Don McGahn for the investiture of a former clerk as a judge. Like he should not be getting anywhere near any of his other colleagues for at least 14 days. Yeah. And I mean, I have to believe that among the justices who called into that conference were Justice Ginsburg, Justice Breyer. But, you know, we don't know that for a fact. And I mean,

I guess I totally agree. Justice Kavanaugh should not have traveled. I also think that, you know, I think it was maybe two weeks ago, it seems like a lifetime ago, but two weeks ago before everyone was in full shutdown mode. But, you know, while it was during the kind of, I don't know, middle phase of rising concern in, you know, American cities about proximity to others, I think Justice Ginsburg went to the opera. And I'm not sure that was a great idea. And so I presume by now everyone has very much internalized this stay at home and minimize if not eliminate contact kind of norm. But clearly they haven't.

They have not. They have not. They have not. They have not. I just, I went for a walk in my neighborhood here in Oakland and I, by myself, and I saw these two teenagers embrace at the intersection. I started screaming, separate, separate. I know your parents, separate. And I'm sure they think I'm like this crazy old lady who's just, but I'm just like, why are people hugging? Why are you getting your Mac on on the corner? It's insane. In a pandemic. One other thing that I do wonder about coronaviruses in the court is like, is there going to be a case or an issue or an emergency petition that makes

its way to the court soon related to coronavirus? You know, we've already seen some instances of elections that are, you know, postponed or held under different conditions in light of the virus. Obviously, there are emerging reports of coronavirus in prisons, in immigration detention facilities. You know, those could generate claims. And I just I imagine that's going to happen, but I don't know what that's going to look like and how the court is going to deal with it. It seems as though the district court seemed to be very much handling this individually in terms of how much they are postponing or changing the ordinary procedures for sort of regular business.

But I mean, I think there are hard questions about how, you know, whether those kinds of challenges, because I agree the most likely, I mean, apart from some big broad challenge to some emergency powers assertion by the president, some kind of, you know, either prison or immigration detention kind of conditions challenge related to the virus would have to first be heard in, obviously, a district court. Presumably, there is a real concern about a lot of the federal judiciary largely shuddering, though correctly with respect to the safety of its employees they're needing to be some kind of mechanism to bring certain kinds of challenges and and i'm not sure what that looks like and i

have to believe at the supreme court level however a case would ultimately arrive there they would just on the papers have to dispose of it i can't see any other way so meaning no oral argument no need for anybody to gather they get some filings they issue an order but i i think we'll probably have our eye on all those questions. Okay, so let's turn to June Medical Services, which is going to be our focus today. So this is obviously a case that we have talked about a number of times. We first noted this case in our episode last summer on reproductive rights and justice. We mentioned the court's decision to grant the case in October 2019. But for those of you who are new to the podcast or just not yet familiar with the case,

we will bring you up to speed before we go deep on the oral argument from a couple weeks ago. So Melissa, do you want to sort of lay the groundwork on June Medical Services? I'd be delighted to. So June Medical Services is a little bit like the Groundhog Day of cases because you get the uncanny feeling that you've heard all of this before. And that's not a surprise. And it's not just because we've covered it before. It's because the law at issue in June services is actually one that you and the court has heard and discussed before. So the law at issue here is Louisiana's Unsafe Abortion Protection Act, which was enacted in June 2014 and requires doctors who perform abortions in the state of Louisiana to have the right to admit patients to a hospital within 30 miles of the place where the abortion is performed. So it's a standard admitting privileges law. If it sounds familiar to you,

it should. The Louisiana admitting privileges law that's being challenged here is virtually identical to the Texas admitting privileges law that the court struck down in a five to three decision in Whole Women's Health versus Hellerstedt back in, wait for it, 2016. So just four years ago. In Hellerstedt, as here, the state defended the admitting privileges law on the ground that it was intended to protect the health of pregnant women. In Hellerstedt, as here, the state defended the admitting privileges law on the ground that it was intended to protect the health of pregnant women. In Hellerstedt, a majority of the court agreed that the state has a legitimate interest in protecting the health of pregnant women, but concluded that there was no evidence that the admitting privileges law actually advanced such an interest. Indeed, the court concluded that the law made it much harder for women to get an abortion without offering anything more than negligible benefits.

So that's the background. I will also say that, again, if the law sounds familiar to you, it's not just because you've heard it here. It's supposed to be familiar to you. It's one of these model abortion restrictions that's been promulgated by a group called Americans United for Life. And they draft these model abortion laws and parcel them out to the states. And the states are basically free to adopt them in the way you might adopt any other provision of a proposed model code. And interestingly, Clark Forsyth, who is the head of the Americans United for Life, was present on March 4th at the

Supreme Court for oral arguments. So they are a big group involved in proffering and promulgating these abortion restrictions. And these admitting privileges laws are one of the standard arrows in their quiver of abortion restrictions. So Leah, how did this case go through the lower courts? So there was a trial at the district court, and there was some interim relief granted to the abortion providers. And this is going to become important later because while the temporary restraining order was in effect, the district court required the plaintiffs, the abortion providers and clinics to try and obtain admitting privileges while the trial was going on. So after those proceedings, the district court issued an extremely lengthy and thorough opinion finding the admitting privileges law unconstitutional, concluding that it, like the law at issue in Hellerstedt, didn't advance women's health and

burdened abortion. The Court of Appeals for the Fifth Circuit vacated that injunction and said, well, maybe this law is constitutional because maybe the doctors could get admitting privileges after all. A side note, the author of that Fifth Circuit opinion, Judge Jerry Smith, recently issued a dissent from a Fifth Circuit case that upheld the structure of the Consumer Financial Protection Bureau, in which he accused the panel majority of thinking, quote, stare decisis is for suckers. Judge Smith, I've heard that phrase too. If you'd like us to send you some strict scrutiny swag, please write in. Anyways, after the Fifth Circuit vacates, the district court injunction, the abortion

providers and doctors ask the Supreme Court to stay that opinion, thereby preventing the law from going into effect and shuttering two of the three clinics in the state. The Supreme Court grants that stay by five to four, with the chief justice joining the four more liberal justices. And then the court granted certiorari in the case. And here we are now. And we should say when the court decided to take the case, it also granted a cross petition by the state of Louisiana asking the court to find that the clinics and the doctors who are the plaintiffs in this case, in fact, lack standing to challenge the Louisiana abortion law, although they had raised no such challenge below. So we'll talk about that in the context of the argument, but we should just flag that we were

all pretty stunned, I think, that the court decided to include that question in its cert grant at all, just for the simple reason that the court typically doesn't pass in the first instance on questions that weren't raised below. And in the lower courts, although Justice Alito raised some questions about the degree to which this is true, I think that it's pretty clear that Louisiana not only didn't argue that the plaintiffs in the case lacked standing, but affirmatively conceded that they did because Louisiana wanted the courts, the lower courts, to go ahead and decide on the constitutionality of its law. Anyway, okay, so we will talk about that. Basically, let me just set the scene a little bit in terms of the oral arguments. So there are three attorneys arguing before the court. Arguing against the Louisiana law is Julie

Rickleman of the Center for Reproductive Rights. Defending the law is Louisiana Solicitor General Elizabeth Mural. So she's the state solicitor general. So she's kind of the chief appellate advocate for the state of Louisiana. She may actually be the first SG that Louisiana has had. It's not an office that every state has, although they're more and more common. And she was joined by the federal government. So the deputy solicitor general, Jeff Wall, also argued in defense of the Louisiana law. And, you know, that sounds a little weird. And it is actually that the federal government, there's no, you know, clear federal interest in this case. And yet the federal government asked for and received permission to argue in defense

of the Louisiana law alongside Louisiana. And we should say that in the Obama administration, when the whole woman's health case that Melissa was just talking about was decided and when it was argued, the Obama Justice Department also argued in this case, in this instance, sharing time with the challengers, arguing against the constitutionality of the Texas law. So sort of it's an odd thing, but it is the case when the Solicitor General seeks time to participate in oral arguments. In a case, it almost invariably receives that permission to do that. There's a great student note that I think Leah, you and I both read in draft that has recently been posted by a couple of Yale law students, essentially just describing this kind of odd practice and kind of charting its emergence of the SG asking and almost invariably receiving permission to participate in

oral arguments. So you looked at the piece too, right, Leah? Yeah. So it's by Darcy Covert and A.J. Wang. It's not clear to me that it's a student note. It's a meaty 50 plus pages. So they might be sending it out as an article. And so I hope some law review picks it up because it is super interesting. Totally interesting. Anyway, so those are the players arguing before the court. Can I interject really quick just to say that we have talked about the dearth of women advocates before the Supreme Court bar this year. And this is actually one of the cases where that gender imbalance is actually corrected. And that's perhaps unsurprising given the nature of the issue. But it also is worth noting that this was Julie Rickleman's first time arguing before the court.

And I believe it was actually Elizabeth Merle, maybe her second time arguing before the court this year. She was also the advocate for the state of Louisiana in Ramos, which was the earlier case about Louisiana's non-unanimous jury conviction law that was challenged. So two women here and one man, but all of them arguing about lady parts. And even though it was Julie Rickleman's first argument, she, I think we will probably come back to this a few times in my view, like absolutely crushed it. Crushed it. Yeah.

She was extremely effective at, she just she was extremely effective at getting across her point. She was very efficient in getting out a bunch of different arguments in a short period of time, just extremely well prepared and could really pivot, you know, between answering the justice's questions and getting back to her argument. So much so that, you know, when I was listening to the argument, it was around the time that Elizabeth Warren and Kate McKinnon did that, you know, Drake flips the switch TikTok. And I was envisioning myself doing that with Julie, but only sometimes. Yeah. So she was fabulous. And, you know, as we've talked about, there is this kind of increasingly small elite cadre of lawyers who argue before the Supreme Court. And I think

everyone is nervous about giving someone their first shot at an oral argument. And I think, you know, Julie should, I hope, dispel some of those fears because she did an absolutely superb job. I was talking to a law professor who, you know, I don't know, I won't name her, but she's somebody who really studies the Supreme Court. And she very casually, when we were talking about the argument, said, oh, I think it was the best argument I've ever heard. And I mean, and she really, really knows Supreme Court arguments. And I don't think that's a crazy assessment. I think she did a truly superb job.

And I think what you said, Leah, about the efficiency, she was so economical in her answers, right? There wasn't, she wasn't stumbling, she wasn't reaching. And she was just incredibly effective at very calmly pivoting back to the key points that she wanted to make. So let me just interject there, Kate, just to say that this is actually not the first time the Center for Reproductive Rights has used a first time advocate in a high profile abortion case like this. So in Whole Women's Health versus Hellerstedt in 2016, Stephanie Toti was a first time advocate before the court. And I don't know, what do you

think about them just using these very high-profile, high-stakes opportunities to showcase someone who is relatively untested before the Supreme Court bar? Credit to the Center for Reproductive Rights for understanding that much of the time, it is better to keep on a case a lawyer who knows the record, who was there for all the lower court proceedings, as opposed to bringing in some Supreme Court specialist who doesn't really know either the facts or the issues in the case in as deep a way as someone who has lived and breathed them does. And I do think that Julie was just superb on that score and that there is real value in that kind of continuity. One of the areas in which Julie really shone was on this third party standing issue that Kate, you just introduced, because Justice Alito was obviously very interested in this issue and asking her a lot of questions about, well, how can it possibly be the case that doctors whose interests conflict with their patients could have standing to raise those

patients' rights. And Julie was just hammering over and over and over this very clear and I think accurate rule about the court's cases, which is anyone who is subject to an unlawful statute, i.e. a prospective criminal or civil defendant, has standing to challenge that law. But then she would also quickly pivot to explaining why that was the rule, why the court's decisions have said that. So let's just play a clip of her doing that here. This court has squarely held in many cases that a plaintiff directly regulated by the law can sue. And those cases make sense for at least two reasons, Your Honor. First, because a plaintiff

should not be subject to severe penalties under an unconstitutional rule. And second, if the plaintiff is the one directly regulated, then it makes sense that they are the appropriate plaintiff. Can I jump in on this third party standing question? Because you're right, Justice Alito was literally like a dog with a bone with this issue throughout the argument, which is, I guess, not surprising. It is perhaps surprising that the originator, the progenitor of this argument or this sort of seed of doubt is actually Clarence Thomas, who included this bit about third parties standing in his dissent from Whole Women's Health versus Hellerstedt. But perhaps it is unsurprising that he didn't say

anything because he rarely speaks in oral arguments. But he really is the origin of that entire line of argument. But it was Alito who a lot about Justice Thomas's writing in box, you know, suggesting that the court's abortion cases and contraception cases are illegitimate because those movements, you know, had some relationship to eugenics, which, you know, is perhaps a mistaken historical argument. But it's one of the reasons, like, why we pay attention to his separate writings, because, you know, given the composition of the court and its direction, like, they do really have a chance of becoming the law and, you know, refashioning the law in those ways. Yeah. And that sort of those the kind of migration of these kind of off the wall ideas that he often introduces in concurrences or dissents that all of a sudden you hear amplified

in oral arguments, and then all of a sudden, you know, at least Gorsuch and maybe Gorsuch and Alito will join him. And that is sort of this migration of ideas that Jack Balkin talks about is off the wall to on the wall. And I think that we will likely see a lot of that in the next few years. But on this third-party standing issue, I will say, so presumably Justice Thomas agrees with the line that Justice Alito was pursuing. But I did think it was interesting that it didn't seem to get any real traction with anybody else, that Gorsuch didn't actually ask any questions at all, but that neither the chief nor Kavanaugh, who both did raise some questions, seemed interested in the way that Justice Alito was in potentially resolving this case on the third party standing issue. And so did you also read, you know, not a huge amount of interest in that line?

I didn't. It surprised me because I imagined that deciding this on procedural grounds might have been attractive to an institutionalist like the Chief Justice who might not want to decide this case on the merits during an election year and the procedural off-ramp would have been very appealing for that reason. But he did not seem to take the bait and didn't really seem interested in pursuing that line of argument. I mean, it really was Justice Alito by himself. And the chief very quickly moved everything to the merits within, I think, 10 minutes of the argument. Yeah. I mean, I think Julie's responses to these questions was she was extremely effective under fire. And I think one of responses to these questions was she was extremely effective

under fire. And I think one of the reasons why this line of argument didn't get a ton of traction, even though the court is the one that injected into the case by granting the cross petition, is that we say this case is partially about stare decisis and whether the court is going to stick with Whole Woman's Health versus Hellerstedt. But the third-party standing rule that Louisiana is advocating that doctors don't have standing to assert the interests of their patients when the state maintains there's a conflict between the two would really hugely refashion and unsettle a significant portion of the court's standing cases. Because in cases involving contraception

or a bunch of the court's abortion cases, the court has always held that clinics and doctors have standing when they're subject to an unlawful rule of decision. And that's a point that Justice Breyer really pointedly put to Assistant Solicitor General Jeff Wall. And we'll play a clip of that here. I have read the briefs. I understand there are good arguments on both sides. Indeed, in the country, people have very strong feelings. And a lot of people morally think it's wrong, and a lot of people morally think the opposite is wrong. And in Casey and the later cases, I think personally the court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people. Not all right.

So therefore, I take Casey as given. And I think eight cases where you've given standing. I mean, we could go back and reexamine Marbury versus Madison. But really, we have eight cases in the abortion area. We have several cases in other areas. And Whole Women's Health picks that up. Casey picks that up. And you really want us to go back and re-examine this. Let's go back and re-examine Marbury v. Madison. And you have good arguments. But why depart from what was pretty clear precedent? So Justice Breyer always

trying to bring it back to Marbury versus Madison. Appreciate that. This seems to me kind of a follow on from his dissent in Hyatt versus Franchise Tax Board, where he was sort of, you know, the Cassandra destined to know the truth and not be believed. Like, you know, they're just overturning everything. What's next? Like, they have no respect for the factors for overruling that Casey identified. They have no respect for Casey itself. And so I wasn't surprised when he made that move to actually enumerate the number of cases that rely on the third party standing doctrine. And then sort of like, are we overruling all of them now?

Is that all in question? From one Cassandra to another, I appreciate you, Steve. We see you, Steve. We see you, Stephen Breyer. We are you. And, you know, with no disrespect to your fellow Cassandra, I often find his very lengthy questions somewhat perplexing and difficult to follow. And yet I actually thought that this, you know, was sort of a soliloquy, but was actually

quite constructive and really interesting because he is kind of both talking about kind of this deeper question of stare decisis and Casey, the rule set forth and obviously Roe and Casey, although he's also talking about, you know, the importance presumably of the court not cavalierly walking away from, you know, at least eight, he says, cases in the abortion realm in which the court just proceeded to decide cases brought by doctors or clinics. But he also seems to be, this was like the only moment in the oral argument that I thought, in which he sort of talks about, you know, the court is struggling with the problem of what kind of rule of law you have in a country that contains both sorts of people. And he is kind of both talking about stare decisis and both sorts of people, not people who, you know, oppose and support third party standing. He's obviously talking about kind of this deeper

question of the Constitution's protection of the abortion right or not. So he is talking about the deep question at the heart of the case. And that's in some ways, just for some reason, even though it's a very different kind of line of questioning, it really reminded me of something from the whole woman's health argument, which was Justice Kagan pressing the Texas Solicitor General on just kind of this, why does Texas want to regulate abortion in this particular way? You know, the case is obviously almost identical to this case here, and Texas is arguing that this is protecting health, this is promoting health. And, you know, there's all this evidence that she and the other, actually, mostly the other female justices in the whole woman's health argument are pointing to about the relative

safety of the abortion procedure as compared to all kinds of other procedures. And then she just sort of directly puts the question to him, I just want to know why, like, you know, say Texas is allowed to do it. But why would they want to single out abortion like this? And I remember I was in the courtroom and there was just like this kind of micro pause in which everyone sort of like inhaled. And I kind of felt like that is the question at the core. And is Texas, is Texas going to just, you know, say to the justices what some members of the legislature said and what everyone knows that the case is about, which is discouraging, reducing, maybe eliminating abortion access in the state of Texas. And let's just like have the conversation on those terms as opposed to these manufactured safety terms. And of course, like that half second

passed and Texas said, well, you know, we're worried about unsafe procedures. And then everyone continued to argue the case on those terms. But there was like this, the Breyer moment was sort of similar to me in that it for a second made explicit what is really at stake in the case. And it is a frustrating area, you know, in these trap laws, these targeted regulation of abortion providers laws in that, you know, the states are operating in bad faith when they claim what all they're doing here is trying to make an abortion procedure safer. They just are. So let's just say, let me be really clear about it. Julie Rickleman argued this case on behalf of the Center for Reproductive Rights, but

she got a lot of assistance in the cross-examination by the justices themselves. So Justice Sotomayor, Justice Kagan, Justice Breyer, and Justice Ginsburg were all there ready to really hold the Solicitor General of Louisiana's feet to the fire on this. And they got in, I think, more than a few glancing and then some really direct blows that made it hard for her to hold together a coherent case. I mean, they were really, really effective. And it reminds me of this piece by Tanya Jacoby and Matthew Sag. Jacoby is a professor at Northwestern. Sag is a professor at Loyola of Chicago called The New Oral Argument, Justices as Advocates. And this idea that oral argument is not just sort of an airing or hashing

out among colleagues of different views about a particular issue, they are actually doing work, like advocacy work on behalf of a particular side. And I think you saw that in this argument. Julie Rickleman literally got an assist from four justices when they all went to work on Wall and Merle. Yeah. So on the standing point in particular, Justice Ginsburg mentioned a case that you two, Kate and Melissa, discussed in the episode with Lauren Moxley on Ginsburg Tapes, Craig versus Boren, about whether, you know, a bartender who was subject to a statute prohibiting the bartender from selling certain kinds of liquor to, you know, underage men but not women could challenge that statute. And she even, you know, mentioned the bar name because she knows the case so well. The honk and holler. So let's play that clip. Craig against Boren, first of all, had a beer buyer who was a first

party plaintiff in the beginning of the case all the way through until it was on appeal. In addition to that, the state- Yes, but he didn't count. The case rode on the owner of the Hunt and Holler's standing. Craig turned 21. He was no longer subject to the law. And this advocacy point, I mean, that was really on display in the court's last abortion case as well, Whole Woman's Health versus Hellerstedt, which I think one of the moments that really decided that case was when Justice Breyer asked then Texas Solicitor General Scott Keller, name me one woman anywhere in the United States who would have benefited from admitting privileges. And he had to say he couldn't. There was no one, nothing in the record about that point. And I mean, that is also true true here, like in a remarkable footnote,

in the Court of Appeals opinion, footnote 56, the Court of Appeals concedes that they didn't have any evidence about any woman who would have been helped with admitting privileges instead of a transfer agreement. And, you know, that concession, you would think, would go a long way to resolving the case, whether it does, we shall see. So merits. Part of what this case presented is whether the court was going to overrule Whole Woman's Health versus Hellerstedt or whether it was going to limit it and if so, how. And there are different ways the court could have and might limit the reach of Whole Woman's Health versus Hellerstedt. So, for example, some states have argued that you don't actually apply the test the court did in Whole Woman's Health versus Hellerstedt unless the burdens of a law are sufficiently great. Or perhaps you don't apply the test from Whole Woman's Health versus Hellerstedt if the state is regulating for a reason other than protecting women's health and safety.

But it seemed that to the extent the court might limit Hellerstedt, it would be on the grounds that Justice Kavanaugh had kind of signaled in his separate writing where he declined to vote for the stay on the Fifth Circuit's opinion, namely on kind of fact-specific grounds, allowing states to litigate around Whole Woman's Health versus Hellerstedt by arguing that the facts behind any particular law or in a particular state were different than they were in Texas. Which is basically what the Fifth Circuit did in its opinion. I mean, that was their whole line of argument that that was Texas, this is Louisiana, it's different. Texas is big, Louisiana is not as big. And there are perhaps more doctors and access isn't perhaps as circumscribed as it was in Texas. So I mean, they kept pushing Julie Rickleman on this, like, are you saying that there are never any benefits?

Like, at no point could there ever be a benefit. And I thought she handled this really gracefully. And again, to your point, she just kept coming back to her point and pivoting away from this. Like, you know, could there be something like that? Possibly. But this, everyone says that there are no benefits to these kinds of laws. And, you know, she had one exchange with Chief Justice Roberts about this. And because he is so clearly pivotal, I think in this case, maybe let's play that exchange now.

Counsel, do you agree that the inquiry under Hellerstadt is a factual one that has to proceed state by state? Your Honor, I think that facts may vary. But what we know is that the district court held a trial here and found that there were no material differences between this case and the other. No, no, I know, but if the issue, the statutes are on the books in other states, and if the issues are raised there, is the same inquiry required in each case? You have to have the district court examine the availability of specific clinics and the admitting privilege with doctors so that the litigation could be, the results could be different in different states.

Two points, if I may, Your Honor. This Court held in Holman's health that the Texas admitting privileges law was medically unnecessary and its burdens were undue. That holding should clearly apply to Louisiana's identical law, and certainly the Court's reasoning is applicable in Louisiana. Now, the burdens of a law may vary, but a law that has no benefits and doesn't serve any valid state interest is much more likely to impose an undue burden. I mean, could the results be different in different states? I think she is saying on a requirement like this, no, right?

When the burdens are so clear, there is no other outcome that is possible or defensible. I mean, the one thing that I wasn't sure about tactically is whether she might have given a little bit more leeway because the question isn't, you know, I think maybe asks, but assume everybody could get the privileges, or another way to pose the question would be, but there's no, you know, 30 mile proximity requirement, or there's no evidence of hospital hostility, or, you know, just vary the conditions on the ground. Is it always the case, inevitably, that an admitting privileges requirement will, you know, be unconstitutional because there are no benefits. And I thought tactically it might have, you know, leaving the door open might have been something that would have given the chief in Kavanaugh comfort. Maybe another law that requires admitting privileges, but where the specifics are entirely

different, wouldn't be controlled by Whole Woman's Health. But I'm not sure she said that. I think she seemed to be saying that. I just couldn't tell if she was saying all admitting privilege requirements or all such requirements that look like this one are clearly impermissible under Whole Woman's Health. So I'm not sure. That's the one place I wasn't positive that she served them something they wanted. Yeah, I mean, so Kate, you know, you suggested both the Chief and Justice Kavanaugh were interested in this. To my mind, like those two justices, while they were each asking about like possible factual differences that might exist between state, one state and another, they were asking the question in very different ways. So the Chief

basically only asked one question to each side, you know, isn't it the case that these benefits or burdens might vary state by state? And, you know, he was basically asking the Louisiana side, well, okay, I kind of see how the burdens might benefit or vary state by state, but how about the benefits? And Julie, he was asking, like, could there be any variety in among the benefits? Whereas Justice Kavanaugh, like all of his questions were designed to try to get her to say all admitting privileges are unconstitutional or won't you indulge me in hypothesizing a world in which a law has no burdens, which, by the way, the Fifth Circuit and I suggested was the case here, even though that's like wholly unsupported by this record. You know, he said maybe the doctors could get admitting privileges, even though the

district court had ordered the doctors to try and get admitting privileges for a year and a half, and they couldn't do so. And some of the doctors explicitly said, aren't going to give you admitting privileges because you practice and perform abortions. And the state's experts conceded that this law wasn't serving a credentialing function or just wasn't about expertise. But I think her answer was the best answer, not only for her client's interests, but also given the world in which we live and given Hellerstedt. The record and the facts have not changed from Hellerstedt to this case. There's still no evidence that a law of this kind

would help any woman anywhere. This law contains the 30 mile requirement. The state has conceded that admitting privileges aren't solely granted based on doctor quality or whatnot. So no, like a law of this kind serves no benefits and therefore it's unconstitutional. Like, might this be different in a world in which, you know, which is not the world we live in? Abortion is unsafe. A state uses admitting privileges only to credential doctors. And like, sure, but like, that's just not going to happen. And so like the Justice Kavanaugh line of questioning, to my mind, was just like this like ridiculous kind of specious, like bad faith, you know, oh, like, I'm gonna be like,

oh, is there a factual difference here when like, we all know there isn't one, right? It's just this like hand waving, you know, giving Susan Collins some cover for voting for him, where he like makes up some factual distinction between like this case and the next one, like, boy, bye, just like, come on, I was extremely not into listening to that portion of the argument. So OK, so assuming that you're right and that Kavanaugh is never actually in play and that his questions essentially reveal that, do you think that the very little that the chief said give and did you come away with more or less hope than you went in with that a whole woman's health would emerge roughly intact at the Louisiana law would would be sort of would remain on hold, would not be permitted to go into effect? optimistic just because Julie did so well, where maybe the chief and the four liberal justices say like, there's no meaningful distinction between this case and Hellerstedt, but maybe there could

be in others, but this isn't that one. You know, I'm not sure if that's what's going to happen. But I guess like, I think that based on the argument, that is probably the most likely scenario. But an opinion that leaves open the possibility that, you know, other very similar, but a little different laws might be, you know, constitutional. I mean, I was just rereading the chief's opinion in like, you know, completely Janice faced opinion in the commerce case, right? The census citizenship case. But Leah, you may remember this case. It rings a bell. Is it about it? Was that the one where they were enforcing the Voting Rights Act? That's the one.

Oh, it is. Totally remember it. So, you know, can you imagine an opinion in which he writes for himself and the four conservatives? I mean, either way, you know, there needs to be a bottom line that either the law stands or it doesn't. But that says, you know, admitting privileges are fine, totally fine. Invite states to do them. But sort of says as to this particular law, like the Texas law, you know, admitting privileges are fine, totally fine. Invite states to do them. But sort of says as to this particular law, like the Texas law, you know, both stare decisis and the identity

of this law in the Texas one compel us to invalidate the Louisiana law. Like it occurred to me that there could be two separate majorities for different kinds of principles in a case like this. Yeah. So I guess, again, if you want to sort of go back to the realpolitik of this case and this law, and I think this is sort of the mirror opposite of Justice Kavanaugh's line of inquiry, is this line of questions that Justice Ginsburg posed to Julie Rickleman, or rather to Elizabeth Murrell, about what this law actually does and what it's intended to do. And she over and over again just kept emphasizing and questioning why an admitting privileges law that's linked to this 30 mile radius of the abortion clinic. Like if women are actually going to have complications, they're going to have these complications when they are at home. And the reality of abortion access in the United States is that women are traveling enormous distances, even under the best of circumstances, in order to access an abortion. And so they're going to go

back to their homes. Their homes are probably going to be more than 30 miles away from the nearest clinic. They actually need, if you really do care about their health, physicians with admitting privileges at hospitals near their home, if continuity of care is truly the issue. And I think she just kept harping back on that, in part to sort of reveal that the reality of this kind of healthcare is that, you know, it really isn't the way that the law is sort of set out. It's not going to happen near the abortion clinic. It's actually going to be closer to the patient's home. And if you actually care about the patient, you wouldn't have this nexus, this proximity nexus at all,

even if you did have the credentialing factor. And so I found the twinning of her line of argument with Justice Kavanaugh to be the really kind of revealing moment of the argument where she was sort of delving into this reality. And as Leah says, he was inviting the court and the audience and all of us to kind of imagine a different kind of world entirely. I think another revealing moment in the argument was related to what we were talking about earlier, namely the Court of Appeals and Justice Kavanaugh's suggestion that if the doctors tried hard enough, they would be able to obtain admitting privileges, and therefore, you know, this law didn't impose any burdens. And Justice Breyer

invited the Louisiana Solicitor General to name for him which doctor in the record would be most likely to obtain admitting privileges, basically saying like, look, you know, tell me which one could do it. And which of the does, which doe? Yeah. And here's what happened when she did. I think doe two is your weakest case. I think there are others that are stronger, but I'd like your opinion, your opinion about which of these does is your strongest. And I'll be sure to look very carefully at that. You know, I personally thought this was revealing for one reason and then have the kind of like ridiculousness and thinness of the rationale that the Court of Appeals and Justice Kavanaugh seized on. I mean, if you look at the

record in this case, you know, the doctor that Louisiana named is not a surgical doctor, has not performed surgeries in over 15 years. You know, the state has said you can't get admitting privileges unless you treat patients in a hospital. That doctor isn't going to do it. Other doctors applied to hospitals, like at least three hospitals, and were either given the runaround or flat out refused because they were abortion providers. And there's just something really striking about anyone saying based on this particular record, you could conclude that a doctor might be able to obtain admitting privileges. And part of why I was going hard on Justice Kavanaugh earlier is because in that opinion, in which he said, well, maybe if the doctors tried hard enough, they could get a stay.

He also said, well, we don't have to worry about Louisiana enforcing the law because they put in this regulatory grace period. But that regulatory grace period didn't actually prevent any of the doctors from not being criminally prosecuted. And so there's just this air of it's all just a show and a charade. And it's not dependent on the facts or the law. Like we're just saying something given that like we know the conclusion we want to reach. And I just I do not enjoy indulging that world. Oh, but the other thing I wanted to say about that, Justice Sotomayor, we mentioned Justice Ginsburg flexing with the honking holler. This was Justice Sotomayor being like, oh, you want to talk

about dough number six? I'll tell you about dough number six, because by the way, I read the entire record back and forth and I can recite it back to you better than you can. That is so on brand. I mean, again, I think to the whole point about justices having varied and different experiences, she's the only member of the court who was a trial judge before coming to the bench. She's a only member of the court who was a trial judge before coming to the bench. She was a trial judge, then she was an intermediate circuit court judge, and then she became a justice. When she was on the appellate court in New York, she was a big fan of going to get the record and really pouring over it. And we were always challenged to go and get the record and make you know, make sure

we knew it inside and out too. So I was not surprised when she had all her does in a row and she could name which ones were doing medical abortions, which ones are doing surgical abortions. That's totally on brand for her. You know, it was a long windup both for her and for Breyer. So, you know, query whether that's the best use of time in a period where you don't have a lot of opportunity to talk. But I think, to both Justice Oetemeyer and Justice Breyer, I just sometimes worry that they're extremely long, dense questions, which sometimes if you're listening or even reading the transcript can run two, three pages, end up occupying such a significant amount of advocate time and of time that potentially could be used for questions by folks like the chief, who I think may be genuinely in play in this case. And I think that, I mean, from the tenor of their questions, at least, and I presume from their voting histories, both Justice Breyer and Justice Sotomayor know how they will vote in this case. And I'm just not sure that they needed to spend quite as much time formulating these questions when the chief, now the chief obviously is not shy about getting in when he's got something burning that he needs to ask. But I guess I wish that the questions were

a little shorter. Yeah. I mean, in an ideal world, we would all have Julie Rickleman's efficient, you know, word to content ratio. But I did think that that particular interjection was important, given that the thing that just the chief justice seemed to be concerned about was, you know, the facts and the record. And Justice Sotomayor was showing rather clearly that like, there's just no way you can say, you know, the burdens of this law are small, given, you know, the record here. Right. All right. So let's wrap on June medical services. I presume we will know by the end of June, although, as we said at the outset, nothing in the calendar is going to look like any other year. So it could,

I mean, the justices, the work that they do outside of oral arguments and conferences can be done in a very solitary way. So I think it is, you know, what I've been wondering about actually is say they do have opinions ready for release. Typically they take the bench and actually give these oral bench statements. So the author of the opinion will actually read in an open court a summary typically of the content of the opinion. If the dissenting. So the author of the opinion will actually read in an open court a summary, typically, of the content of the opinion. If the author of the dissenting opinion, if there is one, feels very strongly about the content of that dissenting opinion, and it doesn't happen that often, but a couple of times a term, often there will be an oral dissent. So there is this kind of public announcement of the opinions. I presume they're just going to issue the opinions

on paper and not do that, as opposed to holding all of their ready opinions for whenever they resume. They're doing it on Monday. They announced that they're releasing opinions on Monday, even though they are not going to take seats. So they're just going to release on paper. We talked a little bit about this in our recap of OT19 earlier in this season. But when Justice Kagan read her dissent in Ruscio from the bench, like we might term that a kind of demos prudence. Like she's not just speaking to her colleagues, she's speaking to the people. I think that's like a perfect opportunity for the court to kind of jump into the technological age. Why not read your dissent or your opinion

on Zoom and let like the people actually hear you? I mean. And that would be a really easy practice. Yeah. I mean, that doesn't require like nine people and advocates. I mean, that's just like one opinion, one dissent or a concurrence. Like what an easy way to kind of shift and sort of acknowledge change circumstances, but also that the work of the court is also the people's work. Yeah. I hope folks at the court are listening to this. Please take heed. Melissa has a great idea. I don't know if Zoom, but I think even an audio version of it would serve some public function. Yeah. I think you're right. The chief is obviously the pivotal vote here. I think maybe we actually hear this even earlier. I mean, if they can sort

of hash this out and they have all of this time in their individual home monasteries, like maybe we do get this one earlier than June. Yeah, I think it's possible. So briefly on court culture in the most recent Democratic debate, you know, SCOTUS has been ridiculously absent from most of the Democratic debates. I think it's been a huge failing of most of them. But the Supreme Court did come up in the most recent debate. And Democratic frontrunner now Joe Biden reiterated a pledge he has made previously to ideally appoint an African American woman to the Supreme Court. And so that's exciting, you know, for many reasons, but for, you know, close to home,

because it sent a lot of people speculating about who that what that short list might look like. And folks like California Supreme Court Justice Leandra Kruger, Sherrilyn Ifill, Michelle Alexander, and a number of people, I think, quite rightly included strict scrutiny co-host Melissa Murray on that list. So that's not the real short list. You'd be a great justice, Melissa. Well, I guess I don't know. It's a real short list. Are you telling us you haven't been contacted by Joe Biden's people yet? And if not, Joe Biden's people, please get on that. I'm good. I like what we're doing here. I'm not going to be the one to bring the court into the technological age. But I thought it was really interesting. And it did actually draw some interesting responses from people across the Twitter sphere, across the spectrum.

Some people applauded him and said that this was long overdue. Others argued that this was sort of mere tokenism and that it would be insulting to the ultimate nominee to be sort of fetishized in this way. I would note, though, that this is not the first time a presidential candidate has made a similar promise. Ronald Reagan made this very same promise when he promised to appoint a woman. I don't recall. I mean, I was a mere babe in arms when he made this promise. But I don't recall it garnering the same kind of brickbats. But this is something that we've seen before. And, you know, notably when Ronald Reagan actually got around to nominating a woman, he really didn't have a lot of Republican female judges to draw upon. You know, it was really Carter, who had done the yeoman's work of diversifying

the federal bench. So there were lots of diverse candidates who were Democrats, but very few who were Republicans. And so one of the reasons why Sandra Day O'Connor was, you know, an unusual justice in that she had a record as a state legislator and a state court judge was because there were very few options in the federal judiciary for Reagan to draw upon. So he ultimately wound up taking Sandra Day O'Connor from Arizona, who at the time was an intermediate appellate judge in Arizona. Yeah. And someone else, you know, the reason why that's not quite the accurate shortlist is because you also left someone out, Kate, Judge Katanji Brown Jackson, who we've mentioned on this show before, who is amazing.

Who's amazing. Yes. My fault. Yes. She's great. And she's fabulous. And she should be on any shortlist. And I'm sure is.

I was too excited to mention Melissa. Don't be that excited. No disrespect. Melissa wrote an article called Marriage is Punishment. The vetting has already begun. So there's that. Honestly, I cannot wait for them to listen to all of our podcast episodes. Just to be clear,

Melissa is not responsible for anything I say. Well, so that's the word part because people think we have no, neither listeners can't distinguish between us. Look, if it comes to that, I'm the one who said everything. Yeah.

Anything, anything that's a confirmation problem was Leah. Leah said it. Okay, so on that note, we will wrap this episode. Let's just end by saying we're super happy to be back. Our remote setups are coming together. Thank you again for bearing with us. If this show is not quite as polished as most are, but we will be there again soon.

And we will be bringing you a lot of content in the coming weeks. So obviously the pause in the course proceedings means that we're going to have to move a little bit away from kind of the ordinary docket following that we'd be doing this time of year. But I think we're going to bring you some different kinds of content and we're excited to do that. So thank you so much to our fabulous producer, Melody Rowell, to Eddie Cooper for our music. I got to thank Dave Schwartz and Nick Delahanty and the team at Northwestern that helped pipe

me in the first time we recorded this episode. Sorry that show never saw the light of day, but I really appreciated the efforts. To Greg Addison and the crew at NYU that worked so hard to pipe Melissa in, including for that last never aired episode. To all of you for helping to support the show by buying swag, especially our new Starry Decisives is for Suckers. Totes, hats, shirts. I guess we don't have any Starry Decisives for Suckers dog bandanas yet, do we? In the works. In the works. In the works. Okay, so stay safe, wash your hands. We will see you next time. Thanks, everybody. Thank you.