Strict Scrutiny - What else can the Supreme Court get away with?

Episode Date: July 3, 2023

Melissa, Leah, and Kate recap the last Supreme Court term, as the justices speed off on their summer vacations (in a luxury yacht? on a private jet? in an RV in Walmart parking lot? Who's to say!). They highlight recurring themes throughout the justices' opinions, relive some of the best moments in oral arguments, recap the Court's scandals, and preview the cases that scare them next term.US term. Watch/listen to this episode of The Problem with Jon Stewart where the Strict Scrutiny Hosts breakdown Jarkesy v. SEC, a case SCOTUS will hear next term.Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events. Follow us on Instagram, Twitter, Threads, and Bluesky

Rachel Maddow, host of the number one hit podcast, Bagman, and Rachel Maddow Presents Ultra, is back at the mic with a new chart-topping series from MSNBC, Rachel Maddow Presents Deja News. In each episode, Rachel and co-host Isaac Davey Aronson examine the ways history repeats itself in today's headlines. New episodes drop on Mondays. Search for Deja News and listen now. 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. And today we have our term recap. It seems like the October term 2022 has finally come to a screeching halt, which means now is the time to step back and think about this truly insane term in context. So to do that, we are your hosts. I'm Kate Shaw.

I'm Alyssa Murray. And I'm Leah Littman. And the format today is a little loosey-goosey, kind of like this court's attachment to precedent and constitutional law more generally. So it's really just going to be about our feelings, much like the court's jurisprudence. And we are just going to kvetch and talk and sort of draw some big themes and sort of sketch out where we thought this term went. Similar to the Supreme Court, our feelings are going to be a little bit raw, and we're still working through them because we are also recording this episode on Friday, mere hours after we just received the final opinions of the term.

And there is so much to say about this term. Maybe we can start by talking about the justices themselves. Yes. Okay, great. Let's talk about them. Great. Great. Let's go. Like a good reality television show reunion, we're just going to start by doing our reads and psychoanalyses of the different cast members. So one observation that I have from the most recent term is I'm pretty sure that both the chief and his fanboy, Brett Kavanaugh, they still read the New York Times. and they care what people think about them. And they are actively in the business of cultivating a more favorable impression of the court while still getting away with murder.

So some of the cases that I think of along these lines are the Moore Independent State Legislature case, as well as the Voting Rights Act opinion, the ICWA opinion. All of these cases, I think, didn't completely shut the door to more deranged things that might follow. And in the case of Moore, I think, concretized or changed the law in a way that is potentially concerning. I mean, think back to most people are familiar with Bush versus Gore and how that's rightfully perceived as kind of this outlandish, insane decision. And people have spent the last 20 decades talking about how Rehnquist concurrence and Bush versus Gore is insane. It feels like 20 decades, but I think only 20 years.

Again, a little raw, a little raw. I feel like I've aged 2,000 years over the last term. Same, Leah. Oh, my God. But, you know, again, like people were talking about the Rehnquist concurrence and it being insane, and then this majority opinion kind of comes around and rejects an even more insane version of independent state legislature theory while leaving the door open for the Rehnquist version of independent state legislature. And then the court is greeted as liberators. But the Times observation, I think, is right and smart.

And it distinguishes them from the other conservatives. I think that Thomas and Gorsuch and Alito not only don't read, I don't think, mainstream media, they, to the extent they ever dip into it. Did I pause there? Kate, there was a pause. There was a pause. Well, we know that's true about history, like works of actual rigorous historical research. Definitely don't read those.

I think mainstream media, that's true about too. And to the extent they ever do look at it, like obviously we do know from reporting that Alito at one point asked the public information office at the court to begin compiling clips about him. And he, of course, responds sometimes to his critics and adversaries. But he, of course, is the thinnest skinned person alive and so takes real affront to criticism. But I actually think that like Thomas and Gorsuch like don't read their press, enjoy obviously being provocateurs. I guess I do think that Gorsuch might relish, I mean, he loves sort of viewing himself as an iconoclast. And so I think he really enjoys this conception of self that he holds and projects out that he is a profoundly independent thinker and he will break from conservative orthodoxy in particular on cases involving federal Indian law. But I don't think he actually takes in much press commentary.

But I think that Roberts and Kavanaugh, you're right, do. And that has an important constraining effect. I mean, they're still doing awful, awful things. But they're looking over their shoulder when they do it. And that might constrain them in some form. I want to push back slightly. I mean, the constraints are really minimal here. I mean, like this is literally like using a shoelace for a seatbelt, right? Like, yes,

I think they are concerned with public opinion, but they're more concerned with what they can get away with. So the run up to the last week of the term, you know, we had Merrill versus Milligan. We had Moore. Like, it seemed like, OK, like, maybe it's not going to be super crazy. I never said that because I understand who these people are. And at the end, this was full on legal conservatism and full flower. And like, that's what they want. Like, it's sort of a feint, like, you know, a sleight of hand. Here's some normalcy or normal-ish. And again, the Overton window has been open so wide.

I mean, as you say, in War vs. Harper, we've now credited the completely bonkers Rehnquist concurrence as being normal, and it's not. We've just discredited something even more batshit. But look, we know what these people are capable of. And they did still, the majority opinion in Allen, not finding the Voting Rights Act unconstitutional, which they might easily have done. Like they could have done that. Put me in coach. Yes, Leah, go. Yes, please. So I think that what they are doing, though, is even in the opinions where they're, quote, not doing insane shit and they are depicted in that way, they are actually transforming

the law to plant seeds for potentially doing more destructive things later on in the event that people start to lose their focus or attention on the court. I think the independent state legislature case is like that. It reminds me of what the chief did in the lead up to striking down the Voting Rights Act in Shelby County versus Holder, basically utterly misreading the court's prior cases and misconstruing them before setting up the kill shot against the Voting Rights Act. I take it that that's a possibility in the affirmative action cases as well, where he is, again, raising the specter of the core potentially invalidating facially neutral programs that are also designed to achieve racial diversity in educational settings. Thomas Jefferson High School.

Exactly. And this is what he had wanted to do in the abortion cases. This is what he did in the Voting Rights Act cases. And so to me, like, I am just worried that I agree they do read the New York Times. I agree that that is like something of a constraint, but it's temporary. It's fickle. And it's very contingent on, again, like the conditions. Paying attention. Yeah. Yeah.

No, and I think to throw one more thing into the mix, the Kavanaugh concurrence, which is the fifth vote that actually allows Section 2 of the Voting Rights Act to remain vital and meaningful and constitutional. Kavanaugh, of course, writes separately to concur. I want to talk about the kind of emergence of Kavanaugh as this big concurrer. you know, has this sort of ominous language about how, well, maybe it's the case that, you know, in 1982, this effects test was permissible and constitutional, but it might not be today. But Alabama didn't raise that argument. So we're not going to address it here, right? Like he's sympathetically discussing something that Thomas says in his dissent in that case, and seeming to invite arguments along those lines. So I think that there's probably even more of these like potential, you know, kind of ticking time bombs and opinions, and whether or not they go off,

I think very much will be determined based on public interest and attention to the court. Well, I mean, that's a standard move, though. I mean, we saw Alito do that and Gundy, like, you know, no, I'm not going to vote for the sex offender here. But I'm still curious about dismantling the administrative state. Bring me a better case with a better defendant. And here we are. But I'm glad you mentioned the Kavanaugh concurrences, Kate, because I did think it was really interesting that most of his energy seemed to be in synthesizing and repeating and making bullet points of other people's past arguments and passing them off as concurrence. What a weird move. What a weird fucking move. He's so weird.

Lucky Peter, the piggybacker, that guy in all of your law school classes who's like, if I could just add on for a second while repackaging what you said in a slightly dumber and more ominous way. But without even attempting to offer his own prose, he literally includes bullet points of quotes from predecessors on the court in various opinions. It's really weird. But the thing is,

so we don't do a lot of, I'm actually not sure we've ever done any nicknames for Kavanaugh. And I don't think- Coach! Coach! Coach! Okay, sorry. That's true.

But not the ones that are plays on his name. He's for sure Coach Kavanaugh and Coach K. But I do think, I wonder whether there's something to be made of. He really has emerged as this big concurrer,

which is just so perfect for him. The great concurrer. Like the great... In his own mind. How lame this will be. Who got great concurring? Nobody. No, never. And he won't either. Felix Frankfurter was like, I tried this. It didn't work. Great concurrer. I mean, yeah.

Possible nicknames for our new great concurrer are Concavina, and he's written a lot of Kevcurrences. I don't know. Kevcurrences. How do they strike you? Kevcurrences. Kevcurrences. Kevcurrences. For sure.

Yeah. Yeah. So those, I mean, there's been a lot of them. And as we were just talking about, like some of them have some pretty ominous notes they strike. There was his significant Dobbs concurrence last term, which sought to blunt the force of the majority opinion, how, you know, convincingly, like not very. But one note that I think links a lot of these concurrences, in addition to, you know, maybe succeeding later arguments that will go further,

is something that Leah, you identified in one of the like, I don't know, 12 episodes we've done in the last 10 days, which is that, you know, he is like trying to ingratiate himself always with everyone, I think in every facet of his life. But in these concurrences, he basically, you know, he will side with the majority, obviously, if he's concurring, but he will either like throw a bone to the descent or basically say, like, I'm really a nice guy to the side he ruled against. And it's just like so transparent and unconvincing. And there's nothing great about this great concurrer. But I do think it's an identity that he is growing into.

And I think it's important these writings, like as dumb as they are, this is like the median justice at this point. And so he's got a lot of power. So we have to take this drivel seriously. The intellectual bar, it turns out, is in hell as well. He concurred in a number of cases, Milligan, the Voting Rights Act case, the ICWA cases, and also in the affirmative action cases. And I thought this was really interesting that he opened his mouth to have anything to say in this case.

It was mostly sucking up to the dissenters, like, I understand where you're coming from. I'm not completely terrible. But and then he talked about how, you know, affirmative action has no limiting principle, and it's just going to go on forever. And wouldn't that be terrible? And I literally was thinking back to our interview with Ruth Marcus about her book, Supreme Ambition. I was like, is this man literally opening his back to our interview with Ruth Marcus about her book, Supreme Ambition. I was like, is this man literally opening his mouth to talk about affirmative action when he literally walked his way into a Kaczynski clerkship, which then fed him to a Kennedy clerkship on the basis of being a good pickup basketball player? Yes, he is. Like that's affirmative action for frat boys.

No, that's what we call meritocracy, Melissa. Oh, because his jump shot was so good. Exactly. Exactly. And it's like, just like seriously sit down. Like he will never sit down. He cannot help himself. So we, I think would be remiss of course, to also not say a little bit about what we learned about our favorite hate listening justice, Samuel Alito, who this term acquired a few additional nicknames ranging from Salmon Lito to Scandalito. My favorite. Great. Great. You like Scandalito? I love it. I love it. Every time you say Scandalito, I just think of him in an all-white suit and a white hat like Olivia Pope calling Leonard Leo and going, it's handled. Sam Alito couldn't clean up anything because what we also learned this term is he is a little bit of a bitch from his Wall Street Journal op-ed, his Wall Street Journal interview, right? Like all of the other things.

A little bit precious, a little bit touchy. A little bit sensitive because the man cannot handle criticism for the life of him. Also recall his exchanges with Solicitor General Prelogger, you know, from both this term and last in which, you in which he's like, I didn't say that. I didn't say that. Why isn't this fair? I'm going to be misunderstood, and all of those other rants. I did, however, leave out one additional nickname we had bestowed on him, and that, of course, is Aliko. This was initially bestowed on him after the New York Times reporting about how he allegedly tipped off his matchmade billionaire rich people couple. His sponsor.

His sponsor. I'm sorry. Save the children. If you're a billionaire, for the cost of a cup of coffee. Save a Supreme Court justice. You can own a Supreme Court justice. How he allegedly tipped off the rights about the result in Hobby Lobby. And then, of course, we have been coming back to the fact

that the Wall Street Journal also seemed to know what was happening in Dobbs and that our little Aliko seems to have quite a cozy relationship with said journal. It wasn't all grievance and bad concurrences, though, on the court. We did have some highlights this year, and I'm going to say the rookie of the year here was one, Ketanji Brown-Jackson. Big ups to her. She hit the ground running. She was not like, you know what, I'm just going to read the room, see how things are. She was like, nope, nope, nope. I'm going to come out here. I've got stuff to say. I've got questions to ask. Apparently, there have been so many studies of how much she talks. The fact of a Black woman talking on the Supreme Court really seems to have occupied a lot of people's attentions. Sorry,

but we're here and we're not stopping. She's going to talk forever. Good for her. Also, this is what it looks and sounds like when you're actually qualified and prepared for the job. Thank you. Right? And you have actually succeeded on merit. Some of the reporting suggests that members of the court might be a little peeved that she's been so confident, like talk so much. And to them, I say, sorry, not sorry, like whatever. She's fantastic. She's amazing. She wants to talk, let her talk, let her have all of the things. She's absolutely fantastic. And in every argument she's been active in, I think that she has provided the kind of defining set of questions and hypotheticals. Like if, yeah, she has talked, she's been active. Affirmative action, that hypothetical was devastating to the point where John Roberts had to include that language about diversity statements,

basically, in the majority opinion. Because she was right. Like, if you do this and you don't let the Black person talk about her family history, you have a bigger equal protection problem and possibly a First Amendment problem. And it was like, oh, yeah. And her It's a Wonderful Life Santa hypo was what triggered Sam Alito into Black Santa. Black Santa. Black Santa. Black Santa Con.

It's clear she really triggers them. She does. Yeah. And, you know, it's also clear her questions are- It's almost like they've never worked with Black women before. Almost. We know one of them has. So moving past that, it is clear her questions do really kind of shift the terms of the debate and frame the argument. You know, we mentioned the affirmative action question, also the 303 creative question. That question actually appeared in Justice Sotomayor's dissent as well. Also, Justice Jackson's questions that really affected the resolution of the Voting Rights Act case, right, where she read out loud the reports of the Reconstruction Congress and how the Reconstruction Congress understood the 14th Amendment to allow for race conscious remedies. Also, her questions in the important spending clause civil rights case about how the general civil rights statute was skeptical about state courts ability to enforce federal rights. And she ended up authoring that opinion that had kind of a surprising outcome in that case. Yeah. I mean, I just think that she kind of like also substantively has reoriented a lot of debates specifically around a proper understanding of the Reconstruction Amendment.

So both the oral argument interventions that we were just talking about, but like her unbelievable dissent in the affirmative action cases. She also, I think, in her writings has done some subtle but really important things. She uses the term framers without modification to describe the authors of the Reconstruction Amendments, reminding us that they should occupy the same place in our kind of constitutional constellation as the people who drafted the original Constitution. In many ways, they are far more important authors and framers. So she doesn't say like the author. I mean, sometimes she does say like John Bingham talks about drafting the 14th Amendment, but sometimes she just says framers. And she's talking about 1868, right? And that not 1789.

And that is so meaningful and powerful. And then in other ways, I think her word choices are significant and meaningful. So she has a footnote in this immigration case, Santos-Zacaria, in which she says this opinion uses the term non-citizen as equivalent to the statutory term alien. A lot of immigration statutes still use the term alien. She is in command of her own word choices, and she doesn't have to use those so long as she tells us what she means. And so I thought that was really powerful and like efficient. And she also uses the correct gender pronouns for the transgender plaintiff in the case. And I just thought like all those choices. So we have like substantive, but also, you know, just kind of rhetorical choices that were really powerful and meaningful. And the kind of on the word choice

point, other justices made word choices too throughout the term. So Barrett has an immigration opinion in which she does refer to non-citizens sometimes as non-citizens, but also as aliens. But you know, these rhetorical choices I think matter. And I really just was like so struck by Jackson's throughout the term. It strikes me thinking when you talked about her use of the term non-citizen in Santos Sicario reminded me of when Justice Sotomayor first came to the court and she specifically used the term undocumented person as opposed to illegal alien in a decision. And I just wonder, like, I really hope that those two are hanging out at one first street.

I think it'd be, I'd watch that show. I would like to join. Can we get an invitation if they are? Tea with Sotomayor and KBJ, I'd be down for sure. So in addition to the amazingness that was Ketanji Brown Jackson, we had some amazing reporting about the court. And interestingly, it didn't necessarily come from the court's usual beat reporters. So there was back in November, the New York Times story by Jodi Kantor and Joe Becker about the effort to curry influence with Supreme Court justice. I mean, I don't know what other way to describe it.

It was sort of framed around the prospect of an earlier leak in a high profile case, Hobby Lobby versus Burwell. But the underlying point was that there was a conservative group that very assiduously planned and orchestrated efforts to get in contact with and to cultivate as friends, Supreme Court justices, and perhaps to bolster their resolve to stay the conservative course. And as part of this effort to buck up the conservatives, like this group actually bought an entire building across the street from the Supreme Court. So they'd have more opportunities to hang out with justices by casually running into them on the way to Starbucks or whatever. So that was like sort of the first opening salvo. And then

as the year continued, and as we went into 2023, there was even more stuff. There was Justice Thomas and Harlan Crowe. There was that really fucked up pastoral oil painting that looks like a photograph. There was the fact that Harlan Crowe bought Clarence Thomas's mom's house, leaving aside that like half of Black America was like, why was your mother living in a house that was so dilapidated that a billionaire had to come in and renovate it? Like, that's a separate problem. There was also the issue of Harlan Crowe paying for Justice Thomas's grandnephew's school fees. At the same time, Justice Thomas was apparently working on his concurrence in students for fair admissions, bemoaning affirmative action as unmerited largesse that white people give to brown people.

No irony at all. This reporting is so, I think, transformational and important to the public's understanding about the court and its justices. And I think undergirding a lot of the rightful public scrutiny that the court now is facing. You know, the New York Times story, Melissa, that you were recounting documented a strategy known as Operation Higher Court that was literally part of a coordinated influence and access campaign directed at the court's Republican appointees. And subsequent reporting has talked about, you know, Leonard Leo's role in all of this, you know, matchmaking the justices with different billionaire benefactors

to basically gift them affirmation and validation and free personal jet trips if they are kind of staying the course. Or you have the story about Leonard Leo giving Ginny Thomas an additional $25,000 while directing there should be no mention of Ginny, of course, you know, for Ginny Thomas an additional $25,000 while directing there should be no mention of Ginny, of course, you know, for Ginny's lobbying role. You also have the stories documenting the justices kind of junkets abroad with conservative Republican leaning Republican funded schools, you know, with big centers that are founded in part by conservative donors money. You know, this, of course, spawned the Fantastico, reporting about how Justice Gorsuch was basically given trips to Italy

under the guise of teaching a class in the mornings in Italy. And Neil Gorsuch, really Neil Gorsuch, in a way that makes the F-word additionally appropriate for his opinion in 303 Creative. Here's what he did to one of the most famous lines in all of constitutional law, a line from the Supreme Court's decision in West Virginia versus Barnett that had invalidated as unconstitutional mandatory pledges of allegiance and flag salutes in public schools. Here's what the court had said in Barnett, quote, if there is any fixed star in our constitutional constellation,

it is that no official higher petty can prescribe which shall be orthodox in politics, nationalism, religion, or other matters of opinion or for citizens to confess by word or act their faith therein. End quote. Now here's Neil Gorsuch's take on that quote from 303 Creative. Quote, for all of these reasons, if there is any fixed star in our constitutional constellation, it is the principle that the government may not interfere with an uninhibited marketplace of ideas. End quote. Hmm. That sounds a little bit different. The Anne Randian of constitutional law? Anyways, you know how that second quote sounds? Fantastico. And there is so much of this, I mean, from ProPublica and other outlets that I think has really rightfully led people to think about the court as being led by a group of

individuals who are people susceptible to the kinds of influence that people are and the justices as political officials who engage in the kind of hobnobbing and networking that people used to think that the court was above or just divorced from. And the justices hate that so much. Nothing drives them crazy. And that makes me love it even more. Just thinking about the justices as individuals, the court returned for the first time post-COVID to the previous practice or tradition of delivering bench statements. So rather than the justices just like uploading a PDF of their final opinions on decision day, they still do that. But also they are now from the bench reading usually summaries of their opinions. I haven't been in the court for any of those opinion handouts, as people call them this term. But one thing the court didn't decide to do was to extend

the kind of expanded access to the courtroom audio that it had granted in allowing the continued live streaming of the oral arguments to extend to the handouts. So we don't actually know, if we weren't in the courtroom, what the justices said about their opinions, in particular in this really momentous last couple of weeks of the term. And it's an enormous disservice. And it's so stupid. There's no reason that they have the audio. They obviously have the technological capability to just upload these audio files like they do the files of oral arguments. And they just refused to do it. And I don't know that there's always much of interest in those. But I did sort of hear through the grapevine that Justice Thomas was pretty interesting concurring from the bench. So maybe he's like a little threatened by Kavanaugh. Which almost never happened. I know, Kavanaugh's not the only great concurrer. Kavanaugh's definitely writing this down for next term.

Exactly. He's like, oh, I could do it. Write big concurrence. Read it from the bench. But Thomas definitely did that in his big concurrence in the affirmative action cases. And apparently it was interesting and not verbatim, which they sometimes aren't, his concurrence. And so I'd love to know what he said. But guess what? I can't. Not until the court decides we get access like months from now.

So it's just like another example of their reflexive desire to be non-transparent whenever they think they can get away with it. And here they think people don't care that much. And maybe that's true, but like, there's truly no reason we shouldn't have this audio because we could play it. Like, it would be nice to know. I think that's why they don't want us to have it. Ah, we are the pros. Here, it's us. It's us. So maybe now we can kind of shift to more substantive themes that emerged from the court's term, one of which is, of course, that the justices' feelings, or fifis, as we've called them, are now the law, or at least Trump, the conventional indicia of what law is. One of the big cases is, of course, the student loan case, in which that's the issue where the

court basically said, because this program has given us and other Republicans feelings, it is presumptively illegal. I think 303 Creative is another example of this, where they kind of just said, well, if you have feelings about gay people, we're here for your feelings. Exactly. You have a receptive audience. Exactly. Your feelings are now constitutionally protected because they are mine, too. Actually, your feelings are constitutional law. Exactly. there are other cases I think where like that's also kind of true like the loan cases the court sort of uses this you know kind of very feeling driven version of the major questions doctrine which was also the ostensible basis on which the court struck down the clean power plan in West Virginia versus EPA last term the Sackett case invalidating this wetlands rule wasn't exactly

a major questions case they use this like clear statement approach, but it was the same thing, different packaging, but also pretty feelings driven, right? Like it seems like wrong for these like, you know, hardworking landowners who just like want to dump a lot of gravel in the land to have to go through this arduous process. Like there's all this luxuriating in the logistical and administrative hurdles that the government would impose on these individuals before they could like dump a lot of shit that might get into the waters. And that too, again, it's like packaged differently. But I think feelings really underlie that Alito opinion. What was that book?

Was it by Lois Lowry, The Giver, where there's like an empath who like absorbs all the feelings? That's a great book. Basically, the court is the giver for all conservatives and just absorbs all their feelings. Like they're basically empathing everything in the conservative legal movement and then expressing it out as constitutional law. And we're all just like collateral damage. Yeah. It's so striking. Like with Thomas, I mean, this is a man who needs not a permanent seat on the highest court in the land,

but a lot of therapy to work through childhood trauma that is serious. I mean, I've read all the biographies. I've listened to all the podcasts. I mean, it strikes me that this is a man who had a really traumatic childhood, and I feel terrible for him for it, but I feel terrible for us that we are literally living with the residue of his psychological trauma. Another term theme I want to identify is the court's penchant for historical fiction. And there's good historical fiction. There's a lot of great Regency romances that I think we could recommend to the court, some great books on bookshop.org. But no, the court seems to be using history in a very fictional way, perhaps rewriting and writing its own historical fiction using the

14th Amendment primarily, but like that seems to be the principal text. And some of these accounts of the 14th Amendment were actually kind of bonkers to me. And they have no interest in being consistent here. I mean, like Justice Thomas literally has written about reconstruction and redemption and racial violence in the context of the Second Amendment, but has no understanding of how that might also relate to issues around affirmative action or voting rights or anything else. I mean, so, like, seriously, if you're going to read, read broadly, like, and if you're going to write historical fiction, do the work and be an historian and not just one of these armchair historians. I'm going to fast forward for a moment to something that we'll talk about at the end, which is a couple of big cases we're going to be watching closely for next term. But like, the dread I feel with what they are going to do with the history of domestic violence laws, like in the Second Amendment case, Rahimi, which they have just agreed to take up. Like, I just want to bury my head in the sand until that case is done and like never read a word. Let's remind people what Rahimi is. Rahimi is the challenge to the federal

law that makes it a crime for individuals subject to domestic violence restraining orders to possess a firearm. And the U.S. Court of Appeals for the Fifth Circuit, relying on the Supreme Court's decision and methodology from Bruin, struck down that law, basically saying there isn't a longstanding history and tradition of criminalizing domestic violence, regulating domestic violence, or disarming domestic abusers. So, you know. And look, like, it could be that like a faithful application of their truly deranged method, like, yeah, like we don't have because we didn't actually conceive of it as a crime, a robust tradition of disarming abusers. And like,

if that's what they think determines the present constitutionality of a law like this one, they're going to strike it down here. I I do wonder whether, to return to our earlier discussion of the kind of, you know, New York Times effect, whether Roberts and Kavanaugh would be sufficiently worried about just like how savagely critiqued they will be if they decide to strike this law down, like they might try to find an out. I think it's possible. Well, he is a father of daughters and hired the first all-female class of law clerks. So I'm sure good things are only to come from that chambers. But if that does happen, that would only underscore something that we pointed out when the court did this in Bruin, which is the manipulability of that methodology. It's not like that methodology

is more constraining than alternative, you know, common law, more precedent-focused ones, because the court has considerable flexibility and choices about how to characterize the relevant tradition, whether to focus on crimes regulating domestic violence, or whether instead to focus on crimes regulating individuals as particularly dangerous or subject to other, you know, federal criminal laws. So we shall see. To not put too fine a point on it, that exact line of discussion is very evident in a recent order dismissing a case in the Southern District of Mississippi. The order was written by Judge Carlton Reeves. And essentially, it's just sort of a takedown of the history and tradition method of interpreting the Second Amendment. And again,

Judge Reeves is phenomenal. He was the person who wrote the district court opinion initially in joining the Mississippi law that was challenged in Dobbs and ultimately upheld by this court. It is just like a fascinating opinion that is just dripping with contempt in a way that like I feel like really our podcast also has channeled for the Supreme Court's method in Bruin. And yet as a district court judge, he sort of has to labor under it in a way that must be unbelievably hard and makes me really glad we don't have to be judges. But it's a pretty amazing opinion. The case is called United States versus Bullock and it's written by Carlton Reeves. And in that opinion, he invalidates the federal prohibition on possessing a firearm by anyone, you know, convicted of a felony, basically first criticizing the method and noting its problems before saying, and here's what I think a faithful application of it results in.

The opinion is just absolutely incredible. He has this line likening the Bruin methodology to the court's categorical approach or modified categorical approach from the Armed Career Criminal Act, which might be just for me and I found super amusing, but- Just for you. It's not for anyone else. It's incredible. That's just an amazing biting critique of the methodology in Broome. Okay. But some additional themes from this term. One is, I think this term has underscored what was clear before, namely the shadow docket is fucking out of control and the justices have no idea or any set of rules about when exactly to grant emergency relief and when not, you know, because you have the court in some cases granting emergency relief, requiring the

administration to maintain the Title 42 program, even though it ultimately dismissed that case, and even though it was never going to weigh in on whether that program was ultimately lawful. Similarly, you have the court essentially suspending the operation of Section 2 of the Voting Rights Act before basically saying, no, no, Section 2 of the Voting Rights Act is here to stay, and those maps actually are illegal. You had the court enjoining Biden's enforcement immigration guidelines before ultimately concluding the states didn't have standing to challenge it. You had the court staying the absolutely insane Mifepristone orders. I can't believe that was also this term, my God. And just so much happening on the shadow docket that reveals

it's not totally clear that the court knows when it should be granting relief and when it shouldn't be. One other note, we mentioned Solicitor General Prelogger before. I think this term underscored she is fantastic and she is doing wonderful things in that office. she basically proposed the route of least possible damage to the court, and they ended up taking it and avoiding potentially larger determinations. I think the independent state legislator case is an example of that. I think less higher profile cases like Groff on religious accommodations under Title VII is an example. I think the internet cases, Section 230 cases are an example of that. But I think that was also something I thought about this term. A couple of other things I wanted to note. One is

the pair of cases that we've talked about a few times, but I think could get lost in the end of term shuffle are Percoco and Simonelli. These are the two cases in which the court unanimously reverses these political corruption convictions. You know, the facts are a little bit different, the legal theories and the charges are a little bit different. The legal theories and the charges are a little bit different. But the outcome is the same and is consistent with a line of cases, including cases like Kelly and McDonald and other cases that aren't like straight political corruption criminal cases, but are campaign finance cases like Citizens United,

that I think need to be viewed somewhat differently. I mean, I despise these cases. And I feel like the fact that there are many of them, including these two unanimous, basically, just like drives me so crazy. I don't understand why the liberal justices can't see how dangerous these cases are in this line of reasoning is. But also like this is a court that has very conveniently narrowed to the point of almost extinguishing the conception of political corruption that our laws can actually implement. And it is just interesting to review these cases and the line of cases in which they fall against the revelations that we were talking about earlier

about the pretty clearly corrupt activities of some of the justices themselves. Okay, that's one point I wanted to make. Another is, okay, so we have obviously Sam Alito taking to the pages of the Wall Street Journal. What would be the liberal justices version of this? And can we, okay, so like, yes, I mean, this is like a self-serving setup, obviously. Melissa is gesturing like, I'm sitting right here. We're right here. Yeah. So guys want to answer my question. How should the liberal justices decide there's a new medium they should take full advantage of apart from just penning these amazing dissents? What could that be?

I think they all know that they have an open invitation to come on Strict Scrutiny. I will give you the microphone. We can get out of the way and you can just spit bars for 30 minutes. Like, do whatever you want. They could just guest host an episode. That's right. We could just listen. Oh, that's an amazing idea. Or live episode at the court. Yeah, live episode at the court. And I promise, like promise so hard, I would not ask them which of their colleagues they most want to slap or give a swirly to, right? I want us to do that.

We would be so good. We'd be so good. We'd be so good. We'd be so good. But I am curious. So, okay. So that would be great. I hope this happens. And I am just generally curious whether we will see, I mean, at a certain point, it can't just be like this completely asymmetrical use of other mechanisms to reach the public, or maybe it will be, but Sam Alito is going to keep running his mouth in places like law school campuses and the Wall Street Journal page. And at some point, somebody needs to respond. Here's the thing, Kate. I think there's a real danger for at least two of the three of them doing so. Because again, no person of color on that court can get away with what Sam Alito and Clarence Thomas, and yes, I know what I said,

can get away with what they've done. And like going to the Wall Street Journal and talking about it and complaining of it. Like I think if Justice Sotomayor went to Adam Liptak and gave him an exclusive interview or even like a sort of shadowy interview, she would be excoriated. They have to remain so above the fray. And that's what's so galling about this crap. I mean, like, Alito is holding a whole ass fish and doesn't give a fuck who knows what he's doing. And the rest of them are like, you know, I went on this little boondoggle with this school,

or I went here, or, you know, like, I received $12,000. Kagan is like, Russ and Daughters literally produced the smoked salmon that came from that fucking fish and I can't eat it on a bagel because I'm ethical like that. I'm not surprised by this. I think they're like a different set of rules for different people. That's fair. So maybe Kagan

could step up. I mean, I hope she's at least eating the lox now. So I don't think that's going to happen. Maybe I can offer some additional reasons. You know, one is that's not who Democrats appoint to the federal courts, right? Even while you have Republicans absolutely having a fucking meltdown about, you know, like Dale Ho's nomination and confirmation to the Southern District of New York. Die mad. Judge Dale Ho is not going to be running off to the New York Times bitching about how insane Senator Kennedy and Senator Graham

were at his confirmation hearings. Because at bottom, the Democrats are appointing institutionalists. Even though they are institutionalists with different professional backgrounds, and we have seen from federal judges before, they are still at bottom institutionalists. They are not appointing and confirming shit posters or just posters. Like, that are not predisposed to agree with them. Whereas Sam Alito can throw all the temper tantrums that he wants because the chief justice, Justice Kavanaugh, Justice Barrett, like their views about the world align with Justice Alito's. So in order to get them to move away from his views, a lot has to happen. And he can spend

down all of that capital and be just the pettiest little bitch that he wants to. And I don't think that's going to really affect their behavior in cases. Whereas I think Justice Kagan, Justice Sotomayor, Justice Jackson, they can't, right, alienate those justices because those justices already feel like they're making some big concession by following the law and not blowing shit up and say, allowing Democratic presidents to govern or allowing the Voting Rights Act to be enforced. It's So depressing. All right, we should do a rundown of other themes from this term. And I'm going to say, to me, the overarching theme of this term, whether they intended it or not, I think they kind of intended it, was race.

There were so many cases that were explicitly about race and also implicitly about race. So, you know, the ICWA cases were obviously about whether we were going to strip tribes of sovereignty, but also about whether we should think about tribal status as a racial category as opposed to a political category. The affirmative action cases were obviously about race. I maintain, and again, I will die on this hill, that the student loan cases have an element of racial grievance to them. And you can see the chief justices colloquy and oral argument about the hypothetical lawn care service business owner. I just think it was all over. And it's not surprising to me that this is such a huge theme. It's still so embedded in the way we talk to each other, what we talk about. And what's just interesting here is that in all of the opportunities it had to address this issue, the court seemed to be saying, we don't need to talk about race. We don't need to talk about the

continued residue of our racial history. Like we can just like, you know, things are better, we keep moving on. And so, you know, race versus this kind of completely lopsided vision of racial progress was really striking. Another theme is rights are great unless you maybe try to exercise them. So I am still not over the Quartz-Havies case in which it said legally innocent people who were convicted of something that maybe isn't a crime cannot ask a federal court to correct their sentence if they have already asked the federal court once to do so. I think that decision is part of a really worrying trend that we saw last term when the court made it more difficult to enforce Miranda rights, when the court made it

more difficult to sue federal officials who violate your constitutional rights. And I think this is a really deeply troubling pattern in the court's cases that is likely to continue in the near future. I do think that one case that might have been a really important entry in that category was Tulevsky. And I do think the kind of power of Justice Jackson, both at the oral argument and in what she wrote, I would not at all be surprised if this was, you know, kind of an internal decisional history in which votes moved because of that writing. But I do think that she felt like she had an impact. And I do think if Tulevsky had gone the other way, it would have had enormous impact in terms of actually think if Tulefsky had gone the other way, it would have had enormous impact in terms of actually eliminating the ability to enforce a huge swath of important rights.

Another theme from this term is democracy constitutional. And I think it's still an open question. The court did in Merrill versus Milligan or Allen versus Milligan make clear that the Voting Rights Act remains a means of challenging racial gerrymanders. But again, I come back to like, I don't know that this was a celebration per se, like this is what we deserved all along. And again, I think the court actually made democracy more elusive by allowing those racially gerrymandered maps to go into effect not only in Alabama, but also in Louisiana, and also in Georgia and some other jurisdictions, I think, took their cues from the court and its shadow docket decisions in the Milligan case.

So is democracy constitutional? Maybe it doesn't matter if you get to kneecap it in the first instance before the midterm elections. But Moore versus Harper, again, is democracy constitutional? Well, we're going to find out. But at least here, the court has rejected the most extreme anti-democratic theories in favor of the less extreme anti-democratic theories that it has basically opened the door to. So more to come on whether democracy is a-okay. So stare decisis, what about this term and stare decisis? Obviously, at the end of last term, the court overrules Roe and Casey. And the public makes pretty clear that the court is sort of wildly unpopular in doing those things. And it does feel to me like that has reverberated inside the Supreme Court. And so they have bent over backwards to say whatever we're doing in a lot of cases this term, we are not overruling precedents. So that I think

has been true in high profile cases, like we've now talked about a bunch of the affirmative action cases, the Roberts opinion says, we're not overruling Grutter, we're not overruling Bakke, but they are don't you believe that? Don't. And it's also true in lower profile cases. You know, we mentioned that the Solicitor General, Elizabeth Prelogger, really blunted the possible impact of this decision, Groff versus DeJoy, a case about religious accommodations and sort of federal laws requirement of accommodations of religious practice at work. And that could have been a case in which the Supreme Court overruled this 70s era precedent called Hardison that had set forth basically a way for courts to evaluate whether employers were accommodating religious objections

or religious practice needs or requirements in ways that were, you know, not unduly burdensome to business needs. And Sam Alita wrote the opinion that purported to uphold Hardison, but to clarify the test that it set forth, not to overrule it. And I'm still sort of puzzling over what to make of that case, quite honestly, because like, again, it wasn't one of the biggest cases in the last couple of days of the term. But it does feel like it actually really does meaningfully change the test. And so like, I guess like what is gained and what is lost when they say all the time, we're not overruling our prior cases, but they completely change the test set forth in those

prior cases. Would it be better with the public have a more kind of accurate sense of what the court is doing if they just set it and let the kind of political reaction fully appreciate the magnitude of what they had done? I mean, maybe, but I also think, you know, to them, it's not just enough to win and get what they want. It's like they also need to assert the power to tell you that that's not actually what's happening and not to believe your lying eyes. I feel like that is just one of the flexes that they engage in as well. So maybe since on a recent episode, we mentioned liberal firebrand Joseph Robinette Biden recognizing that this is indeed not a normal court.

We do want to update this because it seems he is kind of on the cusp of a revelation about the court, but not all the way there. So let's play this clip. And then I have a recommendation for what might help. I think if we start the process of trying to expand the court, we're going to politicize them maybe forever in a way that is not healthy. So my recommendation is he needs to listen to the full strict scrutiny catalog

before he reaches that bottom line. So he actually did this on Thursday night on MSNBC. And when I went to MSNBC that night, there was like a big chalkboard. It said, welcome, President Biden. And I was like, I just missed him, which is really sad. You need a chalkboard that says, welcome, Melissa Marie. I've never gotten one at MSNBC. I'm just going to put that out there. But he said that after the court had essentially gutted affirmative action. But I wonder if his views of the court might have changed after Friday when the court essentially gutted his student loan relief plan that was the

linchpin of his presidential campaign and likely would have been a huge feather in his cap as he goes into the reelection cycle. So maybe his revelation will come earlier than you think, Leah. I certainly hope so, because I think it would be really good for our democracy or what's left of it, such as it is for the president and, you know, Democratic leaders more generally to kind of understand exactly what this court is. Speaking of what this court is, so on numerous episodes over the last year, we have played some of the funnier or more notable kind of digs or reads that the justices have made at Oral Argument. So maybe we can just quickly

do a highlight reel of all those digs and reads by the justices. So I'm not sure I get it, Mr. Clement. So 601 sends you to 602 because 602 tells you what salary basis means. That's, we can all agree on. Okay, but can I just stop you to say... Not really. Okay. So what does salary basis mean according to 602? This is quite a theory you have. This is a muni- Please stop. General, I thought I'd just give you a chance to respond to a reaction I had to your brief. And the reaction was that there is an extraordinary amount of Texas's view of policy in your brief.

Two parts, Your Honor. The first is I agree that those observations, those statements of Texas's views have nothing to do with non-delegation, anti-commandeering, or Article I challenges whatsoever. Those live or die on various legal principles that are not those. They're just atmosphere.

They're in part atmosphere, yes, Your Honor. I mean, you're right about the levels of scrutiny, but that would be peculiar, wouldn't it? Like white men get the thumb on the scale, but people who have been kicked in the teeth by our society for centuries do not? Well, of course, our position is that white men could not get a thumb on the scale. That sounds like a racial classification. Men could, perhaps, but not white men. I don't think there's any level that justifies explicit racial classifications, but I'm going to fight the hypothetical one more time if you'll let me. No, I don't think I will.

So let me just go on and ask you a couple of other things. She provided a number of hypotheticals, so in terms of assuming... Just one, Ms. Webb. Let's say that I'm both a Prince fan, which I was in the 80s, and — No longer? Well, so, only on Thursday night. Justice O'Meara? I think my colleague, Justice Thomas, needs a lawyer.

And I'm going to provide it. So that is different from what the Second Circuit said, because I thought the Second Circuit took it out of the analysis entirely, said it was irrelevant to the question. No, and I think that's very unfair to three members of Article 3 who three times said meaning and message is relevant. But we should also include the reads by the advocates directed to the court. And by advocates, I am, of course, referring only to Lisa Black, because she is the only person who would stand up in front of the Supreme Court and talk shit to their faces. So let's play that tape. We have an independent certiorari question that says there's no jurisdiction under Title 18. So you're saying the court just doesn't pass on that? Correct. I mean,

you can do whatever you want, obviously. The actual government argument of government counsel was do not misconstrue this statute because it would be a judicial declaration of war unless Congress gave you that authority. And I read the opinion, but there's nine of you and one of me and you have all the power. So you're going to read the opinion how you want, but I read it on its face to say jurisdiction. There were moments when those lines were delivered in real time when I sort of cringe, but I actually think taking the stock of this last term and going into the summer, I'm really here for it.

Exactly. So that's a good beat to continue on. This was a really off-the-whales term coming on the heels of another off-the-rail term. So we've had two terms in a row where the court has literally been doing the most. And for those who don't follow the court regularly, that is kind of unusual because typically the rhythm has been a really big barn burner of a term, which usually means like one really big barn burner of a case, not abortion and guns and getting rid of the lemon test. Like last term was really big. And typically when you have a big term, it's followed by something a little more muted as the court sort of recalibrates. That was not what we got for October term 2022.

And so the question is, now we've had two barn burner terms. Are there any barns left to burn? Oh, yeah. So what's coming? Okay. All right. So what's on deck for October term 2023? Like, this is a gird your loins moment.

Yes? I mean, I worry that this is the rest of our lives, right? Perpetually staring down the next level of insanity and the next crazies, bag of crazies that this court is going to unleash. Because we've already mentioned that the court decided to hear for next term, the Second Amendment challenge to the federal law prohibiting the possession of firearms by individuals subject to domestic violence restraining orders. They also agreed to hear a major administrative law challenge, Jarkeesy v. SEC, which basically challenges different aspects of the administrative state and whether administrative agencies can impose fines for violating consumer protection

laws. We did a series of episodes with Jon Stewart about this case and the issues that it raises. So if you'd like to learn more about what is potentially in store for next term, check those out. We also are getting actually a case that squarely presents the court with the opportunity to overrule the longstanding precedent of Chevron, which sets forth this idea that courts are supposed to defer to agencies. Chevron has been largely gutted, but overturning it would be still an enormous deal. And the court has been asked to and agreed to decide whether to do that. So that is on deck. I have this feeling that Trump and the Supreme Court will intersect again. I think that there's a chance he tries to take all

the way up some like questions regarding evidence or witnesses in his Florida federal prosecution, or there's a civil suit arising out of his conduct on January 6, then before that is pending in the DC Circuit. I think if he loses there, he'll petition for cert and the court might grant. So I do think there's going to be more Trump kind of mischievous at the Supreme Court in the next year. I just have a feeling. I also think post Moore versus Harper litigation, I don't know how quickly that'll make it back to the court, but I do think that we may get a chance to see both what lower courts make of the courts, I think, very difficult to parse language, in particular in part 5A of the opinion about when a state court interpreting

its own constitution or law exceeds the bounds of judicial review in the estimation of this Supreme Court. So I think that the more question could be back before long, too. Also for next term, I think we have mentioned on previous episodes a case about tester standing, which is basically a question about how civil rights statutes can be enforced. And I am going to lose my damn mind if the court, after saying that Lori Smith, the website designer, had standing this term, blows up tester standing next term. I mean, in 303 Creative, the court kind of embraced the Jennifer Coolidge of season two of White Lotus, the gays are trying to kill me theory

of standing, also known as the she worries theory of standing. Literally in the opinion in 303 Creative, the court said, Lori Smith has standing because she faces an injury since, quote, she worries, end quote, she'll face some consequences for refusing to provide services to same-sex couples for a wedding she's never been asked to provide. And next term, the court may very well say that people who are personally discriminated against in violation of civil rights laws cannot sue, they don't have standing, after they have gone out to uncover violations of those laws. There are also other administrative law cases, in addition to Jarkeesie, in addition to the case about the future of Chevron, a case about the constitutionality

of the funding structure for the CFPB is also on tap for next term. So just all kinds of banana ass stuff is on deck. There's also the potential for a case about Mifepristone. Again, we've heard tons about Mifepristone. And obviously, scientist Matthew Kazmarek has much to say about it. But I think it's very likely that something will filter up to the court on that. And so, again, I think far from settling questions about abortion, this court has simply inflamed the issue and we'll be hearing more about that next year.

So that got bleak. Maybe we should call it there and just explain the structure of our future episodes and what will happen before the court comes back to fuck up all of that shit too. The court finished issuing opinions in argued cases. So they are not going to be hearing arguments or deciding cases that have been subject to argument until October. Unless their billionaire hosts talk about them while they are in Italy or other places. Yes. So who knows what sort of junkets they have in store for them this summer. But while the court isn't, you know, regularly hearing arguments and technically kind of during the regular term, we will still be releasing episodes on Monday, but those episodes are going

to be like strict scrutiny summer school. So consider them a kind of list of what we think should be on your reading list to understand more about the Supreme Court. So we will be doing several conversations with the authors of some fantastic books about the Supreme Court, the conservative legal movement, some of the history behind the Civil War and the Reconstruction Amendments that are relevant to some of the issues that the courts decided. Those episodes will be interspersed with some lookbacks on particular issues that the court decided this past term. So wherever your billionaire benefactor is taking you, be sure to listen in and download those episodes before your personal jet takes off, Sam. And lest you think I was kidding about strict scrutiny going abroad,

I would just note that Taylor Swift does have a European tour scheduled for next summer. So all of you SCOTUS justices who are in the habit of relaxed summer junkets abroad, consider this your warning. I think we're going to leave it there. Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Ashley Mizzuo is our associate producer.

Audio support from Kyle Seglin and Veronica Simonetti. Music by Eddie Cooper. Production support from Michael Martinez, Leo Duran, and Ari Schwartz. And digital support from Amelia Montooth.