Strict Scrutiny - Welcome to Conservative Grievance Week

Episode Date: March 18, 2024

The Supreme Court will hear arguments this week on two First Amendment cases that ask whether the REAL victims of government coercion today are… conservatives with fringe views! Leah, Melissa, and Kate preview those cases, along with the mifepristone case the Court will hear next week. Plus, they do a deep dive on how SCOTUS uses the shadow docket to clear the way for executions.Strict Scrutiny is headed back to DC for another live show! Presale starts 3/18 @ 12pm ET with the code SCRUTINY. Head to crooked.com/events for more info! --> Washington DC TicketsHere's the full episode in which we called pretty much the entire outcome of the Title X family planning program case in the Fifth CircuitICYMI, Melissa's book with Andrew Weissmann, The Trump Indictments: The Historic Charging Documents with Commentary, hit #1 on the New York Times' Bestseller List! If you haven't gotten your own copy, code STRICT10 will get you 10% off at Bookshop.org 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 legs. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Lippman. And we are actually all in the same place right now,

which basically never happens outside of live shows. Let the rapture begin! Right. So things might get kind of weird. And that might be part of why. Because today we're going to be looking ahead to the cases that the court is going to be hearing during the March sitting. And it's a big one. Ladies and gentlemen, and Sam Alito, buckle up because it's conservative grievance week at the Supreme Court. The court is kicking off the sitting with two First Amendment cases that ask whether the real victims of government coercion today are conservatives with fringe views. So we're going to cover those cases. And then during the second week of the March sitting,

the court is going to be hearing the medication abortion case, which we've talked about a good amount on this podcast. So we're going to be doing some previewing of that case to remind everyone of what is at stake. And we're also going to talk about a recent Fifth Circuit decision restricting access to contraception. And after we preview those cases, we are going to have a court culture segment. So we are going to do something that we've been wanting to do for a long time, which is to take a deeper dive on the death penalty and the shadow docket. And we are also going to do a very quick recap of some of the recent decisions that the court has announced. And we will have a very special announcement at the end of the show. So as they said on Love Actually, do not switch off.

I've been wanting to say that for like five years. I could tell. This is your moment. First up, the previews. So the first week, actually the first day of the March sitting, the Supreme Court is hearing two cases about the role of the First Amendment where the government may be attempting to influence how private parties treat other private parties. The cases are about identifying the limits on the government's ability to effectively coerce or pressure private parties to do things that the government could not directly require the private parties to do. And both cases implicate that principle in a very particular context. So they revolve around

the idea that among various interest groups and identity groups that exist in our society today, the group that the government really has it out for, the group that the government expressly targets, is Republicans with fringe conservative views. And this is actually something that both Melissa and Leah have written about. That is the court's fixation on the idea that conservatives and conservative Christians in particular are the minorities most in need of judicial protection today. Melissa has an article titled Inverting Animus, Masterpiece Cake Shop and the New Minorities in the 2019 edition of the Supreme Court Review. And that's a terrific piece about how the court took animus doctrine, basically the principle that government can't single out or disadvantage certain groups based on animus toward or a bare

desire to harm members of those groups, and applied that principle to protect religious objectors to marriage equality, insisting that when government acts to protect marriage equality and non-discrimination, it may also be evincing animus toward religious objectors to marriage equality. She's followed that up with a forthcoming Duke Law Journal article called Stare Decisis and Remedy that elaborates on the themes in the Supreme Court review piece. And Leah also has a terrific piece, this one in the Michigan Law Review, titled Disparate Discrimination, about how the court's First Amendment cases are built around a theory almost extrapolated from John Hart Ely's Democracy and Distrust that conservatives today face unfair bias and

prejudice and that courts should therefore more closely scrutinize laws that burden conservatives or are inconsistent with their views. And this is also, as we've said before, part of her forthcoming book, Lawless, that'll be out next year. So those articles provide really important framing and context for the two cases that are going to start off the March sitting. And they really kind of put on display, those cases do, the frameworks that the articles provide. So one of those cases that is about all of the ways in which conservatives are actually very beleaguered and very much in need of the court solicitude is called Murthy v. Missouri. The case was filed by private parties who argue that the federal government effectively coerced and strong-armed social media companies to block

plaintiffs' content on social media. And that makes these plaintiffs the modern-day incarnation of famed socialist Eugene Debs, at least in the fever dream mind of Sam Alito. The plaintiffs here are individuals who posted or reposted anti-vax, anti-mask, and other similarly COVID-forward content during the pandemic. The plaintiffs also complain that the federal government's encouragement that the platforms adopt anti-hacked materials policies stifled them from bringing to the fore certain important news stories like Hunter Biden's laptop and other very, very topical stories that would point a light on the vast left-wing conspiracy that has truly taken over America. I just have to say, I think we have a couple cases coming up right now where Sam Alito's questions could be truly next level, whether he's going to be diving into all of the news stories that the lamestream media doesn't want you to hear, or if he's going to be developing another analogy, like it's no longer Eugene Debs. It's that these plaintiffs like

anti-mask mandate policies are basically the modern day equivalent of Martin Luther King's letter from a Birmingham jail. Like I feel like that's going to be on the tip of a letter from a Birmingham laptop. Right. Exactly. Like that's that's where Sam Alito's mind is going to go. So this is going to be better than Black Santa, isn't it? I just think, again, we have a lot of potential coming up. I mean, between the medication abortion case, these cases, the Trump immunity case, I mean, the EMTALA case, Sam Alito is just going to be ready and raring to go. But anyways, this particular case involves two states led by Republicans. They joined the case arguing that the federal government's conduct vis-a-vis the

social media companies injured the states as well. And there are a few discrete legal issues in the case that will shape how the court ultimately rules. One is whether the plaintiffs have standing. That is whether they can show they are likely to be injured by the government conduct they're challenging, which is here the government's interactions with social media companies. Side note, if you've taken constitutional law, you know that it can often be very difficult for plaintiffs to establish standing in claims for injunctive relief because you're basically asking the court to prevent someone from doing something that may not actually happen. It's inherently speculative. And the paradigmatic case for this is called Lyons v. City of Los Angeles, where a victim of police violence sought injunctive relief that would prevent the police from using a dangerous chokehold maneuver going forward into the future. The court in Lyons concluded that the plaintiff didn't have standing because he couldn't show that he was going to actually be put in a chokehold by the

Los Angeles Police Department at some point in the future. The injury that he was trying to prevent hadn't happened, and it was entirely too speculative to assume that it would actually happen to him. But I don't know if the court is going to care about Lyons in this instance, because the facts of this case are just too exciting for this particular court. My strong suspicion is no, they are not going to be governed by that. Again, when you just consider how extensive and pervasive the discrimination against Republicans with unhinged views is, it's a certainty, it is a lock that they are going to experience discrimination in the future.

Again and again. So exactly. Court has to stamp it out before it happens again. We're getting a little bit ahead of ourselves. So that's one issue these cases raise. Should these plaintiffs be in court at all? Another issue that will be big in this case is whether the social media companies effectively became state actors subject to the First Amendment because the government made the companies moderate plaintiffs' content. So another sort of core principle of constitutional law, only state actors, that is the government, are subject to the First Amendment. So private companies' content moderation, the plaintiffs would have to show that the government is causally responsible for the content moderation that they are arguing violates the First Amendment. And then finally, there are questions about the scope of any remedy.

So if some parts of the government acted illegally, how should the court write an injunction to respond to that? So some procedural history is in order here. So let me give a little sketch of how this case got to the court. First, a Louisiana district court concluded that the government was trying to censor conservative speech and issued a sweeping injunction that largely barred communications between the White House and several other government agencies and between government and social media platforms about virtually all content. So again, broad, broad order here. This has enormous consequences, as you might imagine, because lots of parts of the

government, including entities involved in law enforcement, national security, public health, and other functions, routinely communicate with big social media companies. And this district court injunction essentially stopped all of that, blocking it entirely. So pro-free speech, he's going to prevent any speech between the government and private companies. So shockingly or not, the Fifth Circuit mostly upheld the injunction. The court accused the government of a, quote, coordinated campaign that jeopardized a fundamental aspect of American life, end quote, namely being able to see the Hunter Biden laptop story, I guess. I don't know. But the Court of Appeals did limit the

district court's order just to apply, just to apply to the White House, the Surgeon General, the Centers for Disease Control and Prevention, and the Federal Bureau of Investigation, since Republican courts are now really into like defunding and disabling the FBI. Abolition. The new abolition. So interestingly, the Supreme Court actually halted the injunction, even the modified injunction. So they put that injunction on hold, meaning the government actually wasn't barred while the case was pending from doing all the things that the district court and the Fifth Circuit said that it was barred from doing, at least until the Supreme Court

has an opportunity to hear and decide the case. So that's what the court is now going to do. And at that prior stage, we should note that Alito, Thomas and Gorsuch would have actually left the injunction in place because, as always, of course they would. I'm sure they would have liked to revert to the broader district court injunction, but they just wanted to leave in place what the Fifth Circuit had done. Like, not only would we have liked to keep the injunction, we also would like to stone Mark Zuckerberg and all of the other owners of social media companies. Whoever's running the CDC and FBI. As well as the president.

Maybe all of them together. All of them. So the first issue in the case is, as we noted, standing, which we know this court takes very seriously. That was a laugh line. That was a joke. Sorry. Sorry.

So the federal government maintains that these private plaintiffs are complaining about content moderation decisions that are not fairly traceable to the government and that even if they were traceable to the government, these past incidents are not enough to supply grounds for standing. That is that they might be subject to them in the future. As to the states, the federal government argues that they are not injured and have no relevant First Amendment rights anyways here. But it seems like the court is just going to want to get to the merits. So I feel like they will probably steamroll through all of this, like, no law, just vibes. Look, Ma, no hands. No law. Right. I think that's right. So that means that the real action in this case will likely be on the merits,

which will turn on, as we talked about a minute ago, the state action question. So has the government sufficiently injected itself into the platform's content moderation decisions such that the platform's content moderation decisions are attributable to the government? That is that they're basically the government's own speech and its power to persuade, as well as private individuals or the speech of private companies. The federal government's brief argues that, quote, presidents have long used the bully pulpit to shape private conduct, including by criticizing private speech. Theodore Roosevelt, who coined the term bully pulpit, famously lambasted, quote, unquote, muckuck raking journalists, end quote. The brief also lists other examples of presidents who have tried to influence various parts of the media. So, for example, there's discussion of Woodrow Wilson and Ronald Reagan, who said that media executives should, quote, take active steps against drugs or drug use, including through tough reporting on drugs. So this is not unprecedented, the idea of the government having some say in the kinds of media that is disseminated throughout our society.

And the federal government, again, wants to underscore that this is not unusual. In fact, it is business as usual. Yes. And Kate has written a lot about presidential speech, including in her award-winning piece, Beyond the Bully Pulpit, in the Texas Law Review. As the examples Melissa just listed and Kate's writing show, there's a robust tradition of presidents and executive officers using their platforms and positions to call for changes, including to criticize other speech. And the federal government says that's all the government was doing here, exercising its power to persuade and engage in government speech. The government says it did not cross the line into coercion. You know, yes, the federal government worked with companies, but the federal government emphasizes that there weren't any specific inducements or threats.

The government didn't say, for example, take this content down or we'll punish you or anything like that. Instead, says the government, look, there were ongoing conversations about federal regulation of social media, like that was true, and they included hearings on the topic. But plaintiffs basically point to statements that the government made, such as when, quote, during a July 2021 appearance on a cable news program, the White House communications director was asked whether the president was open to amending Section 230 to allow platforms to be sued for spreading false information that causes Americans harm, close quote. So again, the brief continues. She declined to take a position on Section 230, stating we're reviewing that. And the plaintiff suggests that all of this essentially was tantamount to a set of threats

from the federal government that coerced these social media companies into taking down content in ways that injured these plaintiffs. In addition, the federal government was flagging a lot of content for platforms and communicating with the platforms about the kind of content that its agencies determined undermined public health guidelines or election integrity. The federal government says, again, this is entirely consistent with historical practice regarding both public communications by government and interactions between government and these kinds of platforms. But what the plaintiffs are arguing is all of this activity by the federal government essentially reduced to coercion and compulsion. Yeah. To be very clear, the federal government isn't suggesting that it has an unfettered license to communicate with these social media companies.

And indeed, it concedes that significant encouragement might be illegal when it effectively compels a party to act in a certain way. But the government here says that significant encouragement does not exist when the government merely urges a private party to act, even if it does so repeatedly or in strong terms. So a lot of this case really seems like it's going to be a lot of parsing of the record below and examining exactly what the government did here and how often they did it and the terms in which they did it. And I think that just portends absolute disaster because we know how poor some of these justices are at one reading to reading this record below. Like, they just don't care most of the time. Or they're very selective in what record they're interested in and how to characterize it,

right? That we have seen time and time again. There was also just as a matter of doctrine, this sub fight in the case about what cases should determine the legal framework for assessing whether there has been significant encouragement. Everyone agrees that Bantam Books versus Sullivan, which is a 1963 case, is an example of government action that effectively did coerce private action. In that case, a state agency identified certain objectionable publications, asked for cooperation in removing them, said the agency had a duty to recommend prosecution of people who provided objectionable publications, and assured that cooperative action will eliminate the necessity of our recommending prosecution. The government also relies on other state action cases that are less about threats or coercion and more about

state-regulated industries, and the plaintiffs say that those cases aren't at all relevant. So what is going to form the framework that's going to actually resolve the cases is one of the embedded questions that the case presents. There are a number of amicus briefs here supporting the plaintiffs. One comes from Turning Point's Charlie Kirk. There is another from Twitter Files journalist Matt Taibbi. And there are a bunch of briefs that are filed on behalf of neither party. And that basically means that the briefs don't take a position on whether the government acted unlawfully here. But they do ask the court to keep a bunch of stuff in mind while thinking about this case. And those briefs include a brief from NetChoice, one from

the Electronic Frontier Foundation, one from the Knight Institute, and one from the United States Chamber of Commerce. And again, the fact that there are so many briefs on behalf of neither party really underscores that this is a very complicated question. And there are a lot of big questions that this case will implicate. Because there are things that the government can do. And sometimes this kind of government action is referred to as jawboning. I think they really need to get a different way to describe this. but jawboning is what they call it. And this jawboning is basically when government aims to pressure private actors like the platforms here. But at a certain point, some argue that these jawboning tactics cross the line from permissible to impermissible.

Think, for example, about the threats from possible AGs in the Trump administration. So, again, there are lots of questions on both sides of this. No idea how this court is going to deal with them. We do know that they are terribly sympathetic to conservatives who want to spread anti-COVID, anti-mask, anti-vax sentiment. And so that may shape all of this. But here, a lot of this record, at least to us, seems like some of this stuff is kind of okay and fine. It seems pretty innocuous, but I do think this is a little bit like the net choice cases in that there are, it's important that the court not do too, too much because unduly tying the hands of

government when government needs to act in ways that really are critical to the public health and other sort of national interest would be hugely problematic. But unduly empowering government, if we're talking about, like, yes, maybe a second Trump term and what kinds of overreach might be involved there would be, I think, really scary, too. So I just hope that the court is somewhat modest and narrow, whatever it does. I think they're always modest and narrow. Right, because that's, of course, yeah. Okay, I don't think you have to worry. Surely that will happen. Yeah, that's definitely there. Although, actually, there was a little bit of we'll get at the end of the episode, we'll talk about one of the decisions they just issued. They are sometimes that way in internet cases, acknowledging that

they don't actually know how to program their phones. Exactly. Stay back. Yes. Yeah. So on the same day that the court is hearing Murthy, the court is also hearing the case NRA versus Vulo. This is a qualified immunity case. That means the question is not just did the government act unconstitutionally, but whether the government violated clearly established constitutional law. And if there's one thing the Republican justices think is clearly established, it's that one, conservatives are the victims. And two, sometimes accurately describing what conservatives are doing and what their views are is unconstitutional discrimination. Like in this very case, that's a bit of a parody. It does seem like the state officers here may have messed up. But the justices, I think, will take this case to

feed their complex and kind of over-exaggerate a problem relative to its actual nature. So in this case, the NRA claims that the former superintendent of the New York State Department of Financial Services, DFS, violated the First Amendment by coercing insurance companies and financial institutions to terminate their business relationships with the NRA in an effort to suppress the NRA and its former CEO, Wayne LaPierre, was recently found liable in New York for corruption and for misappropriating the organization's funds. A jury found that LaPierre caused over $5.4 million in monetary harm to the NRA. And he's already paid over $1 million back to the organization. But jurors actually ordered LaPierre to pay $4.35 million in restitution. So again, this is all lurking in the background of this case. Right. So that's kind of background slash atmospherics. But in terms of what's actually at issue in this case, the case involves investigations into insurance policies that

the NRA promoted as part of an affinity insurance program, which just meant insurance that it encouraged its members to use. So DFS concluded that one of these insurance policies, called CarryGuard, actually violated New York law. And DFS entered into consent decrees based on insurance law violations associated with CarryGuard and other NRA-endorsed programs with other companies. And in the consent decrees, three insurance companies admitted that they had provided some unlawful NRA-endorsed insurance programs and agreed to no longer provide any NRA-endorsed insurance programs, including lawful ones, to New York residents. The companies also agreed to pay fines of $7 million in one case and $1 million and $5 million in two other cases. And the NRA also reached a settlement

with DFS. And those agreements, that is the consent decrees, are actually part of the plaintiff's case arguing that the state government bullied private businesses into not doing business with with DFS. And those agreements, that is the consent decrees, are actually part of the plaintiff's case arguing that the state government bullied private businesses into not doing business with the NRA. And to me, that seems like a big stretch. It can't possibly be the basis for a constitutional violation. The fact that the government sanctioned parties who concede that they violated the law, there's always going to be some prophylactic measures on top of a consent decree or settlement. Leah, enforcement can sometimes tip into discrimination. Yeah.

I think you have to acknowledge that. Obviously. And, you know, that is the lesson of Masterpiece Cake Shop, of 303 Creative, and all of the COVID cases. So having said that about the consent decrees, you know, there are other parts of the case where at least I think the NRA has a point. And reading the briefs, I really felt like this was the onion meme, like when the worst person you know makes a good point. Or Neil Gorsuch. Stop clock. Write twice a day. Yes, exactly. Exactly. Any of those we'll do, we'll come back to our little stop clock, Neil Gorsuch, at the end when we discuss Pulsifer. But just to take an example of where I think the NRA has a point, you know, they say after the shooting at Marjory Stoneman Douglas High School in Parkland, Florida, that DFS communicated to banks and insurers that they would face regulatory action if they failed to terminate their relationships with the NRA. And they have is an allegation in their complaint that DFS presented their views on gun control and said they discussed an array of technical regulatory infractions that these companies might be engaged in and allegedly made it clear that DFS was less interested in pursuing those infractions so long as the business stopped providing insurance to gun groups.

And that seems pretty questionable. That's pretty close to saying, well, look the other way on your legal violations if you stop doing business with this organization whose policies I object to. So that's what I had in mind. So the complaint also identifies as problematic some things that may not actually be that problematic. So for example, there is a guidance letter that points to the social backlash against organizations that promote guns and says that these concerns can no longer be ignored and that society as a whole has a responsibility to act. And the guidance letter approvingly cited the recent actions of a number of financial institutions that severed their ties with the NRA as an example of businesses

fulfilling their corporate social responsibility. And it then went on to encourage regulated entities to continue evaluating and managing their risks, including reputational risks that may arise from their dealings with the NRA or similar gun promotion organizations, and to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt action to manage these risks and promote public health and safety. And again, that kind of guidance letter seems like the sort of plaintiff, and that's the NRA here, alleged in the complaint as true. And you ask, if that's all true, has the plaintiff shown that it experienced a constitutional violation that is clearly established? And as we just talked about, some of the things that are alleged seem actually quite troubling and some seem much less significant. But it does seem that at least based on the first allegation, which concerns a state official saying, like, literally, we won't seek penalties against you if you stop doing business with the

NRA, which I don't like, that seems like maybe a plausible basis for the claim. And then there are other parts of the complaint that just seem like they can't be like the fact that regulators imposed penalties on companies that were violating the law, like that can't possibly be a constitutional violation, let alone a violation of clearly established law. And we should also say that the damages the NRA received are far from clear, like its difficulty in finding insurance and other companies to deal with it could have something to do maybe not just with this sort of state conduct, but potentially repeated violations of the law, which we alluded to at the beginning of this discussion. All of the above. But that is not the sort of thing that is typically going to

be litigated that closely at the motion to dismiss stage. So I doubt that's going to be super relevant. Yes. And the NRA in this case is actually being represented by the ACLU with David Cole, the head of the ACLU, expected to argue the case. The case also has some amicus briefs in support of neither party as a previous case did. And that includes one from the federal government who has asked to participate in this argument. And the federal government's brief, while in support of neither party, I think is pretty friendly to the NRA. It says the complaint, as we were suggesting, plausibly states a First Amendment claim, at least based on some allegations, but not others.

And a part of me wondered whether the federal government filed this brief in order to bolster its position in Murthy to say, look, we recognize governments can't improperly encourage or significantly induce private action, and we can identify that when it actually happens, but we didn't do that in our own case. Sam Alito is going to be like, so you're willing to throw New York under the bus, but you're defending what your officials did. How convenient, isn't it? Again, he is just going to be all over so many of these cases, can't wait. These two and so many more. Yeah. That's just the first day of the sitting, so. First day.

Welcome back. How was your spring break? Glad you got to relax. There's more, folks. So while the court has some other important cases it's hearing in that first week of the March sitting, we wanted to be sure to flag one case that will be heard in the second week of the versus FDA. This is the case filed by the Organization for Anti-Abortion Doctors that initially sought to revoke the FDA's approval of mifepristone, one of the drugs used in the two-drug medication abortion protocol.

The Supreme Court did not grant the cross-petition seeking review of the issues related to the FDA's initial approval of mifepristone. So that issue, whether mifepristone should be declared an unauthorized drug, is mercifully not before the court. Instead, the court is reviewing only the Fifth Circuit's reinstatement of a bunch of restrictions on mifepristone that the FDA deemed medically unwarranted, including restrictions on telemedicine, in-person pickup, the timing of mifepristone use, i.e., how late in pregnancy that it can be used, and others. And again, if you have been following this podcast for a while, we covered some of the loosening of these restrictions during the pandemic, like right after the Biden administration came into being.

So these are all sort of Biden-era policies. Back to the case. Before the Supreme Court could or should review those claims that are now before it, it would have to find, again, against all evidence and reason, that the doctors in this case face a risk of injury because the FDA deemed those restrictions unsound. That's essentially a standing question. So basically, were the FDA's specific protocols for how mifepristone should be used somehow increasing the risks that these doctors would be called upon to treat patients for complications related to mifepristone? How were they injured by these restrictions? So that's kind of an obstacle, but don't worry, we can surpass that obstacle very easily. Honestly, I think if the court does the right thing here, they are going to say the plaintiffs

actually don't have standing because I just think this theory is so ridiculous. It rests on the idea that there are complication rates from mifepristone that just do not exist. It rests on the idea that the FDA's precise restrictions on mifepristone that just do not exist. It rests on the idea that the FDA's precise restrictions on mifepristone that the plaintiffs are challenging are what injures them. And the idea that there are these complication rates from mifepristone have been debunked. You recall that two of the studies the district court relied on in this case have since been retracted. And the doctors would have to show that the specific protocols that are challenging the dosage and timing and telemedicine provisions are what injures them. And I just don't even think that Kate Middleton's Photoshop skills could fudge

those statistics. I feel so seen. I know. I paused. I paused. I just wanted to let that sink in. Time out for a minute. Yeah. What a week this has been for me. And by what a week, I want to note that Melissa is not primarily referring to the fact that her book was named a New York Times bestseller, number one bestseller. But the fact that the mainstream media got hooked onto all of the Kate Middleton theories that Melissa has been immersed in for like four years. I mean, it's so gratifying. I'm sure. Even a worm must turn at last. I'm so gratified. And also, Meghan Markle

came back to Instagram. American Riviera Orchard. I actually haven't looked at that, but I did watch the little excerpt that you could get from the South by Southwest appearance that she made. Yeah, with Aaron Haynes. And Katie Couric, friend of the pod. And Brooke Shields was on that stage too.

I don't know if she's a friend, but I bet she is. She could be. She has friend potential. But she was glorious on stage. Meghan Markle came back with American Riviera Orchard. And I'm here for it. I'm signed up. I'm ready to get an email from Meghan.

What is it? I don't care what it is. I don't know what it is and I don't care. Like a lifestyle brand. Okay. Like, I don't know what it is. Maybe we should get back to the Mephepristone. Yeah. I like this detour, but I guess we should get back to the Mephepristone. Yeah.

I like this detour, but I guess we should get back to Mephepristone. All right. Apologies for that frolic, listeners. Now, obviously, we are going to debrief in depth this oral argument when it actually happens. we wanted to highlight a few notable amicus briefs that underscore what a big deal this case is for so many aggrieved conservatives and to underscore for all of you the absolutely enormous stakes of the upcoming election for both reproductive justice and the courts that are going to be fielding huge numbers of reproductive rights cases over the next couple of years. So there is an amicus brief for the American Center for Law and Justice.

And don't let that name fool you into thinking that it is actually concerned with law and justice. It is led and represented by Jay Sekulow. And in this brief, they argue that the Comstock Act prohibits not just the distribution of medication abortion, but distributing anything that could be used for abortion. And just to refresh, the Comstock Act is an 1873 law that prohibits the distribution in interstate commerce of articles intended for immoral purposes. And although the law is no longer enforced, it's never actually been repealed. It's basically lying in wait like a serial killer or a zombie to be resuscitated by some enterprising Republican president. And it can be used to do lots of things like stop the transmission in interstate commerce of medication abortion or any kind of implement that might be used in a surgical abortion. Yeah. And so that's in some ways a big part of this brief as well, because the brief is telegraphing where this is going. It urges the resuscitation and interpretation of the law.

That would mean not just a ban on medication abortion, but given that medical equipment is made and shipped between the states, a ban on all abortions nationwide. So it specifically notes in the brief that the restrictions in the brief's words apply to devices or equipment in addition to drugs. There is also an amicus brief filed by 145 Republican representatives in Congress that also argues that the Comstock Act prohibits distribution of medication abortion. So that is 145 sitting Congress people, all Republicans, who are behind the idea that federal law can be used to criminally prosecute distributors of medication abortion. So just to spell this out really clearly, what this means is that if you live in a blue state

and in the post-Dobbs era, you feel like things are crazy elsewhere, but your repo rights are safe because the laws in your state protect your ability to obtain an abortion should you need one. That's actually not necessarily going to be the case for long, because if the Republicans gain control of the White House and both houses of Congress, there will almost certainly be a nationwide ban on abortion. And that does not need to mean a new law gets passed that both cows of Congress approve and the president signs. It could mean they just decide to revive enforcement of the Comstock Act in a way that makes medication abortion impossible no matter how blue your state, like everywhere. They don't even need to win back Congress to do that. All they need is to win the presidency and then they can just deploy this

newly constituted Department of Justice to start enforcing the Comstock Act again. Full outright ban if they have a triumvirate. And even if they just have the executive branch, they could start enforcing the Comstock Act as these briefs contemplate. So Congress not required at all to make this essentially zombie law spring back to life and do the work of making it impossible to obtain Mifepristone and to have a legal medication abortion anywhere in the United States. And all of this is important because this Comstock issue is not even before the court, since the court isn't reviewing whether the FDA's initial approval violated federal law. And yet you still have this many Republican representatives

signaling their support for an abortion ban. And so if you want a big bat signal about the stakes of the 2024 election, this is it. This is what they're saying they want to do. So here's a question. There are a lot of implements that are used in surgical abortion that are also used in sort of standard gynecological care, like pap smears, for example, that use like a speculum. How are they going to deal with the shipment and interstate commerce of those implements for just standard? I think pathomeres are probably immoral too. Exactly. No reproductive health care for women. 2024, hashtag vote Republican. I mean, look, if it could be used for multiple purposes, I don't see why a Trump administration AG

wouldn't go to court and say, well, this implement could be used for this purpose. And we have reason to suspect that this person was going to use it. And so it's going to enforce the law aggressively, and that will make it more difficult to actually distribute health care services and items. That was grim. Thank you. Thank you. My lady parts, thank you. Another highlight in the Amici briefing is an amicus brief filed on behalf of Students for Life for America. This brief argues that in approving mifepristone in the first instance, the FDA violated, now wait for it, the Endangered Species Act by not considering how the approval of Mifepristone affected endangered species back in 2000 when the drug was first approved. The brief says, quote, The current list of endangered species recognized by the services the approval of Mifepristone, but the extent is unknown due to the FDA's failure to consult as required by Section 7 of the Endangered Species Act. Now, as far as the species that might possibly be affected, the brief lists the following.

The red wolf, Kemp's ridley sea turtle, the leopard darterfish, the California condor, the whooping crane, and the sockeye salmon. There are exhibits of each of these species in the brief, should you choose to pull it up, and search for the potential environmental impact that the approval of Mifepristone could possibly have had. It's eluded me so far, but maybe I'm not a close enough reader. Save the sockeye salmon and deprive women of reproductive health care. Right. Like that's the country song. Right.

Like environmental law is everywhere. This brief literally reads like a salt burn fever dream, like murder on the dance floor. I loved it. I loved it. The good news is that it does seem as though Republicans or at least group, has finally found environmental regulation that they are interested in enforcing. So I guess that's a silver lining. We should all, you know. You really dig deep. Right.

Because it is only when convenient to stop women from controlling their bodies. But at least under those circumstances, environmental law comes to the fore. So this case is going to be argued the second week, and we will focus on it more when we do the recap. But we want to link what is now unfolding in the medication abortion case to a recent decision from the Fifth Circuit in a case we covered in a special segment after the argument before the Fifth Circuit. And that is the case about whether the Title 10 family planning program can provide access to funding for contraception to minors whose parents oppose contraception. So we're going to play our recap of that argument in the Fifth Circuit because it was a scene. It was a big scene. One case the Fifth Circuit heard oral argument in was the contraception case, DeAnda v. Becerra. This is a case we have previously talked about. It's Judge Kaczmarek's contraception case in which the court said that

the Title X program was unconstitutional because it violated parents' rights, and particularly a regulation that allows minors access to contraception. When the government's lawyer pointed out that the parent challenging the program didn't identify his daughter's age, the judge suggested that it doesn't matter. Before they're 18, more than likely, they're going to be old enough and in a position to get pregnant. They're also going to be in a position where people are wanting to have sex with them. Okay. Whoa.

Okay. Very, very normal. Not at all. And speaking of not very normal, we also got more than one invocation of Robert Bork, since Robert Bork is apparently treated as governing legal authority in the Fifth Circuit. So Robert Bork was Ronald Reagan's nominee for the Supreme Court. He was a judge on the DC Circuit and former Solicitor General during the Nixon administration, during which he became acting Attorney General after other officials refused to fire the special prosecutor investigating

Nixon. But Bork was like, sure, I'll do it. Bork had previously been an academic where he had criticized, among other things, Roe versus Wade and the Supreme Court's decision in Griswold protecting the right to contraception and Marbury versus Madison. And the Senate decided not to confirm him. And this is the guy the Fifth Circuit is invoking. It really is a sign of the times. You have conservative jurists disavowing Justice Scalia and embracing Robert Bork. I think that's actually a hugely important data point. It's like the fantasy SCOTUS, like the one where Robert Bork was chief justice. Yeah. I think that's the court the Fifth Circuit thinks it lives under.

And they're just deciding cases as though that's the state of the world. Okay, so we also wanted to play two clips of some of the judges summarizing the claim that Judge Kaczmarek ruled for and that the Fifth Circuit is definitely open to ruling for. So here's one. It's my understanding periods can start pretty young. Not five, but some even I think eight or nine-year-olds get their periods. So it's not 15. Ten is pretty common. So it is not that old that these young girls need to be to be old enough to get pregnant should they have this interaction with this other guy that they're trying to, again, get medicine, get advice, deal with the fact that

they had the sex and address that, whatever it is. And he's trying to avoid that pathway. Because once she's gone and had sex with someone, she's not a virgin when she gets married. And again, I'm not myself judging that. I'm simply saying he would on his religion, and I respect that. And here's another. If she did receive contraceptives without my knowledge, that interferes in a dramatic way with my ability to parent because the child now has a means of engaging in sexual activity and avoiding

certain consequences of it. And that. Are you there, God? It's me, the fifth circuit. Like, why don't why doesn't anyone know how menstruation works? Also, like, why don't they know how consent works? Like if you are eight or nine, you cannot legally consent to sex. If you are a minor, right. In some cases, you cannot like or even if you're legally consent to sex. If you are a minor, right, in some cases, you cannot. Or even if you're a woman who just has sex, you are not or shouldn't be thought of as just being like, okay, and therefore you can become pregnant. That is not just accepting the consequence of having sex. I just can't get over just sort of the general like, I heard a thing about periods once. I mean, that's the part. I'm just like, what? Just like, go ask a physician. Like, go to, like, but this is the

thing. They don't trust experts. I think those clips show that we're basically always right. Correct. Soothsayers, even. Soothsayers, even. So guess what, listeners? We got a decision in the case. And surprise, the ruling, as we predicted, was for the challenger. And again, surprise, the Fifth Circuit's decision invokes Robert Bork in the process. We really did call it. Yes. We sure did. Yeah.

The Fifth Circuit said that Title X, the federal family planning program, does not prevent Texas from enforcing a law that gives parents the right to consent to their children under 18 obtaining contraception. This effectively allows parents the ability to refuse and to block efforts to provide contraception. Now, to be very clear, the case, which is called DeAnda v. Becerra, involves a question of federal preemption. That is, whether the law that authorizes Title X, the federal family planning program, preempts a Texas state law that would require minors to secure parental consent for contraception. And it's a very similar issue as that presented in the Idaho-Emtala case that the court is going to hear in April. So all to say that we're going to be hearing a lot about the conflict between federal laws and batshit crazy state laws going forward. Yes? Looking forward.

Yes. But for today, we wanted to highlight some of the Fifth Circuit's reasoning in this decision, which goes beyond contraception, as the oral argument questions that we were just talking about suggested that the court would. So the Fifth Circuit reasoned, quote, the parent alleges injuries to his religious exercise and parental rights that have perennially been honored by American courts. For example, he claims the secretary's policy burdens his right to exercise his Christian belief that his minor children should abstain from premarital sex. Such rights are, as the Supreme Court has explained, part of our enduring American tradition. The right to chastity.

Yes. Deeply rooted. The opinion, as expected, and as we noted, cites Robert Bork. I'll quote that here. Judge Bork's opinion sheds more light on the issue before us. And the opinion, I don't think we've said this, was written by Stuart Kyle Duncan, who is a Trump appointee. And a fan of Stanford Law School.

Yes, huge fan. Big fan. Yeah, and they have him. And a fan of on abortions. It is not just abortion. It is contraception. There are challenging programs that provide access to contraception, and their reasoning suggests it's not just about contraception. It is about premarital sex. The Fifth Circuit modified some parts of the Kaczmarek District Court opinion. The Kaczmarek District Court opinion had vacated the rule under the APA, even though the plaintiffs had not sought review under the APA. It was just completely wild. But the Fifth Circuit, what they did is they held that

this Texas law isn't preempted, essentially preserving the effect of the opinion in Texas and still moving the law to the right. And I just think this is the exact same dynamic as the Miffa Pristone case and so many others, cases filed in Casimirk District Court in order to get him to do something totally wild. He does it. The Fifth Circuit modifies it slightly in a way that is still insane, moderating the insanity while still being insane, and then potentially teeing it up for the Supreme Court. That's the playbook. Moderating insanity while still being insane is like the greatest t-shirt ever. I'm not sure. I want to walk around with that plastered on my shirt. I like it.

I think you should try it. Stuart Calduncan might like to. That's true. I love that you just called it finding a chasmeric court. Like that's now a thing. It is. Like a kangaroo court. Right.

It's now a legal practice among the conservative legal movement. Well, not anymore. True. We'll get there. We'll get there. Before we do, we'll just mention that during the March sitting, the court is also going to be hearing some important cases about the rules of evidence and the right to a jury trial. We're not going to cover those cases in this

preview, but we will spend time talking about them after the March sitting when we sit down to recap all of those cases. And as we were just alluding to before we get to our main court culture segment, we have a development that's related to the procedural history of both the medication abortion case and Title X contraception case. So as we were just saying, both cases were filed in a particular division in the Southern District of Texas, all to ensure that they would be heard by the country's leading scientists and now foremost abstinence advocate, Judge Matthew Kazmirik. So to combat this kind of judge shopping, the Judicial Conference, which is the national policymaking body for the federal courts, announced a policy change. They didn't release the actual policy, but their announcement says the new policy is that in cases seeking injunctions and declarations, the cases will be assigned on a district basis.

That's eliminating the opportunity to handpick your judge by filing a complaint in a single judge division. So we wanted to give a hat tip to law professor with a Twitter account and friend of the pod, Steve Ladek, who has really been on the forefront of highlighting this issue and drawing attention to how it is really difficult to square it with the rule of law. And Steve, for those of you who may not have heard, is moving to Georgetown Law School in the fall. All Texas courts breathe a sigh of relief. This guy is out of here. Is he going to be less breathing down our necks?

And I think the answer is no, sir. He's just going to be doing it. Also, though, maybe when it comes to Amarillo, his work is done so he can decamp. That's true. I won, bitches. Vladek out. Commander out. All right.

I'm also going to note that this has got to be a real blow to the Amarillo Chamber of Commerce and Tourism Board because there were so many litigants flocking to Amarillo. There were organizations incorporating in Amarillo. Like the Alliance for Hippocratic Medicine. Exactly. Alliance for Hippocratic Medicine. Again, Amarillo really had a boom because of the Kaczmarek court, like people booking hotel rooms, eating at Amarillo restaurants and cafes, all for the chance to have Judge Matthew Kaczmarek confirm their legal views. And I really hope this does not spell economic doom for Amarillo. Maybe Chip and Joanna Gaines can be called in to revitalize the downtown area. You know, we'll see. We'll see. All right. Just to be very clear, it's not just the Amarillo Chamber of Commerce that is put out by this development.

You know who else is also hopping mad that the litigants can no longer pick their judges and assure their preferred outcome by filing in a particular court? Well, two of the most esteemed judges of the most esteemed Fifth Circuit are very, very unhappy about this new policy change. Any guesses, ladies, as to who the two aggrieved judges are? I mean, one, I think... Is there a library? Is there a portrait? Right, exactly. Was this person sworn in at Harlan Crowe's library? Tell her what she's won. You're right, Leah. Jim Ho has communicated his happiness about this particular development by, wait for it, giving a statement to a volic conspiracy blogger about his discontent, as one does. Do you want to wager a guess, Kate, as to who the second one was?

Well, it's not Duncan, right? Very good guess. Like always, a good wager. And Leah, do you want to go two for O? You know, it is the judge that I think walked so Justice Rebecca Bradley could run, and that is Judge Edith Jones of the Fifth Circuit. Absolutely correct. Although I wonder, has anyone asked Bradley for her take on this? Because she's probably mad about it, too. It has nothing to do with her court. I'm sure she'd be happy to post something on Volokh, honestly. She also wants Judge Kasper to be able to set nationwide health care policies. So I can only I can only assume. Vala Conspiracy, for those of you who might not know, is fan fiction.

Fan fiction. It is a blog that is run by several libertarian and conservative law professors that has been at it for a while. All right, so we are now going to shift to some court culture. And the first thing we wanted to do is not a lighthearted court culture topic. We actually wanted to take some time to discuss developments on the court's death penalty docket. And we have been thinking about doing this segment for a while, but given the firehose of Trump-related and just general SCOTUS news, we haven't had an episode with sufficient time to dig in. And so we're going to try to do that now. So regular listeners know that the court continues to use the shadow

docket to clear the way for executions. This happened in January in Smith v. Hamm when the court denied a stay of execution to Kenneth Smith. Smith had been convicted of murder, but the jury in his case voted 11 to 1 to sentence him to life imprisonment as opposed to to sentence him to death. But the judge overrode the jury's recommendation and imposed a death sentence. And after that, the state set an execution date and Smith challenged the execution protocol, that is the cocktail of drugs the state was going to use to kill him. And he sought a stay of execution, which the U.S. Supreme Court denied. And what followed was horrific. The state botched the execution.

At the time, the state was experimenting with legal injection protocols, which resulted in three failed executions in a row over five months. And Smith had specifically sought a stay on the ground that the state's new protocol was untested and didn't have a reliable method. And he was right. So that was last time the state tried to execute Smith and failed. The next time, the state scheduled an execution date and announced that they would try to kill Smith with nitrogen gas. And Smith once again sought to challenge the state's method of execution and sought a stay of execution, i.e. to hold off on the execution until he could raise his challenge to the execution protocol and a court could review it. And the United States Supreme Court once again denied that stay. As Justice Sotomayor wrote in her dissent from the court's denial of Smith's request for a stay, quote, the details are hazy because Alabama released its heavily redacted protocol under five months ago, close quote. And when the state went to carry out

its execution, according to CNN, Smith appeared conscious for several minutes into the execution, and for two minutes after that, he shook, he writhed on a gurney. The nitrogen gas ran for 15 minutes. Smith struggled against the restraints. He could be heard gasping for breath. This cycle repeated itself once again in the case of Thomas Creech, who challenged Idaho's method of execution protocol. Creech requested a stay, which the court denied. And then at the end of February, Idaho failed in its attempt to execute Thomas Creech. They failed eight times to establish an IV line, and Creech's cert petition had asked the court to take his case because Idaho had, quote, one of the, if not the most stringent execution secrecy regimes in the country, end quote, and thereby he didn't actually know how he was going to be executed.

And we wanted to connect what the court is doing in these capital cases to how at least some justices view what is happening in death penalty litigation more broadly. So quick overview of developments over the last decade and a half in this area. So the first of these was Bays v. Reese, a 2008 case in which the court rejected a constitutional challenge to a method of execution, sort of a particular lethal injection protocol. Then in 2015, in Glossop v. Gross, that's Glossop as in Richard Glossop, who may very well be innocent and whose case the Supreme Court is actually going to hear next term. But a previous case involving Mr. Glossop was before the court in 2015. And there the court said that not only if you're going to successfully challenge a method of execution, not only do you have to identify a substantial risk of pain, but you also have to show a reasonable alternative method of execution with a lower risk of pain. So placing an enormous and almost impossible to satisfy burden on individuals challenging the constitutionality of methods of execution.

And then in Bucklew v. Precythe in 2019, the court made it even harder for litigants to satisfy the Eighth Amendment test that they had initially in Bays and then later in Glossop developed. And part of what is going on in the background of all of these cases is a movement for death penalty abolition. But it seems in the court's eyes, that's like a movement for bad abolition, not good abolition, like the court thinks and Murphy and maybe NRA versus Vulo. But as part of that movement, you know, people have been pressing companies not to allow their drugs to be used in executions. And some companies have refused to sell drugs for use in execution. You know, some might call that an aspect of popular democracy, movements, lobbying and whatnot. But that's not how this court has viewed it, or at least that's not how all of the

justices on the court have viewed it. Surprising no one, right? Sam Alito has been at the forefront of this deep skepticism about the legitimacy of efforts to engage in advocacy that is opposed to the death penalty. So we wanted to play a clip from the oral argument in Glossop v. Gross. I was in the courtroom for this argument. And Alito in particular, I mean, I remember just being so shocked that he was suggesting that this backstory was relevant to the court's decision in the Glossop case. So I'm not going to preview it anymore. Let's just play the clip here. Yeah, I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions, there are jurisdictions in this country,

there are jurisdictions abroad that allow assisted suicide. And I assume that those are carried out with little if any pain. Oklahoma and other states could carry out executions painlessly. Now, this court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty.

But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain. And so the states are reduced to using drugs like this one, which give rise to disputes about whether, in fact, every possibility of pain is eliminated. Now, what is your response to that? He is basically saying, I think people who are opposed to the death penalty are fighting dirty. So I'm going to fight back here from my position on the court. And the justices, or at least some of them, you know, just come out and say they

should take this into account. Their view of the death penalty abolition is too successful or somehow untoward in their account in how they treat capital cases. And it's not just Sam Alito. Here is Justice Scalia expressing a similar sentiment. I guess I would be more inclined to find that it was intolerable if there was even some doubt about this drug when there was a perfectly safe other drug available. But the states have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement, putting pressure on the companies that manufacture them

so that the states cannot obtain those two other drugs. And now you want to come before the court and say, well, this third drug is not 100 percent sure. The reason it isn't 100 percent sure is because the abolitionists have rendered it impossible to get the 100 percent sure drugs. And you think we should not view that as relevant to the decision that you're putting before us? And it's not just Scalia and Alito. Here is Justice Kennedy. That doesn't answer Justice Scalia's and Justice Alito's question. The question is, what bearing, if any, should we put on the fact that there is a method, but that it's not available because of opposition to the death penalty.

What relevance does that have? None? So again, we just want to make sure that people were aware that this is something that justices want to say matters to their analysis of death penalty and method of execution claims, that it's somehow the fault of the death penalty abolition movement, that companies don't want their drugs to be used for executions and therefore the state must use crueler methods that are more likely to cause pain and subject people to torture. That seems to be the narrative. That is the fault of abolitionists that individuals are suffering in the way that

we just described in states that are continuing to move forward with executions. It's definitely not the fault of the states executing them. And I think this is linked to the conservative grievance narrative that we identified in the first cases from this sitting, because it presupposes that as groups successfully organize to block the death penalty and persuade companies not to facilitate it, it must be that those groups are doing something untoward and unfair that courts must counterbalance to allow states to pursue their preferred agenda. And the court's insistence that conservatives are the real true victims here, including of government coercion, is all the more galling

when you think about some of the cases the court could hear but has not yet decided to. One of those we wanted to highlight involves a cert petition from Brenda Andrew. And we don't usually cover cert petitions, but we do occasionally make exceptions. And we're doing so here for reasons that will probably become apparent when we say what's happening in this case. So Brenda Andrew was convicted and sentenced to death and is seeking a writ of habeas corpus based on several problems with her trial. Andrew was convicted of murdering her husband, who she was separated from at the time of the murder. She was the person who called 911 to report the shooting and was shot herself. At trial, the prosecution called to the stand Andrew's former sexual partners and asked them details about their sexual relationships,

even though she hadn't seen one of them in four years. In the prosecution's closing argument, he read from the murder victim's journal describing a sexual relationship his wife, Brenda Andrew, had had in college. They elicited testimony about what she wore, including about her, quote, short skirt, low-cut tops, just sexy outfits. The prosecution directly questioned a witness about her clothing, and the witness said, Ms. Andrew wasn't wearing attire that I would consider appropriate, end quote. So they essentially secured a jury verdict by playing to sexist stereotypes, which is a constitutional problem on top of all the others in the trial. Like she was brought into police questioning while still

in a hospital gown after being shot and the state said she wasn't in custody, just to name one. I mean, Brenda Andrew was literally convicted and sentenced based on shocking instances of gender bias and sex shame potentially to death. And, you know, since as we are aware, Sam Alito is very concerned about unconstitutional discrimination in juries specifically, we're sure he will be inclined to hear Brenda Andrews' case. But to my mind, this case reads to me kind of like Buck v. Davis, but for sex or gender discrimination, Buck v. Davis was the horrific Texas Capitol case in which Texas put on expert witnesses who testified that Black defendants were more

likely to commit crimes in the future and were more dangerous. And the court said, you can't engage in that racist stereotyping and granted habeas petitions, even though the court is not inclined to do so. And this case, I think, is extremely important and part of, again, like a broader pattern of state violence to reinforce gender hierarchies to the detriment of women. And if you want to learn more about Brenda's case, you can go to savebrendaandrew.org. Have they conferenced the petition yet? No. So it's going to be up for its first- I think it'll be conferenced this week. This week. Okay. Yeah. So just like an incredibly important case, the justices should take it up.

And- I just want to say one thing. Part of the horrific thing about the distribution of the current court is the Democratic appointees don't actually have the authority to put a case on the court's agenda. If there were four of them, they could vote to grant and say, of course, this case merits the court's attention, but they is related for sure. And maybe this is one where he would see the light. I don't know, but he certainly should. But yeah, the difference between three and four is not just in outcomes in cases that are being argued, but in the ability to get headed back. That's another death penalty case that we wanted to mention. That's the case of Arely Escobar, who was convicted and sentenced to death on the basis of DNA evidence that the prosecution concedes was false. So the testing was done at a lab that had such serious deficiencies that the state of Texas ended up closing the lab. And the state court found that the evidence used to convict him was false and misleading and unreliable. And the prosecutor's office conceded that the petition should be granted, but the Texas Court of Criminal Appeals refused.

The Supreme Court vacated the decision and told the Texas Court of Criminal Appeals to take another look, and that was back in January of 2023. Well, the Texas CCA took another look and decided, yeah, the state of Texas should kill someone. It convicted on the basis of evidence it now concedes was false and concedes involved a constitutional error. Very, very, very legal and legitimate. Ladies and gentlemen, just want to make clear to you, the courts will always save us. Indeed. Indeed. You can always count on them. Yeah. The Texas CCA is more extreme on rights of criminal defendants than the Texas prosecutor's office.

So no other words. So the Texas CCA said the defendant, quote, had not shown certain evidence to be false and other evidence that has been shown to be false is not material, end quote. They literally say the state's articulated special concern about the possibility of contamination does not support the false evidence claim. And so this case seems like it is teed up to go back to the U.S. Supreme Court. Unless you think it's just the state courts in Texas, they're absolutely off the rails. It's also the federal courts who are staying busy, vindicating rights not, let's talk about a Texas district court and indeed one specific Texas district judge. And it's not Matthew Kazmieric. It's not Matthew Kazmieric.

The other thing I want to say is that it's also not the good Judge Pittman. This is confusing. And there are two Judge Pittmans. There's Robert Pittman. Yeah. Who is good. Who is delightful. He's great.

We just want to say I don't want any of our listeners to be confused about which Judge Pittman is responsible for what Melissa is about to say. It is the bad Judge Pittman. Yes. Sorry, Melissa. Exactly. The difference between the Duchess of Sussex and the Duchess of something else, right? Like Judge Pittman, the good. Judge Pittman, the not so great. Judge Dale Ho. Judge Jim Ho. Exactly. exactly. Okay, so the Judge Pittman to whom we are referring is Judge Mark Pittman. Judge Mark Pittman invalidated the Department of Commerce's Minority Business Development Agency. And that agency has actually been around for 55 years. It assists minority-owned businesses in accessing capital and government contracts. And interestingly, noted liberal swish Richard Milhouse Nixon

founded the agency. And in the opinion in which he invalidates this program, Judge Pittman writes, if courts mean what they say when they ascribe supreme importance to constitutional rights, the federal government may not flagrantly violate such rights with impunity. The MBDA has done so for years. Time's up. I don't think that's what time's up was meant for. But, you know, an interesting poll, Judge Pittman. We can always repurpose the rhetoric of the left. This is, as Melissa repeatedly refers to, the woke warriors, right? The inversion of all of these tropes and repurpose for regressive ends. So the MBDA statute directs the agency to serve

socially or economically disadvantaged individuals, which is statute and regulations defined to include certain groups, including Black people, Latinos, Native Americans, Native Hawaiians, and more. And now the agency will help everyone because all resumes matter. All businesses. Hashtag all small businesses mattering, federal agencies. So yeah. And I mean, this is when Students for Fair Admissions came down. I think, you know, there was a lot of debate about how expansive the reasoning and the opinion was is that all of that is constitutionally defective, fatally so. And so it's just a matter of sort of how exactly and when all of these chips fall. But that, I think, is the path that we are on, at least if this opinion is any indication. So Pittman, it's, I guess, not surprising,

is the one taking us down this path. He's a Trump appointee. And you may remember him from such hits as comparing President Biden's student debt relief program to, wait for it, the Nuremberg laws in Nazi Germany. That's right. That happened in an oral argument in the initial challenge to the loan relief program. And so that is, again, the Pittman, not to be confused with the good Pittman, responsible for this really expansive race-blind vision of all state, federal, local laws. I'm really going to need them to stop doing these Holocaust comparisons. That would also increase my utils, I would say.

Okay. In addition to Judge Mark Pittman, we also wanted to situate recent reporting about the fallout from the Supreme Court's work to systematically dismantle the Voting Rights Act. So very recently, the Brennan Center, which is a nonpartisan think tank housed at NYU, full disclosure, I'm a board member, put together a very important report on the aftermath of the Supreme Court's decision in 2013's Shelby County v. Holder. The report focused on racial disparities and voter turnout in the wake of Shelby County v. Holder. The report focused on racial disparities in voter turnout in the wake of Shelby County v. Holder. And again, that decision struck down the preclearance formula of the VRA. The report found that since Shelby County v. Holder, the gap in minority voter turnout has

grown and is growing most quickly in parts of the country that were previously covered under the preclearance regime of the Voting Rights Act, which was suspended by the court in Shelby County. The report continues to say that, quote, while the gap is growing virtually everywhere, Shelby County had an independent causal impact in regions that were formerly covered under Section 5. By 2022, the black-white turnout gap in these regions was about five percentage points greater than it would have been if the Voting Rights Act were still in full force, and the white-non-white gap was about four points higher. And also, quote, the turnout gap grew

almost twice as quickly in formally covered jurisdictions as in other parts of the country with similar demographic and socioeconomic profiles. And all of this you have anecdotally obviously seen on the ground, but it's really stark to see the actual data compiled the way the Brennan Center did. So there have been some folks who are like poo-pooing the report on The View that, of course, things were going to go down in terms of voter turnout because Barack Obama wasn't on the ballot, to which I say the same logic could be applied to Chief Justice John Roberts' rationale in Shelby County versus Holder, which talked about the uptick in minority voting in recent years. So yes, that's the thing about statistics. rainstorm because you're not getting wet. And she warned about second generation barriers to voting that states had begun to implement.

OK, so we are going to do a lightning round and quickly note a few opinions the court has issued in cases that we have talked about. First up, Murray versus UBS. That's a case in which the court recently handed whistleblower plaint have talked about. First up, Murray v. UBS. That's a case in which the court recently handed whistleblower plaintiff Trevor Murray, no relation to Melissa, and his attorney, strict scrutiny super guest Isha Anand, a unanimous win, reversing a Second Circuit opinion that had required Murray to show not only that he was retaliated against for protected activity, but also that his employer acted with retaliatory intent. That was wrong, and that's really no surprise after the oral argument.

We really felt like we called that one and correctly, but it is still a great result in Isha's first SCOTUS argument. Congratulations, Isha and Klan Murray. It's the first time Klan Murray's won at the court in a long time. Yes. Not the last. We also got an opinion in McElrath v. Georgia. The court, in a unanimous opinion by Justice Jackson, ruled for the defendant in this double jeopardy challenge.

In this case, a jury had convicted a defendant of some charges and acquitted him on others. And the state Supreme Court concluded those verdicts were so incompatible and inconsistent that they were repugnant. And therefore, the defendant could be retried. The Supreme Court said that, guess what, folks? That's not how double jeopardy works. If you were tried and the jury acquitted you, even if the state thinks that the jury was inconsistent in its treatment of other charges, you cannot be retried. You cannot be put in jeopardy twice for the same offense.

Hence the term double jeopardy, the actual doctrine, not principles of double jeopardy. All right. And last week we got an opinion in Linkey v. Freed and the other social media blocking case, which is O'Connor-Ratcliffe. These two cases were sort of a pair of cases. They were about when the First Amendment limits government officials' ability to block citizens from seeing or engaging with their social media accounts on things like Twitter and Facebook. So the court, in a unanimous and pretty narrow opinion written by Justice Barrett, said that government officials' accounts on social media constitute state action that is subject to the First Amendment and therefore limited in its ability to penalize people for the content or viewpoint of their speech by doing things like blocking them only when the account purports to post on the state's behalf

while possessing actual authority to speak on the state's behalf. It's a pretty sensible rule, and the court smartly doesn't say a ton about how exactly the rule applies to particular cases, leaving details to be worked out by the lower courts and potentially down the road, which is a smart call given the evolving face of social media. The court just emphasizes that the authority need not come from state law, but can come from custom or consistent usage, but also that the mere appearance of an account doesn't mean the account is on behalf of the government. So the generality and sort of under-specification, I think, is a virtue in many ways. I found it a little frustrating, and I was a little surprised that Kagan didn't write separately because she seemed sort of troubled by the kind of like arm-waving sort

of generality of like, what are you authorized to do under law? And she was like, well, lots of officials, part of their job is talking. Like, I'm not sure, like that seems that's not really enough of a test. But this might just be an occasion where doing something minimal was more important than being super clear. And the lower courts just know that sometimes you actually can violate the Constitution as a public official, even if you're on, you know, what you say is a private account, if you are doing the work of government on there, that it converts it to kind of government action and the Constitution applies. And so I do think that's actually a really important principle to have preserved coming out of this case. And we also got an opinion in a much anticipated case, Pulsiver versus

United States. This was the First Step Act case about who is eligible for resentencing under the First Step Act. The First Step Act is a law that eligible for resentencing under the First Step Act. The First Step Act is a law that sought to reduce the incredibly harsh, severe mandatory minimums around federal drug laws. And in this case, in a six to three opinion by Justice Kagan, the court adopted the government's interpretation of the law that made those resentencings available to fewer people. Basically, the statute lists three conditions and says that a defendant is eligible for resentencing only if a defendant does not have A, one type of conviction, B, another type of conviction, and C, some other attribute. The court said that meant that a

defendant couldn't have any of those individual conditions, and the defendant had argued that a defendant wasn't eligible only if they had all of those conditions met, And the defendant had argued that a defendant wasn't eligible only if they had all of those conditions met since the statute used the term and as opposed to or. As Justice Gorsuch noted in dissent for himself, along with Justices Sotomayor and Jackson, the court kind of rewrote the statute so that the phrase, quote, does not have was no longer before an MDASH that preceded conditions A, B, and C that Melissa just mentioned, but instead was included in all of the conditions. So the statute actually read something like a defendant is eligible for resentencing only if the defendant does not have

type A conviction, does not have type B conviction, does not have type C. That's not what the statute says, but that's essentially what the majority did. And this too seems like a case where the worst person that you know has a point. Because, you know, as Gorsuch noted, like, yes, the government's implicit distribution theory requires a reader to delete words before the M-draft. Yes, it requires a reader to reinsert them in three different places where they do not appear. And, you know, the result in the case makes sense in that a policy justification for the defendant's interpretation might not leap off the page or seem as plausible as the government's.

But that's not supposed to be the lodestar for interpreting statutes. So this was a very disappointing result. And in particular, because this is one of the rare cases where Leah thought, based on the arguments coming out of the case, you were optimistic about how the court's affinity for textualism. Not the argument. I think like in the preview before the argument. Again, I don't see how anyone on this court can say that they are a textualist with a straight face after this. I mean, like what they are is pro-government anytime there is a criminal involved or someone who's alleged to be a criminal. Disappointing. They intone it so often. We are all textualists that like you begin to take it seriously, but maybe that was just like our mistake. And like sometimes they stick to it.

Right. But it's just difficult to get a sense for when. Yeah. Yeah. OK. One final point, which is that it is an election year. And so we are watching a lot of litigation involving the ballot across the country. And we wanted to flag an issue and a lawsuit in New Jersey that involves this quirky issue of the design of the ballot. So basically in New Jersey, as I have recently learned, where you appear on the ballot is largely determined by whether you get the county party's endorsement.

If you get the endorsement, you get the super preferential placement on the ballot, which is an enormous advantage. And this matters a lot because there is an important primary election happening for the Senate in June in New Jersey. So people will recall that Senator Menendez under indictment has refused to step down. So there is this heated primary race involving Congressman Andy Kim and New Jersey First Lady Tammy Murphy. And the lawsuit basically says it is messed up for these county parties to have this role that will maybe determine who the Democratic candidate in the general election for Senate is. And the Senate is going to be close and it's going to matter a lot. So there's a hearing in this case next week and we're going to keep our eye on it.

So that is all we have time for this week. If you are still listening to us, well, first of all, thank you. That means you're a super fan. And super awesome. And super awesome. And second, you deserve first access to our presale tickets for our newly announced DC show.

We are going to be headed to the nation's capital on June 22nd in DC at the Howard Theater to host Strict Scrutiny Live. So grab your presale tickets now with the code SCRUTINY. Head to crooked.com slash events to snag them now. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Melissa Murray, and Kate Shaw. Thank you. an episode. And if you want to help other people find the show or find Kate Middleton, please rate and review us. It really helps.