Strict Scrutiny - We're Doing S'mores

Episode Date: February 21, 2022

Leah, Kate, & Melissa run through a bunch of Court adjacent news-- including this Jane Mayer piece about Ginni Thomas-- before highlighting the big cases to watch in the February sitting. Follow us on Instagram, Twitter, Threads, and Bluesky

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

And I'm Leah Littman. Because the court hasn't been hearing arguments over the last couple of weeks, we took a little bit of a break from recording, which has meant that a lot of court-adjacent news and culture has piled up in the meantime. So we're going to spend a good chunk of this episode covering a bunch of important news and reporting about the court and some important court culture news. And then we'll briefly highlight at a very general level some of the cases we're watching for the February sitting. And those cases will be covered in more depth in later episodes, as you know. But we are going to have some fabulous guests on in the future to

help us preview and recap them. So fear not. This is a surface level look, but we're coming back with more depth and more expertise. So let's discuss some assorted court culture and court news. First up, Jane Mayer, legendary and award-winning reporter at The New Yorker, wrote a piece entitled, Is Ginny Thomas a Threat to the Supreme Court? The piece reports how Ginny Thomas is working with a bunch of groups that are directly involved in some of the court's higher profile and more partisan or ideological cases. And this raises a host of legal ethics and I think institutional concerns that Mayer kind of alludes to in the piece.

So maybe some background for this piece. Before Jane Mayer's most recent article, it had been reported that Janie Thomas was an active participant on the listserv for former Thomas clerks. And in particular, she was active on the listserv kind of agitating about Trump's loss. And I think that's important context, if only because it suggests there isn't necessarily a ton of separation between Ginny Thomas and her husband's law clerks, you know, part of his work as a justice. Her Facebook posts about the January 6th insurrection have also previously attracted some attention. That morning, as the insurrection was unfolding, she did some shitposting on Facebook, you know, as one does. So she linked

to a news item about the protest saying, love MAGA people. And then she posted Ronald Reagan's a time for choosing speech. And her next status update was God bless each of you standing up or praying. She later added a disclaimer that she wrote those before violence in the U.S. Capitol. But, you know, that's some context for this piece. Okay, so Leah's laying the foundation. So a lot of that was known. But Mayer's piece does break a lot of news about Ginny Thomas. Let's tick through some of the new things we learned from the piece.

So one, we learned that in 2019, Ginny Thomas announced a political project called Crowdsourcers. One of her four partners in the project was the founder of Project Veritas, James O'Keefe. Project Veritas, for people who aren't familiar with it, tries basically to embarrass progressives by making secret videos of them. Last year, Project Veritas petitioned the court to enjoin Massachusetts from enforcing a state law that bans the surreptitious taping of public officials. Another partner in this crowdsources initiative was Cleta Mitchell, the chairman of the Public Interest Legal Foundation, a conservative election law nonprofit. Mitchell, of course, was a top outside advisor to Trump in the last days of the Trump administration. She was on the notorious call in which Trump tried to pressure Georgia Secretary

of State Brad Raffensperger to find an additional 11 plus thousand votes for Trump. She subsequently left her law firm. Okay, so that's one new thing we learned. The piece also talks about Thomas's service on the advisory board of the National Association of Scholars, which is a group promoting conservative values in academia, which has filed an amicus brief before the court in the affirmative action case the court recently agreed to hear. And then four years ago, Ginny Thomas inaugurated the Impact Awards, an annual ceremony to honor courageous cultural warriors battling radical ideologues on the left who use manipulation, mobs, and deceit for their ends. At the 2019 event, Ginny Thomas praised one of that year's recipients, Abby Johnson,

who was a former Planned Parenthood employee who then became an anti-abortion activist. And she was honored for her riveting indictment of Planned Parenthood's propagation of lies. That year, Thomas also gave a prize to Mark Meadows, of course, former White House Chief of Staff, describing him as the leader in the House right now that we were waiting for. Meadows, in accepting the award, said, Jenny was talking about how we team up and we actually have teamed up. And I'm going to give you something you won't hear anywhere else. We worked through the first five days of the impeachment hearings. Well, in addition, in 2020, Johnson, a year after receiving the Impact Award, filed with the court an amicus brief supporting restrictions on abortion in Louisiana.

Last month, she went on Fox News and said that, quote, a couple of the liberal justices, and she then singled out Justice Sotomayor by name, have been, quote unquote, idiotic during oral arguments in Dobbs v. Jackson Women's Health Organization, the Mississippi abortion case that is now under consideration by the Supreme Court. So this is Ginny Thomas's honoree just a year later, opining on this case that is now pending before the court. And then on December 15th, Ginny and 62 other prominent conservatives signed on to an open letter to Kevin McCarthy, the House minority leader, demanding that the House Republican Conference excommunicate representatives Liz Cheney and Adam Kinzinger for their quote-unquote

egregious willingness to serve on the January 6th special committee. Another Ginni Thomas associate and client is Frank Gaffney, who is perhaps best known for having made claims suggesting that former President Obama is a Muslim. Mayer got her hands on documents showing that Gaffney was a colleague of Ginny Thomas' at groundswell as far back as 2013. Mayer also reports that in January of 2019, Ginny Thomas secured for Frank Gaffney the access that her website promises to prospective clients. And this sort of mirrors some earlier reporting from Maggie Haberman of The New York Times and Jonathan Swan of Axios. Both of them reported that not long after Ginny and Clarence Thomas had a private dinner

at the White House with Donald and Melania Trump, the president's staff apparently gave in to a months-long campaign by Ginny to bring her, Gaffney, and several other associates to the White House to press the president on policy and personnel issues. And according to Mayer's new reporting, Thomas allegedly opened this meeting by saying that she did not trust everyone in the room, and she urged the president to purge his administration of disloyal members of the quote-unquote deep state, handing him an enemies list. So wow, to be a fly on the wall or on somebody's head during all of this would have been amazing.

I mean, the reporting is pretty wild. People should read the piece and it raises all kinds of questions, such as about whether Justice Thomas should have participated in some of the cases in which the individuals who were working with or for the groups that his wife was on the advisory committee for or was so heavily involved in, you know, in which those groups were participating. You know, another question that it raises is, does this connect up at all with the lone vote Justice Thomas cast to grant Trump's request to have the court take up the challenge to the January 6th committee's access to his documents, or at least the ones that he didn't take to Mar-a-Lago and flush down the White House toilets. Or flush. I think he took some to Mar-a-Lago, flushed some in the White House. Maybe some he did both. Did he take some to Mar-a-Lago to flush them there, you think? I mean, personally, I only wish he had taken Justice Kavanaugh's concurrence in Merrill v. Milligan and flushed that one down the White House toilet before that one ever saw the light of day.

But, you know, he probably picked the wrong documents to put down the toilet is my initial impression. Can you imagine being a plumber on this duty and just being like, what the F is this? What is this? Like, that would just be the worst job ever. Yeah. So Mayer interviews a lot of well-known ethicists. And while no one will quite say that this is clearly a violation of some rules of conduct, that is likely because there aren't actually any rules that govern the Supreme Court in terms of inappropriate associations. And that's an indictment of the lack of rules that surround the court. But

it's kind of clear to everyone that the optics of this are atrocious. And then it raises serious questions about how people are, or, you know, can perceive the court as potentially open to many different arguments or whether certain parties have special access. Some of it does seem a little bit like access peddling. Yes, absolutely. I mean, is that too much? No, totally. In addition, there was that sort of piece of breaking news after the mayor piece ran,

which was, remember American Oversight, this political watchdog group, reported that Ginny Thomas had invited Ron DeSantis to join her weekly cone of silence, like something that her groundswell group does, like they have these cone of silence meetings. And she said in this document that Justice Thomas had been in contact with the governor as well. So it very much seems from some of the documents that Ginny Thomas is connecting the work

that she is doing to her husband's position. So I don't think that's an unfair inference to draw from this reporting. Can you imagine if this were one of the liberal justices, if Justice Breyer's wife was bringing people to her husband to talk about cases or just various

issues that are sort of court adjacent? I cannot even imagine. Do you remember the panic that happened recently when, I think it was Politico incorrectly reported that Chuck Schumer had dinner with Justice Sotomayor when in fact it that Chuck Schumer had dinner with Justice Sotomayor, when in fact it was Chuck Schumer having dinner with his wife.

Who happens to have dark hair. Right, right. Who happens to have hair, I just say. And people flipped out. And this is Justice Thomas and Ginny Thomas meeting with the president, meeting with the vice president, meeting with Ron DeSantis and silence. I mean, it's just astonishing. Well, we will continue to make noise about it.

And look, to be clear, none of us would ever suggest that the spouses of the justices can't have careers. That's not the problem. that seem from some of these documents and anecdotes that Mayer relates to reveal her making connections between the work she is doing outside and the work of her husband, and also where she is working directly with groups that have business before the court, right? That's not, I don't, a lot of it is pretty straightforward that she just needs to make choices if she wants to do political consulting to not work on matters that are actively pending before the court. And it doesn't seem as though that's been a guiding principle for her. No. So in more news about the Thomases, on a previous podcast, we discussed the allegations

that the chief judge of the 11th Circuit, Chief Judge Pryoror had hired a law clerk who had allegedly sent some racist text messages when she was an employee for the conservative organization Turning Point USA. Mayer, who is all over this beat, reported on this episode extensively back in 2017. And a complaint was filed against Chief Judge Pryor, and the Second Circuit recently dismissed the complaint, finding no wrongdoing. But that's when things get even stranger. So Ruth Marcus at the Washington Post and former guest here at Strict Scrutiny published a follow-on story about the Second Circuit's dismissal of that complaint. And as she reports, the dismissal was animated in part because of some letters that were filed in the case by Judge Pryor and Justice Thomas. So recall that the law clerk had worked as an intern for Ginny Thomas after maybe she was fired from Turning Point USA.

So that's sort of the context. There's this letter then from Justice Thomas describing how the intern, quote, came to live with us and work with my wife about three years ago after her controversial and public departure from Turning Point, USA. My wife informed me of the horrible way in which she had been treated at Turning Point and asked that she be allowed to live with us. I agreed, and she lived with us for almost a year, end quote. Justice Thomas then relates how he encouraged the intern to go to law school, recommending her when she applied to law school, and then suggested her to Pryor as a clerk, informing him then of the, quote, grossly out of character and unfounded allegations against her, end quote. Justice Thomas concluded the letter by saying, it is certainly my intention to consider her for a clerkship should she perform as I expect and excel in her clerkships.

That is quite an endorsement. He's saying she's definitely got a clerkship with him. So we all have that to look forward to. But so the prior letter also goes into more detail and it explains, and this is all again Ruth Marcus's reporting. So the letter says, before I hired her, I determined after careful investigation that Crystal had been the victim of a false accusation of racist behavior by a tabloid reporter whose central accusation relied entirely on an anonymous source in her scandalous report. So who's the tabloid reporter? Right. Who's the tab? What's the tabloid? Who's the tabloid reporter? Oh, yeah, it's the New Yorker. And Jim Mayer is the tabloid reporter. But before we even get there, you know what? This checks out to me.

Couldn't have sent those text messages. Couldn't have done it. You know what? It was someone who lived at this other house that I found on Zillow. That's clearly what he did. Yep. Anyway.

Sherlock Holmes. Yeah. So the reporter, the dabbled reporter in her scandalous report is the New Yorker's Jane Mayer, as we just said. Pryor goes on in his letter to say, I was familiar with the reporter who published that initial report, and I distrusted her work.

So presumably this is a reference, right, to a book Mayer co-authored with Jill Abramson about Thomas's confirmation, strange justice, or maybe more broadly, but certainly doesn't elaborate in this swipe in a letter. I didn't trust her. It was a tabloid. I didn't trust her. It was a tabloid. I didn't trust her. I did my own investigation. And Zillow has exonerated

his wife. It's clear. It's pretty, I mean, you know, he says Thomas told him that, okay, so clearly Zillow was supplemented by a conversation that was also part

of the investigation that Pryor had with Thomas in which Thomas told him the turning point had determined that a rogue employee had compromised the accounts of several co-workers, including this young woman, to make it appear that they had engaged in misconduct when they had not. Just as Thomas explained that Turning Point fired that rogue employee. Maybe. The rogue employee theory, Zillow, Thomas, and the rogue employee theory all feel a little convenient. And I certainly haven't seen any independent reporting that confirms this rogue employee theory.

And yet – Have you checked Zillow though, Kate? Have you checked Zillow? I haven't launched my own investigation, so I will report back once I have. I just love like the chief judge of the 11th Circuit is like basically a low-key Nancy Drew. Yes. Like sleuthing. Sleuthing this all out.

The case of the missing rogue employee. Exactly. I love this. So moving on to other Supreme Court justices doing great things for the institution. So Justice Neil Gorsuch decided to prove that both the Supreme Court and the Federalist Society are not political. And he did this by giving a speech to a Federalist Society event in Florida, which is closed to the press. And the speech occurred during a conference that includes remarks from the following legendary constitutional theorists, who are obviously the kind of people

you would want participating in a legal debate society, which I'm told is what the federal society is. Those people would be former Trump vice president Mike Pence, current governor of Florida Ron DeSantis, and former Trump White House press secretary Kayleigh McEnany. What are you trying to say? What I'm trying to say is if I was thinking about who I could get together in order to form a super nonpartisan, non-ideological group, it would definitely be Mike Pence, Ron DeSantis, Kayleigh McEnany, and Neil Gorsuch. This is like my fantasy con law outline group. What are you talking about?

Exactly. When I think to myself, like, who can teach me something about what the Constitution means? I think Ron DeSantis. And we're all good. We're all good. The two-day meeting also featured a session billed, quote, the end of Roe versus Wade. That was moderated by a federal- There was a question mark after it, to be clear. Yes. The end of Roe there was a question mark after it to be clear yes uh the end of roe versus wade question mark whoo and then like a winky there was like a little winky emoji right after that too um it's not in the bag yet and that's definitely how the court of appeals are asking a point we will return to in a moment anyways uh that event the end of roe versus wade question

mark um was moderated by a federal judge appointed by former President Donald Trump, Catherine Mazzell, who was like 33 or 34 when she was nominated by President Trump. Also participating in that event was the Mississippi Solicitor General, who has asked the Supreme Court to overrule Roe. Boom. Lawyered. In a nonpartisan way. Non-ideological. Nonyered. In a non-partisan way. Non-ideological. Non-partisan. There's been remarkably little leaking from that. We still don't know, and I can't believe we don't, what Gorsuch talked about. Come on. Someone who is there is listening to this episode and will talk to us. Our DMs and strictstrictmepodcast at gmail.com are both open if anybody wants to tell us what Gorsuch said in this completely closed press event.

And we should actually mention that there was chatter on a constitutional law professor's listserv recently suggesting that Justice Alito has given at least one closed press speech about which we didn't even know. And in which he kind of came out swinging as he is wont to do about his preferred issues. And the ground rules were evidently that attendees were not to reveal anything. But as was the case with the Gorsuch speech, if you were there and you want to talk to us about it, we would be delighted. Email us, strictscrutinypodcast at gmail.com or DM us on Twitter. In other news from around the country in the Fifth Circuit, a Fifth Circuit judge recently asked a Department of Justice lawyer to remove his mask at oral arguments. So in December, a DOJ lawyer asked the Fifth Circuit if he could participate in oral arguments remotely so he could

avoid traveling to New Orleans where the Fifth Circuit hears cases. The lawyer, as explanation for this request, noted that he had two young children who were not yet able to be vaccinated. The panel of judges, which included Jerry Smith, Jennifer Elrod and Andy Oldham, all Republican appointees, denied his request to appear remotely. So he appeared and he appeared masked before the panel. And at that point, the following ensued. Go ahead and remove your mask. I'd prefer to leave it on. We would prefer that you remove it.

Thank you. We would prefer that you remove it. Thank you. I mean, that was just shocking to me. It seems like this will be the next stage of challenges to like masking and vaccinations. That is like it's no longer enough to say that entities can't require people to wear masks. It's also the case that when people choose to wear masks, apparently you can insist that they take them off. I found that astonishing. I mean,

you could hear the lawyer, there was no problem, right? Like he's speaking at a podium, Mike. podium might. So that was the Fifth Circuit. And the Sixth Circuit has decided to pull a Fifth Circuit in using procedural maneuvers to allow a state to enforce a law that is wildly inconsistent with Roe v. Wade and nullifies its protections. So the case here involves a challenge to a Tennessee law known as a reason ban, which prohibits abortions on the basis of certain characteristics like race or sex or a Down syndrome diagnosis. So a district court enjoined the law, that is, the court issued an opinion that prevented the state from enforcing the law. And the Sixth Circuit, the court of appeals that hears cases from Tennessee, stayed that injunction, which means they are allowing the state to enforce the law. Even more egregiously, the Sixth Circuit decided to just hold the case for the Supreme Court's decision in Dobbs. And by doing so,

they are ensuring that Tennessee's law will be enforced and that it will be in effect for at least a few months, if not longer, since we aren't expecting the decision in Dobbs before like the end of June. And I mean, this is just additional evidence. No one thinks Roe and this reason ban, the reason why the district court enjoined the law was that it effectively functions as a pre-viability ban on abortion, it found. And then the Sixth Circuit stepped in to allow the law to be enforced. But and that, I guess, is fine. Not really, but it would have been, I guess, less egregious if they had continued the process of determining the constitutionality of the statute. But instead, they are waiting for Dobbs, which will determine if Roe versus Wade exists at all. And again, as Leah says, Roe is not safe.

And it seems like that's an open secret, at least on the Sixth Circuit. And we should say that Judge Karen Nelson Moore, in dissent, wrote that the decision showcases a growing trend among federal courts to use facially neutral mechanisms to delay the adjudication of laws that significantly impair constitutional rights. And she cites their writings about SB8, both in the Supreme Court and in the Fifth Circuit, but says, yeah, in the current moment, courts have confined these tactics to cases concerning abortion, right? She obviously agrees that everyone is just essentially fast-forwarding time as though Roe has already been overturned, but points out that the same mechanisms that courts have used in these cases can be used to manipulate the court process in cases involving whatever right next falls into the disfavor of a then reigning majority. She says, I cannot sign on to the use of such strategy to subvert the regular judicial process.

Yeah. It's a scary, scary dystopic future, but we're barreling towards it. Back to the wild, wild west, that is the Fifth Circuit. You might remember in an earlier episode, we noted that a district court judge in Texas had enjoined on a nationwide basis, a federal rule requiring employees in the executive branch to get vaccinated. This is a rule that applies to employees of the federal government. So again, the idea that the President of the United States doesn't have the authority to set health and safety requirements for people that work in the executive branch seems a little strange. We were less confident that the Fifth Circuit would do anything about this, and we were correct.

The Fifth Circuit, by a two-to-one one vote refused to halt the nationwide injunction prohibiting President Biden from requiring his own workforce to be vaccinated against COVID-19. The case is feds for medical freedom versus Biden. And the likelihood of this being dealt with at a future basis is possible. Maybe the Fifth Circuit will revisit this later. But it seems likely if they do, it's going to be revisited by SCOTUS. And wow, yikes, given everything that we've seen there in the last couple of weeks. So more good times with vaccination and bodily autonomy. More bodily autonomy.

Nothing but bodily autonomy here. My body, my choice. Some kinds, some kinds, just not all. Oh, Kate. So we also wanted to return to the Supreme Court's action in the Alabama Voting Rights Act case, Merrill versus Milligan. So Ariane DeVogue at CNN had a great story about the similarities between this Alabama case and the Texas SB8 case. Namely, it seemed like in both instances,

the court knew they were going to change the law, the governing standard under Roe versus Wade, or the governing legal test for vote dilution claims under the Voting Rights Act. And so the court was like, eh, we're just going to throw out all the usual rules because we know what we're going to do here and we just can't wait to do it. Melissa, you weren't able to join the emergency episode we did with Dewell Ross of LDF, who is really wonderful. Everyone should listen to that episode if they haven't had a chance to do so yet. But curious to hear your thoughts or whether you had anything to add. So I have to say, it's really nice when I get to be a listener and not just a participant in the conversation. I mean, it was a great conversation. And listeners, if you haven't

listened to it, I highly recommend it. I will just say from my own perspective, that decision came down a few days after I had covered the Ruscio case and partisan gerrymandering in my 1L con law class. And, you know, I think I'd left them with, I hadn't meant to leave them optimistic, but I think I may have left them with the optimistic impression that whatever happened vis-a-vis partisan gerrymandering, at least the prospect of addressing racial gerrymandering was sound. And so I was able to, I know. Melissa, you optimist. You silly, you cockeyed optimist. I don't feel like I did this, but I think when I came back to class the following day after this decision was announced, they were like, but we thought racial gerrymandering was justiciable. I'm like, it is. It's just not actionable. If they can hear it, they just won't do anything.

That's the difference. And I think it just sort of crystallizes, like, it is kind of wild to be teaching con law in this moment where you go through all of these cases, and I just did a non-delegation doctrine case, and you want to just tell them, this is the law right now, and it'll probably be the law while you take your exams, I hope, But I can't be sure because I don't know what they're going to decide before May. But it's going to be wildly different when you sit for the bar. So don't get attached. Or even like we have to teach these things like they make sense and sort of try to elicit, distill rules. But not even things just substantively like

the non-delegation doctrine, even just like the justiciability doctrines. I mean, we're going to get to the West Virginia versus EPA case and Arizona versus San Francisco. But like, it's going to be very hard for me with a straight face to suggest that these justiciability doctrines, advisory opinion prohibition, standing requirements, that these actually mean anything if the court decides those cases on the merits. Like there's absolutely no way that it should. Okay, we'll get there. But I totally agree. Can I just make one more actually a point about Alabama that I sort of a related thought, not from teaching con law, but from teaching administrative law, which is it's probably

because I'm teaching the presidential appointment and removal cases right now. But like, as I was reading the Alabama redistricting case, and in particular, the John Roberts, you know, the dissent, not partial dissent, an actual dissent, but like a just not now kind of dissent, not partial dissent, an actual dissent, but like a just not now kind of dissent. But all I kept thinking about was that John Roberts actually is interested in protecting democracy, right? He just knows that the real way to protect democracy is to protect the president's right to fire the heads of independent agencies, right? That that is where democracy gets made or broken, not in protecting people's right to actually vote and have meaningful representation. So I think we're just misunderstanding him.

Yeah, if you look up democracy in a dictionary, that's like the first or the second definition, I'm sure. It's core. It's central. So he actually really is a passionate defender of democracy. So I wanted to make two additional points. at Columbia and Joe Patrice at Above the Law have made, which is one concern that Justice Kavanaugh's opinion raises is it's not fair for people to challenge election rules that have already gone into place, even if they do so immediately and before those rules are actually ever enforced. And of course, one solution to that problem of allowing people to challenge election rules

after the fact was the formerly regime of preclearance, which required states to obtain permission before changing their voting laws and thereby avoided the problems that result from after the fact litigation to challenge election rules. But the Supreme Court dismantled that regime in Shelby County versus Holger. And so the very problems that the court is identifying with the current method of challenging voting restrictions are problems of the court's creation. The second thing is Mark Joseph Stern, a writer at Slate, made, I think, this great slash terrifying point about reading

Justice Kavanaugh's concurrence in Merrill versus Milligan against the background of something Justice Kavanaugh said in his confirmation hearings when he got very angry. And as we all know, in the United States political system of the early 2000s, what goes around comes around. There you go. On that bright note, do we want to look ahead to what the court will be deciding this term in a very principled, nonpartisan, non-ideological basis? Why are you like this? First up, planet Earth. Melissa is asking me why I'm like this. Don't look up i know i mean i don't know if we're like torturing the marshmallow metaphor too much but it does feel like there's like a build the bonfire bust out the graham crackers and chocolate bars like we are fucking doing s'mores now like feel to the cases we're about to talk about because we will if they can't resist deciding some of the stuff on the merits like

yeah it's a full bonfire. Have you all watched Yellow Jackets? Have you watched Yellow Jackets? Okay. Have you not, Leah? No, I haven't because I'm terrified of flying. Oh, yeah. You should not watch Yellow Jackets.

Never mind. Yeah. So we did. We watched it. We watched it. There's a little bit of like, you know, like there's a bear to kill and we're just going to eat. Yeah. Like they just go whole hog. In any event, let's talk about the climate cases. Hand me the knife, John. I will. I will just drive it in the bear's neck. Yeah. I don't know who that, is that Gorsuch who's issuing the command there? I'm not. Who's Lottie? I don't know. Who's Lottie?

We got to wait for season two. It's a really big. Who is Lottie? Who is Lottie? Exactly. We got to wait for season two. It's a really big – We definitely – who is Lottie? Who is Lottie? Onward. Okay. Biggest of the cases in the February sitting, I think, though it shouldn't be on the calendar for the February sitting at all, is the consolidated cases, West Virginia versus EPA, a super important case or set of cases in which the court has the potential to make it much more difficult for the EPA to limit greenhouse gas emissions, could also potentially curtail government's capacity to address climate change and many other pressing problems more broadly. But the backstory of the case, I think, makes clear why the court shouldn't be hearing it at all. It's pretty complicated, so we'll simplify somewhat. But the basics are that the case

dates back to 2015, when the Obama administration, near the end of the administration, the EPA, acting pursuant to its authority under the Clean Air Act, issued two new rules addressing carbon dioxide emissions from power plants. The new source rule and, as relevant here, the Clean Power Plan. So the Clean Power Plan was basically structured using kind of a cooperative federalism model that let states create their own plans to figure out how to reduce carbon dioxide emissions from existing power plants gradually over the course of a bunch of years, and then hitting some big targets by 2030. So a lot of private parties and states then filed lawsuits. The Supreme Court, in an early exercise of what has come to be a scarily familiar move, took the extraordinary step of staying the plan before the DC Circuit

had even heard arguments in the case. This is, I think, the first time it had ever done that with a regulation. So the on-bank DC Circuit then heard many, many hours of arguments, stayed the matter because there was a change in administrations and, you know, the Trump administration was clearly going to have a different regulatory philosophy than the Obama administration. So in 2019, the Trump EPA repealed the Clean Power Plan and replaced it with something called the Affordable Clean Energy, or ACE, rule. So a new set of challenges get filed to the repeal of the Clean Power Plan and to the ACE rule. The Court of Appeals vacates both the repeal of the

Clean Power Plan and of the ACE rule, says, you know, both the repeal of the Clean Power Plan and of the ACE rule. It says, you know, both the repeal of the one rule and the promulgation of the other rule are based on a legal error. And the error is this ridiculously narrow reading of the Clean Air Act that the Trump EPA based these two actions on. Stay with me for another minute. Almost done with the procedural background. So the Court of Appeals then issues its mandate in the case vacating the ACE, but the EPA asks it to stay its mandate in the Clean Power Plan repeal case because it says there's a new rulemaking happening, there's no rule in effect now, let's just get this new rulemaking done. So the states and the private defendants have somehow gotten the court to take this case, even though there is no rule in effect. The Clean Power Plan is not in effect. The ACE is not in effect. So all of the

big questions about the future and the power of the administrative state are happening in the abstract, which is not how courts are supposed to resolve questions. Wait, wait, wait. Hold on, Kate. Are you saying that this is an abstract or speculative dispute as opposed to an actual case or controversy? The fact that there is no regulation is a problem? I mean, it's the ultimate request for an advisory opinion. The briefs, I feel like, should just say that. What they're asking the court to do is to opine in the abstract about what the EPA has or, more to the point,

lacks the authority to do with respect to carbon dioxide emissions in the context of power plants. And so that's why it's really hard for me to, even as I think about what the ask here is, it's like, there's a lot of argument about- The ask is to deconstruct the administrative state. Like, that's the ask. Doesn't matter the facts. Doesn't matter the regulation. Exactly. That was on Leonard Leo's to-do list. That's the ask. Just do it. YOLO. No law. Just vibes. All the way down. And here, I mean, the shocking thing is you say, like, that's what the brief should say. I mean, in some ways, that's what the briefs on both sides say. I mean, some

of the states arguing against the EPA's authority describe the rule as, quote, a legal nullity. And that's not just because the Court of Appeals, you know, decided the case and stayed as mandate. That's because the EPA announced that they were undertaking a new rulemaking. So that old rule is completely out the door, off the books, and just doesn't matter. You know. Actually, I looked at the words cases and controversies in Article 3. And it turns out that if you look at the dictionary, one of the definitions of cases is deconstructing the administrative state. So it all works. Exactly. I'm a textualist. I'm a textualist. And an originalist. That's what James Madison said, actually. It was in an unpublished Federalist paper. But I got my hands on it.

We should talk after the argument a little bit more about the substance of the asks insofar as it's even possible to get your arms around them. But, you know, basically, right, it is – there's the general claim that Congress has to speak with unmissable or unmistakable clarity if it wants to address so-called major questions. The non-delegation doctrine. Yeah, it's like – but they're not calling it exactly. The non-delegation doctrine. practical matter never going to happen. But it is part of this project. I mean, if you go back to the OSHA vax test opinion and Gorsuch's concurrence there, I mean, he talks about the major questions doctrine as being adjunct to the non-delegation doctrine. So this is all of a piece, regardless of if it's sort of narrowly confined to this one question right now. It is building for a more sizable confrontation with the non-delegation doctrine in the future. Absolutely. I mean, we're going to have to sort of workshop some synonyms to lawless because

I mean, if they reach out and take- Law adjacent. Law free. Yeah, law free is good too. Illegal as opposed to illegal. Anti-legal? Could it be anti-legal? To push the Yellow Jackets reference, this argument is going to be a bear, which is to say that it's, I think it's going to be quite messy.

The court has granted 20 minutes for the state petitioners, 15 minutes for the private petitioners, 20 minutes for the federal respondents, and then 15 minutes for the power company respondents. But, you know, the Chief Justice has been relatively permissive with the allocation of time in this sort of by telephone oral arguments. We don't want to call it telephonic. And the DC arguments, at least one of the cases... Wait, will they be by telephone? No, just meaning like the new format. Yeah, the live stream. Yeah, like the telephonic that we hear. Oh, on our end. Yeah, like now that everyone gets to hear this, he's been pretty good about allowing some latitude for the time. And the D.C. Circuit arguments in one of the cases was literally eight hours long.

So I don't know how much time you are bracketing for oral arguments in this case, but I think it's going to be a marathon. I'm just trying to figure out what to caffeinate with that morning so that I can withstand whatever Neil Gorsuch says about liberty and democracy and power. It's going to be a lot of pain. I believe it's vodka that you want. Is he going to be the most intolerable at the argument? Yes.

Oh, yeah. I think so. You know, I feel like that is in some ways the safe prediction. But never count out Brett Kavanaugh or Sam Alito, right? You just don't know what they're going to have up their sleeves. So there we go. Georgetown prep for the win. Exactly. Okay, let's go. All right. There are some other cases, including some cases involving Native American affairs. So Leah, do you want to talk about the first one? Yes. So just for now, we're going to highlight one of the cases,

Denezpi v. United States. So that case will decide whether the Court of Indian Offenses of Ute Mountain Ute Agency is a federal agency, such that someone can't be prosecuted in a federal district court if they are first tried in the court of Indian offenses. So the double jeopardy clause, which prohibits you from being tried twice for the same offense, only applies that prohibition to when you are being tried for the same offense by the same government. And here the question is whether the cases in the court of Indian offenses are cases brought by or under the federal government's authority or the tribes. If you are interested in this case, there is a wonderful amicus brief filed by Greg Oblowski at Stanford Law School. Visiting at NYU right now.

Visiting at NYU right now. And Maggie Blackhawk, also at NYU. And the brief is filed by the New Sovereignty Project at NYU. And it provides a really wonderful historical look about the bases for these courts' authority. It's a joint effort between Yale and NYU, so it's great. And just to sort of highlight for listeners, there are still pending on the courts' cert docket some major federal Indian law questions relating to the Indian Child Welfare Act that are going to be monumental when and if they get to them. And I'd say, given the latest episode of the Marshmallow Project, that might not be too far away. So stay tuned. Yep. Okay. Another case. So Ruan versus U.S. is also slated to be argued. This is a case about whether a physician who

prescribes a controlled substance outside of the usual course of professional practice can be convicted of unlawful distribution of a controlled substance, even if the physician in good faith reasonably believed or actually thought the prescriptions did fall within the course of professional practice. So this is obviously a particular issue with respect to prosecutions involving opioids. And opioids can be and are used as painkillers in the course of pain management, and they are prescribed by doctors. But it's also no secret that perhaps some physicians may be prescribing opioids unnecessarily or perhaps in excess or for longer than they are needed. And so

the question here is how you would distinguish between permissible prescriptions of opioids and impermissible illegal ones? And does that depend on whether a doctor reasonably believes that she's doing something within the bounds of professional practice or whether that belief is immaterial? Highlighted in amicus brief in the last case here, I wanted to highlight an amicus brief by the National Pain Advocacy Center, also filed by Debbie Hellman at the University of Virginia Law School. And I think this brief is really important because it appreciates how this case involves not just the opioid crisis, but intersects with the pain crisis and how pain is a widespread public health problem, and that there isn't a single well-understood standard of care for how to treat pain. And that views on prescriptions, including prescriptions of opioids, are in flux as to how to manage pain.

And that over-deterrence of opioid prescriptions has really negative downstream effects on patients. And so over-deterring opioid prescription and under-managing pain has real consequences as well as under-deterring opioid prescription. And I think that's just a very important aspect of the case that I hope the justices appreciate. Okay. So another case the court will be hearing is Egbert v. Boole. This is a case about whether a Bivens action, and a Bivens action is a way of suing federal officials for violating constitutional rights, whether that kind of case can be available when the federal official violates the First Amendment by retaliating against someone for protected speech. No question about what the court is going to say here. They are going to say there

is no Bivens remedy. You cannot sue the federal officials for violating your right against retaliation for protected speech. The only tiny comfort here is that this case was originally filed under a petition for certiorari that asked the Supreme Court to overrule Bivens and say, you can never sue federal officers for violating constitutional rights when you are seeking damages. The petition was filed by Lisa Blatt at Williams & Connolly, as well as Sarah Harris, but the court did not grant cert on that question and instead will just be deciding whether you can sue federal officers for this specific constitutional claim, the First Amendment retaliation claim. So some comfort, I guess.

I guess this is a tiny little kind of counter-marshmallow example because they did not take the biggest version of the question in this case. Well, this wasn't on Leonard Leo's to-do list. Okay, that's right. Or it's low. Yet. Right. Yeah, maybe it's that.

It's a triage list, Kate. That's right. All right, so Arizona versus city and county of San Francisco is about whether states can intervene to defend federal rules and policies that the United States has ceased to defend. So here there is a challenge to a Trump era immigration rule, the public charge rule, which we've previously talked about on this podcast. That rule expanded the grounds for refusing to admit persons or to adjust their status to legal permanent residence. The Trump rule defined the public charge in a very expansive way than previous administrations had done. And they did so in a way that included individuals who are likely to receive particular kinds of public benefits, including Medicaid and Supplemental Nutrition Assistance Program benefits, SNAP

benefits, for more than 12 months in the aggregate in any 36-month period. And obviously, that's a lot of people with families with young children, and so a very expansive definition of public charge. Some cities and states challenged the rule, and a number of district courts issued injunctions to the rule, finding that the rule was contrary to the law, was arbitrary and capricious, and inconsistent with the statute. The Fourth and Ninth Circuits stayed injunctions while the Second and Seventh Circuits did not, and the Supreme Court then stayed the remaining injunctions, another shadow docket action, allowing the Trump administration to begin enforcing the new public charge rule.

And so on January 19th of 2021, literally the day before the inauguration, if you are keeping track, the Trump DOJ filed a series of cert petitions from the Second, Seventh, and Ninth Circuits challenging these actions and the injunctions. And so then we have the inauguration of President Biden. And so, Kate, why don't you take over from here? Sure. So we're in the early Biden administration. Now, in February 2021, the court grants cert. But then in March of 2021, the Biden Justice Department, sort of having gotten up to speed on all the cases, clearly moves to dismiss the cert petition. And the court grants that request and dismisses both the case it had granted and then two more that had petitions pending. The federal government then filed a motion in the Seventh Circuit to dismiss an appeal that

was then pending of the final judgment vacating the rule that a district court had issued. So the Seventh Circuit dismissed the appeal, issued its mandate, and that meant in the federal government's view that this Illinois district court judgment that had vacated the 2019 public charge rule on a nationwide basis took effect. So the federal government then implemented that ruling by issuing a notice, a notice implementing the vacatur, that's how they captioned it, in the federal register. So it was published in the federal register. The federal government also removed the public charge rule and restored the previous regulatory text. So public charge rule, gone. Biden administration starts a new rulemaking,

which is ongoing, and I think it's actually nearing completion. So okay, so it's done. The old rule is done. It's gone. New rule in the works. But is it? What is dead may never die, Kate. What is dead may never die. It really is. It's metaphysical. It really, really is. So then a bunch of red states are like, no, even though it's dead, we want to revive it. We want to defend the rule, the non-rule. And they try to intervene in order to revive the litigation around this rule, which no longer exists. What was it? Yasha, is she the dead?

Anyway, I was trying to locate the character reference in Game of Thrones. It's not the ironborn. It's the ones in the water, right? Asha. Oh, the octopus. Yeah, the octopus people. Okay, sorry. That's the dead may never die, right?

The Greyjoys. I'm slow with the references. Yara. Yara Greyjoy. Yara. Yara Greyjoy. And Theon. Okay, sorry.

And Theon. That's right. I read all the books. I was spotara Greyjoy. Yara Greyjoy. Okay, sorry. And Theon. Theon. That's right. Yeah. I read all the books. I was spotty in having seen them, but I did read the books. Anyway, so sorry. That was a good reference. I'm sorry. I was very slow to catch it. Onward. Okay, so the red states taking the position that what is dead can never die are like, no, we want to defend this rule. They try to intervene in order to revive the litigation around the rule that no longer exists. These states hadn't been parties to the earlier litigation. They hadn't commented on the original public charge rule or the current proposed rule, but somehow claimed a right to

intervene in the Ninth Circuit, both as of right and permissively under federal rule of civil procedure 24. The Ninth Circuit was like, no, Judge Van Dyke dissented, and somehow the court granted cert. And the case is mostly them arguing about intervention standards, but it's a little like West Virginia versus EPA. Like, I can't believe they're having an argument about whether these states can intervene in order to defend a rule that does not exist. Like, there's not a case here. I mean, I'm clearly missing something that the court wants to do in having taken this case. But I don't know.

What do I miss? What they want to do is it would be a huge transfer of power over federal policy to the federal courts and to the states, allowing either or both entity to basically force, you know, an administration to maintain policies they no longer want to implement or defend. And it means the administration would have to go through lengthier administrative processes to end their policies by formally adopting new rules, repealing old ones. That

process, as you note, is still underway with respect to the public charge rule. And we've seen courts prevent administrations from actually doing that. That is, when the Biden administration attempted to go through rulemaking processes and end Trump administration policies like the Remain in Mexico policy, courts have prevented them from doing that, saying the new rule the administration adopted did not comply with the federal statutes governing administrative decision making. And so I feel like allowing red states to intervene in litigation like this essentially forces the administration into avenues that give courts more power over their policies. Right. So more burdensome processes for doing and undoing regulatory action slash sometimes maybe requiring an administration to maintain a policy with which it deeply disagrees.

Can I ask a question, Kate? Because administrative law is not my thing at all. But in the DACA case, this was basically a similar kind of situation. Not exactly the same, but similar. Like you had one administration with a particular policy with regard to DREAMers and then another administration coming in and wanting to change the policy. And the court determined that they had not taken the appropriate procedural steps to do that, to rescind the policy.

It hadn't been done properly. Is this asking for more process than was required and was found to have been wanting in the DACA rescission case? Or is this truly an expansion of the procedural requirements that you would need to rescind a policy? Yeah, I mean, in DACA, it's really just, it's not really that they didn't go through, like, it wasn't a notice and comment process that resulted in the creation of the DACA program nor the rescission. But they talked about compliance. It's the APA requirement of reason giving that's really sort of what dooms the DACA rescission. Yeah, because it was just the reasons that were given that didn't reflect an actual process of considering the relevant factors,

that reliance, which is important, wasn't considered, that the possibility of, you know, disaggregating the different aspects of the DACA program wasn't clearly considered when the rescission was affected. I think probably what these states are going to argue is that the thing that DHS did, which was basically like publish this notice of vacature, wasn't enough and that yes, they needed to do a new notice of proposed rulemaking in order to repeal the rule. Which would be more process. Which would be more process and, you know, slow things down. And who knows, like maybe there'd be another challenge, another arbitrary and capricious challenge that even though everybody said the original rule was unlawful,

that somehow they would argue that the repeal was unlawful, the original rule was like required by the statute or something like that. But I don't even really know because at this point, it's this weird, weird case that's actually about the intervention standards. And so that's really what they're arguing about. And yes, but I presume they would do something to try to challenge the way the federal government ended this policy and would have required some additional steps to be taken. Good times. Thank you. on a happy note, we have a special shout out from the winner of the Strict Scrutiny Shoutout Prize at the University of Michigan Law School's Student Funded Fellowships Auction, an auction to support

students who are doing public interest work. So Liv Torres, the winner of this shout out, asked us to give a big strict scrutiny shout out to her mom, Christy Torres. I feel like last year's recipient also asked us for this. I love this. It's very sweet. Liv also wanted to shout out her kittens. Her kittens are named Ruth Bader Ginsperr. I love that. And Sonia Soto-Meow.

Shut the front door. That's amazing. And if you are now obsessed with her cats, you can follow them on Instagram at CODUS underscore meow. Cats of the United States underscore meow. C-O-T-U-S underscore meow. Anyways, Liv also wanted to shout out her classmates in the Michigan Innocence Clinic, especially Rachel Harrington, her clinic partner. So there we go. Big Strix Grittney shout outs to all of you.

Thank you, as always, to our producer, Melody Rowell. Thank you to Eddie Cooper for making our music. Thank you to all of you for listening. And a reminder, if you would like any of our merchandise before it becomes collector items, get it now before the end of the month at our website, strictscrutinypodcast.com. I saw some of it on eBay. Well, no, I didn't.

It's a lie. It's going to be in six months. That's going to be the only place you're going to be able to get it. And it's going to be like huge money. It's really expensive. Get it now. But do get it now because it's good stuff. I keep reminding myself like before we actually shut down our store,

I personally need to invest in a whole bunch of gear for friends and family. My husband has been complaining. He has nothing. Have you guys gotten your significant others for scrutiny? Oh, yeah. My partner has a sticker on the laptop. He has several shirts, including a necessary to enforce the Voting Rights Act. I got him a burning for Textualism shirt since he teaches statutory interpretation and also no law, just vibes. I got my guy some strict scrutiny stuff. And I think he's really trying to audition to be a spokesmodel. He wears it around the house. Yeah.

We got to do more dog stuff. We got to do more dog stuff. We do.