Strict Scrutiny - What Fresh Hell Will This Supreme Court Term Bring?

Episode Date: October 2, 2023

It's the start of a new Supreme Court term... and the start of Strict Scrutiny's fifth season! While the cases ahead may seem technical and boring, they're actually quite significant. Melissa, Kate, and Leah preview the first oral arguments the Court will hear in October Term 2023.Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I'm Kate Shaw. I'm Leah Littman. And I'm Melissa Murray. And we are here for the first week of Oral Arguments for October term 2023. And so before we get started, I just want to know, ladies, how was your second summer without rights? Are you

getting used to being a handmaid? Turns out I like having rights. And so it was not the best. Leah? Yeah, I kind of echo Kate. And the world just feels very different now. Like some guy named Travis Kelsey has like the number one podcast in the country. And Republicans are like coming after Taylor Swift. And I just don't know exactly like what is happening. At least the MAGA ones are and it's just it's an odd world. It's an odd world. So you didn't find that Barbie and Renaissance and Taylor help make up for the lack of rights, like just buying all the friendship bracelets and all the silver clothes like made up for not having any right. They did their part. They are all amazing. And yeah, it turns out there's only so far they can go. There's no substitute for constitutional rights. It is really alarming.

Even Taylor? No. It is cathartic and it is energizing to continue to fight for the rights we should have, but yeah, not substitutes. Props to Taylor for getting 35,000 people to register to vote. So good for her. I call that a good start. And props to Beyonce for giving me my whole life back. Like I went to Renaissance and I was cleansed. Who inspired you to get that ticket to that LA show, Melissa? You did. You were like, just do it. And I was like, should I do it? Should I fly to LA? And you were like, girl, just go. And I did. And I wore silver

clothes because it was Virgo season. And like Beyonce, I'm a Virgo. And it was just absolutely amazing. Like Taylor, I'm a Sagittarius. We just got to find someone for Kate. Kate's got to find a superstar Zodiac partner. And then we're in business. I barely know my own Zodiac sign, so I'm not even sure. I think this is going to take a while to figure out.

When's your birthday? I'm a Taurus. I do know that, actually. But I have no idea who else in celeb world is a Taurus. Wait, was Blue Ivy on stage at the LA show? Did you see her? She was. She was.

I did see her. I was very close. I mean, I was on the stage risers in LA. Wow. I was very, very close. I could see that she was wearing fishnets at one point. Wait, Blue Ivy was wearing fishnets? No.

No. Okay. Beyonce was wearing fishnets. I mean, it's possible, I suppose. Blue Ivy is a child. Yes. Maybe she wearing fishnets? No. No, Beyonce was wearing fishnets. I mean, it's possible, I suppose. Blue Ivy is a child. Yes. Maybe she wears fishnets. No, no.

She's wearing like suits. She's well-covered. She was like wearing like a track suit. But it was like DJ Khaled was there. It was great. It was great. I saw lots of celebrities in the audience. And FYI, Meghan Markle was there at the same time that I was. And if I had known

that the other MM was in the stadium, I would have left the stage riders and I would have found her and we would have become friends. Carly Kloss was at the stadium while I was there. I really feel like we had just like parallel experiences. We really did. So we did find ways to source

some joy this summer. Internally. That was kind of external. And internally. We brought the squish. We definitely brought the squish. Okay. So we should probably turn to business. Here is the rundown for today's show. We are going to start with some breaking news. We will then preview the three cases the court is hearing this week. It's a pretty light week in terms of just the sheer number of cases the court is hearing, but all of them are kind of a big deal. And so we're actually really glad to have some time for them. And we will then, at the end of the show, turn to some court culture. And since it's the start of another season, we thought we'd just explain, for those of you who are new to the pod,

welcome, we thought we'd explain how we work while the court is hearing cases. So during the court's term, our weekly episodes will preview cases that are going to be argued in a given week. And we may also recap oral arguments in cases that were argued the previous week. So we have a kind of rhythm, preview, recap, preview, recap. And then for episodes that air in between the court's monthly sittings, we cover other things related to the court and court culture, like, for example, whatever latest insanity regarding the justices' ethical lapses that ProPublica has uncovered. Or we might take a deep dive into some things that are on the court's docket, or we might even delve into another court's docket. And yes, that is a Fifth Circuit subtweet.

So this episode airs on Monday, but tomorrow is October 3rd, which is Aaron Samuel's Day. So happy early Aaron Samuel's Day to those who celebrate. Find someone cute. Ask them what the date is. What is Aaron Samuel's Day? Don't mean girls. On October 3rd, he asked me what day it was. And I said, it's October 3rd.

I'd forgotten about that. I love when you remind me of these things. Well, first, let's do some breaking news. Because we have what counts as good news out of the court. This broke last week, and that was the court's refusal to bless Alabama's defiance of the court's June 2023 opinion in Allen v. Milligan. So, listeners, you'll remember Allen was the case that held that Alabama violated the Voting Rights Act by drawing a racially gerrymandered map, and that it needed to draw a map with a second majority Black district. Alabama, of course, stayed on its BS. It drew another map, but it still did not include the required second majority minority district. That map was also challenged, predictably. Alabama lost. And Alabama then went running to the Supreme Court asking for another bite of the apple. And the court denied Alabama's

stay request with no noted dissents. To be very clear, none apple, and the court denied Alabama's stay request with no noted dissents. To be very clear, none of this changes the fact that Alabama continues to be truly outrageous in its efforts to dilute the voting power of Black Alabamians, who make up about 27% of the state's population. Nor should the court get any cookies for doing the right thing here. The court's institutional self-interest and legitimacy just happened to align with the interest in democracy and the rule of law. So it's great when you have that interest convergence, but I'm never going to forget that the court allowed this stupid map to go into effect in the first place back in February of 2022. Nor am I going to forget that this was literally the least that they could do. But I

will take this as a win for both the rule of law and what it means for Alabama and for other states who are going to have to use genuinely representative legislative maps going forward. So huge sigh of relief. You did note there were no noted dissent, which makes me wonder whether someone needs to do a wellness check on Sam and or Clarence. Check the RV first. I was actually like, maybe this is one of these things where very occasionally you get, not at the Supreme Court really, but in lower courts, a dissent that follows after the issuance of either the order or the opinion. This is something that normal one having Supreme Court Justice Rebecca Bradley has done, right?

Follow up with the dissent a couple of days later as she, you know, whatever, polishes her prose. So it was like, I was like, maybe they're just, you know, working on their dissent and the order came up. But Thomas was the one who referred the request to the court. So no, they just decided to hold their fire. So what's the theory? Melissa, you said check the RV. What, like they're being held hostage in there? And maybe they're just chilling out, like getting ready for the term just relaxing doing some masks you know they could get exercised about this but why get exercised about this when you could get prepped to take down the administrative state exactly I mean exactly um but the entire episode drives home at least for me how Brad

Kavanaugh has the tact or skill of a large mammal whose head and brain are like quite small because, I don't know, like the horses the patriarchy is all about. Because, you know, remember his like totally weird calf currents in Allen, which is partially how we got here with Alabama once again trying to defy the court and picking up the cues he left them. And it seemed to me in hindsight, like Brett was trying to pull a chief justice from say, June Medical or NFIB versus Sebelius or Northwest Austin Municipal District, or other cases where the chief justice planted some seed that could be used later on to move the law in the way he wanted to and escape public notice while making the law bend toward conservative aims. But unlike the chief who coach Kavanaugh fanboys over like Brett just doesn't have the brainpower and skill to pull it off. So he did it in a really ham handed way and didn't mean for Alabama to try to do so like literally in this case. The Alabama Attorney General issued a statement after you know, the Supreme Court said

Alabama, you know, this lower court decision actually would stand, the Alabama AG likened the decision that struck down a map that diluted the voting power of Black Alabamians and a decision that will ensure Black Alabamians are represented to, quote, a separate but equal set of congressional districts and a racial quota system. They love to quote Brown. They really do. Reappropriating the language of racial justice is really alive and well in Alabama. They are the true racial justice warriors. Woke warriors. Woke warriors. Should we preview some cases then?

I mean, like this is such a bonkers term that I feel like we need to just spend as much time as possible going over this stuff. Let's do it. Yes? Okay. All right. So, again, this term, we just want to reiterate, seems like it's pretty anodyne and technical, but there's some really big cases here. So we want you to be prepared so that you can tell your friends and family, like, don't be lulled into an anesthetized opiate sleep. This is actually a really big deal.

All right. So the first case we're going to preview is Atchison Hotels versus Laufer. This is a case that concerns tester standing. And Leah mentioned it on our term preview, but we didn't have time to go deep in that preview. So we are now going to spend a lot of time digging into Atchison Hotels. So first up, Kate, tell me what tester standing is. Yeah, we thought we'd start with some kind of definitional work. So tester standing is basically just a way of enforcing civil rights statutes by identifying discrimination. So maybe we'll talk about a little bit of the earlier precedent on this issue.

The court decided some early test or standing cases, including Havens Realty, which involved the Fair Housing Act. So that act prohibits discrimination in housing. It says landlords and sellers cannot discriminate on the basis of race, among other characteristics. But how do you know whether a landlord or agent or someone else is discriminating on the basis of race in defiance of the Fair Housing Act? Well, one easy way that you could establish discrimination is if you could show that the landlord treats white and black tenants or white and black prospective buyers differently. So testers might go out and seek information about a real estate listing. So some white testers would ask for the info and then some white testers would ask for the info, and then some black testers would ask for the info. And if they got different information,

like if the landlord gave the white testers information but didn't give that information to the black testers, or if a seller offered a more favorable deal to the white testers or offered to sell to the white testers but not the black testers, then the testers could say that they were discriminated against. And that kind of process helps enforce anti-discrimination statutes, which otherwise would have to be enforced in real time with every single episode of discrimination. And again, individuals might not know they were being discriminated against without the sort of control of the other tester. And so because otherwise it might be harder to identify this kind of discrimination and therefore stop it, we use testers to try and identify it.

And when these tester standing cases arose, the defendants tried to argue that the plaintiffs did not have standing because the plaintiff testers might not have intended to actually buy or actually rent the property they were inquiring about. And therefore, the defendants argued because the plaintiffs never intended to buy the property they were asking about, they weren't injured when they didn't receive the right information about it or received a worse deal. And the Supreme Court back in the good old days rejected those arguments and said that testers did have standing if testers had been discriminated against in violation of a statute. And the court reasoned that whether or not you intend to buy the property, if you are

discriminated against on the basis of race or other protected status in violation of federal law, then you are injured and have standing to sue. And there's an amicus brief we wanted to highlight by the NAACP LDF and a number of other civil rights organizations that describes the dignitary harm and injury that result from discrimination, whether or not there is a separate injury related to the denial of a specific good or service that someone wants to buy or rent. And they invoke the history of Black plaintiffs who sued to desegregate privately operated transportation hubs in Jackson, Mississippi. And they emphasize, look, these plaintiffs didn't allege a risk of criminal consequences. They didn't allege any tangible reason why they would personally need to access specific whites-only areas like terminals they were passing through.

The court didn't require that, right? It held they had standing to enforce their right to non-segregated treatment. And that is what the plaint of information by itself can be sufficient to confer standing in other contexts as well. And these cases and the general theory is what this case is about, whether testers can sometimes have standing. This particular case, which is about tester standing broadly, is specifically about the Americans with Disabilities Act, or ADA, a federal law that guarantees accessible services and accommodations for persons with disabilities. And testers might, for example, identify a facility or business that does not offer such accommodations and challenge the failure to offer accommodations before the failure to

offer services or accommodations actually prevents a person with disabilities from being able to access that facility or that business. And this is a very real concern for the ADA. An event this summer kind of underscored why Tester Standing is important to remedy ADA violations before they end up excluding persons living with disabilities. So Senator Tammy Duckworth, the senator from Illinois who lost her legs in combat, tried to take her two daughters to the Barbie movie. She said they all get dressed up and her children put on their sparkly shoes. But it turned out the elevator was broken at the theater they went to, and the theater hadn't posted any information about that.

So Duckworth, who uses a wheelchair, couldn't access the theater or go to the movie with her family. Another reason why Tester's standing is so important is that it's actually very inefficient and even unrealistic to enforce the ADA by addressing complaints as they occur in real time. So Claudia Center, who is the legal director for the Disability Rights Education and Defense Fund, explains it this way. Quote, there are thousands upon thousands of complaints. There's no way for the Department of Justice at its current level of staffing to respond to them all.

You have to find a lawyer, one who will work on some kind of contingency fee, because most people with disabilities don't have the money to pay out of pocket. There's a filing fee to even file a complaint. Everything is very expensive. There are also no damages that can be awarded in a case like this. So there's no promised payout for a lawyer later, as there might be in a personal injury case. And so all of these sort of interesting procedural and structural inequities make it much harder for individuals with disabilities to enforce their rights under the ADA. And so tester cases like this one are areas where they can preemptively challenge some of these violations of the ADA without actually having to mount the litigation themselves. So again, the case broadly speaking about whether a tester, someone who identifies an ADA violation in the wild, even though they may not themselves be planning to use a particular facility, has standing to sue under the ADA. And this particular challenge is

to a hotel's failure to provide information about accessibility on the hotel's website. Now, there's a procedural wrinkle here that we should identify. So in its brief, the United States notes the case may actually be moot because the hotel added accessibility information to its website later. And the plaintiff in this case, Ms. Laufer, filed a notice of the voluntary dismissal of her claims in the Supreme Court learned that her other counsel, the counsel that had represented her in other district court proceedings, had been disciplined in another district court for their conduct in ADA cases that had been filed on Laufer's behalf, including failing to keep clients like Laufer informed of the progress on their cases. And Laufer's SCOTUS counsel says that her plaintiff, quote, recognizes that the allegations of misconduct against her original lawyer could distract from the merits of her ADA claims and everything she has sought to achieve for persons with disabilities like herself. And accordingly, she has decided to dismiss all of her pending cases with prejudice. The complaint in this case has also been recently suspended from the practice of law relating to mortgage assistance relief work that did not concern this plaintiff or the ADA.

So there's a lot of stuff going on here. And Ms. Laufer, recognizing that some of this could be a distraction from grants certiorari in your case, effort to get the Supreme Court to dismiss the case and not actually decide it. Basically, trying to get what's called a dig, a dismissal as improvidently granted, which would mean the court ultimately doesn't hear the case at all. And I think this has developed that practice since the specter of this court deciding anything in a civil rights case is usually horrifying. And so like this phenomena, arguing that the court should dismiss a case or pursuing some action that could get your case dismissed has actually happened a bunch. So this happened in some previous Fair Housing Act cases about whether the Fair Housing Act provided for disparate impact liability. Disparate impact liability is just like when a policy results

in disadvantages or discrimination on the basis of race, whether that violates federal law. So first, the Supreme Court took up that issue in Magner v. Gallagher, 2012, that settled. Then Mount Holly v. Mount Holly Garden Citizens in 2013, that also settled. And finally, the Supreme Court got a case out of a Republican-controlled state, you know, that wouldn't settle. And they decided the issue in Texas Department of Housing and Community Affairs versus Inclusive Community Affairs Project. And that wasn't the only example. Like the post-grant effort to get a dig also happened in one of the precursors to the fair share public sector union cases, Janus. That was in the case of Knox.

So after the Supreme Court granted cert in Knox the union sent a notice offering a refund a fair share of fees to people who objected to them it also happened in a previous gun case you know that the court was going to decide before Broon also captioned NYSERPA there the city repealed its gun licensing scheme and the state you know enacted a law after the court granted cert and before that there was Fisher versus University of Texas an earlier affirmative action case where there were reports that Texas had actually offered to refund the application fees paid by the applicant who sued to challenge the school's affirmative action program. So yeah, this just seems to be part of the pattern now. So those efforts, there's a lot

of precedent for, not always successful. So we will see if the court decides to take that off ramp or actually get to the merits of the case. If the case does get to the merits, the defendant in this case, so actually the petitioner, the one asking the Supreme Court to take the case, actually isn't totally asking the court to jettison test or standing in its entirety, which I think wasn't totally clear going into this case. But having looked at the briefs is now clear. The argument seems to be a much narrower one, just that the ADA regulation in this case cannot confer tester standing, although a statute presumably could create standing for testers. They also seem to argue that access to information under the ADA in particular is about facilitating access to hotels. And so they say under the statute, a plaintiff needs to have some plans or desire to access a hotel or to travel there in order to have standing. The defendant hotel also says that acts of individual discrimination result in stigmatic injuries in a way that doesn't happen in ADA cases.

And I'm not really sure that's accurate or right or even fair. But it does signal, as Kate is suggesting, that the defendant isn't asking the court to overrule all test or standing cases, but rather to distinguish them on possibly artificial grounds, but to distinguish them nonetheless. So, you know, one question here will be whether the court will do what it did in the affirmative action cases where it wasn't being asked to jettison affirmative action entirely, but rather to address the specific claims that Asian American applicants were raising, but instead the court sort of bypassed that and took the more extreme path. That's a question here, too. Will the court be

narrow, as the defendant is suggesting, or will it be broader and get rid of tester standing entirely? And the United States is also participating in the case, also pushing kind of a narrow ground for the court to resolve the case, saying the plaintiff doesn't have standing because the specific ADA regulations and statute don't provide a right to information for people who don't seek to use a hotel's reservation service. And the reason why these are narrower arguments is that they just turn on the meaning of a statute and regulation and maintain that this particular statute or regulation does not allow testers to sue without resolving whether testers could ever sue consistent with the U.S. Constitution if Congress were to authorize them. As the post-cert grant developments

highlighted by Ms. Laufer's attorney suggest, I worry that some of the justices, specifically Alito and Gorsuch, will seize on them to argue that they are somehow representative of abusive litigation practices in test or standing and anti-discrimination cases and use that as kind of like a cudgel to attack test or standing. And just progressive litigation in general. Yeah. I mean, I feel like there's no way they're going to miss that opportunity. Death penalty litigation, all of it. Anytime you're enforcing your rights, it is abusive. It's abusive, definitionally. So they will definitely not hesitate to point that out. So the next case the court will hear this week is Pulsifer v. United States, which is an important case about the meaning of the First Step Act.

That's the law that amended federal sentencing laws in various ways to basically make federal sentencing more humane. Leah mentioned this case in the term preview as a case that she was cautiously optimistic about. So the specific question in this case is which people are eligible for the safety valve provision of the First Step Act. That provision says that in certain cases, people should not be sentenced under the very harsh mandatory minimums that Congress previously enacted, but rather should be sentenced under the discretionary guidelines regime. And the safety valve provision applies to people who have been convicted of certain nonviolent drug offenses so long as those individuals can meet certain criteria. Specifically, the statute says a person will be sentenced under discretionary guidelines rather than the mandatory minimums if the person, quote,

does not have a more than four criminal history points, excluding any criminal history points resulting from a one-point offense as determined under the sentencing guidelines, B, a prior three-point offense as determined under the sentencing guidelines, and C, a prior two-point violent offense as determined under the sentencing guidelines, end quote. And the question here is whether the and that precedes part C means or for purposes of the statute. So the defendant says the safety valve applies so long as you don't have four criminal history points a prior three-point offense and a prior two-point violent offense the government says the safety valve applies so long as you don't have four criminal history points or a prior three-point offense or a prior two-point offense, or a prior two-point offense. And there's a circuit split on this question. So the fourth, ninth, and eleventh circuits say that and means and. And

then the fifth, sixth, seventh, and eighth circuits say that and means or. Very normal. And I just kind of feel like, you know, textualists on the court, like, do your thing. I'm hoping they will do their thing. I think they should do their thing and say and means and. I know that Sam Alito is like furiously pounding down energy drinks while he keeps rerunning corpus linguistic searches to figure out instances where and actually means or, but I just don't think that's probably going to carry the day at the court. The table of contents for the defendant's brief, which is by Jones Day, is kind of funny. It's like, the and means and. The plain meaning of and is and. Context confirms that and means and. It's just- The textualism. The textualism.

We rarely say a kind word about a Jones Day brief, so we do have to give it to their table of contents. This was well done. I just think Gorsuch is going to be all over this he's going to think it's fantastico because his metier is textualism um references to that style piece will continue until morale improves um but i don't think the argument for the defendant in this case is just like a mindless textualist thing where like and means and means and and and and and and and like there's a great dissent by Judge Diane Wood on the Seventh Circuit that talks about the structure and design of the First Step Act and how it was to shift focus from the length of prior sentences to the substance of an offense as well as a broader purpose of the First Step Act, which

was to make discretionary sentencing available to more people with low-level nonviolent offenses. So the federal government and the circuits that have adopted the government's interpretation rely heavily on the canons against surplusage and absurdity. Here, the canon against surplusage means, because the government lawyers got kind of confused, means a literal canon where they blow up Congress's efforts to make federal sentencing slightly, only slightly, but meaningfully more humane and less insane. I saw what you did there. My effort as a canon joke. I like that. Canon fodder. Really good. Very good. That's all I got. The canon against surplusage does mean the idea that a statute should not be interpreted in a way that, you know, makes parts of the statute superfluous, right? Like makes parts of them not do any work. But it ends up resulting in this reading that I

think would clearly undermine the overall goal structure, all of it, of the statute. And I am kind of salivating at the prospect of Justice Jackson just unloading on this. You know, she did something similar in Laura, where she pointed out that just because someone is eligible for discretionary sentencing does not mean they will actually get a lower sentence. It just means the judge has discretion to tailor the sentence that is appropriate to the actual offense and the actual defendant. You know, for example, like the government in its briefs hypothesizes like, has discretion to tailor the sentence that is appropriate to the actual offense and the actual defendant. You know, for example, like the government in its briefs hypothesizes like, well, what about someone who has like a million criminal history points from all of their offenses

with four points? You know, they would still be eligible for this discretionary sentencing because they don't have a two-point offense. And it's like, okay, if this person has 10 prior convictions for murder, then the judge will just sentence them to a long term of imprisonment. You know, the First Step Act just doesn't impose a mandatory minimum. And the National Association for Criminal Defense Lawyers, Amicus Brief, you know, identifies circumstances where judges exercise their discretion to impose sentences way longer than the mandatory minimum. So why don't we just play the clip from Justice Jackson in Laura kind of unloading on the

government's indication of absurdity, which I hope she will be repeating in this case. All right. What if we agree that the reason why they don't create an anomaly is first because that's the text obviously says doesn't say they're read in. But setting that aside, they don't create an anomaly because J is still broad enough to allow for the greater penalty. Because the government sets this up as a catch-22, and that's really underlying your BlackBurger concern. You said earlier, you know, the government would have to leave on the shelf the mandatory minimums in C if it picks J. But I guess I don't understand why they're not, why the

government perceives itself to be losing the opportunity for a higher penalty if it picks J. You still go to court and you still say a killing happened in the context of this carrying an offense. And so, Your Honor, in your discretion to impose the death penalty or the term of years or whatever, we argue that you should give this person more than a person who just would have gotten five years under the mandatory minimum. And as Justice Kavanaugh pointed out, nine times out of ten, you would get it because the court sees a death in this situation and Jay permits the court to impose a higher penalty for that. So it's not a situation in this situation and Jay permits the court to impose a higher penalty for that. So it's not a situation in which by picking Jay, you somehow are relegated to smaller or lesser

penalties in a way that might implicate your Blockburger concern. And with that fresh in our ears, I want to return briefly to our KBJ Appreciation episode. Remember, we were sort of reaching for some moniker for her in statutory cases, and we didn't really have one at the ready. And a listener, Spencer Waller from Loyola, wrote to us to suggest the Countess of Context as an apt descriptor of Justice Jackson in statutory cases. And, you know, I want to take it out for a spin. And I think it works pretty well. Yeah, I like it. Ready for her to drag them for filth and context.

Yes. Right. With lots of context. So, Kate, you mentioned that, you know, the government's absurdity argument would really undermine the entire scheme. It really would take a lot of the wind out of the sails of the First Step Act because under the sentencing guidelines, a defendant gets two points for any prior sentence of 60 days or more. That includes for misdemeanors. And they would receive more criminal history points for offenses where sentences are longer than 13 months. And those kinds of sentences are quite frequent. Like in 2022, over 23,000 people convicted in the federal system, nearly 40% had been convicted of these

offenses. So the government's interpretation would really wipe away the sentencing fix in just a huge number of cases. And the government's interpretation has other super harsh consequences. So consider how it might have worked in the case of Eric Lopez, who is convicted of a low-level nonviolent drug offense. He had a prior conviction from 10 years earlier for spray painting a building. And this earlier conviction resulted in at least two to three criminal history points being added in the sentencing calculus. So under the government's theory, Lopez would not be eligible for the safety valve relief and would require a five-year mandatory minimum sentence. So Leah, you're feeling still cautiously optimistic about the outcome here? I am. Yeah. I mean, I just like, I want to know if the Alito and the Gorsuch of the sort of textual swing of the court are really just going

to pull these words out of context, because it is not crazy. Like words sometimes mean unexpected things depending on their context. And so and means or is not actually in every context as insane as it sounds in the abstract or in the Jones Day table of contents. Like right, if you say like we're doing a group project and I'm like, Professor, please don't put me with Leah and Melissa, because the three of us just, like, have a really bad dynamic. I'm saying, you know, the three of us are a toxic combination. For example. That's quite a hypothetical you just pulled out of your mind. Amazing. Okay, how about this? Professor, please don't put me with Leah and Melissa, because we have

too much fun, the three of us, and the combination of the three of us is going to make it impossible for us to do any work. We'll never get the assignment done. I am actually arguably maybe saying I could get work done with just Leah and some rando or just Melissa and some can sub in a third. I'm just saying in the abstract, it is not crazy that sometimes words mean unexpected things in context. It is crazy what the government is arguing here. me and Leah, your attempt to clean it up is to create a hypothetical where it's actually flattering to us. Because my first instinct would be instead to substitute me and Leah's name for people I actually hate. Exactly. That was my instinct as well. I was like, what is she going to say? I'm like, oh, she's going in a different direction. Like Sam and Neil. So my prediction here is that this is going to be a kind of Voltron moment for Neil Gorsuch, where his textual healing bent and his civil libertarian, I hate the criminal justice system more generally, may actually come together

with really winning results. So maybe this is a place where he and Justice Jackson can vibe a little. She can be the countess of context. He can be like, I'm just a civil libertarian. Do you want to keep your republic or not? That kind of guy. What do you think? Yeah. All right. So last case is kind of a doozy. So maybe let's turn to it now. So we have plenty of time to cover it. And that last case is CFPB, the Consumer Financial Protection Bureau versus Community Financial Services. And it is one of the major administrative law cases slash is government constitutional cases that's on the court's docket this term. And we also mentioned it in our term preview. So they really are starting out this term with a bang.

I just also want to note that it involves the CFPB. It also involves community financial services, which despite its name may not actually be for the community. Isn't it a payday lender? Yes. Great branding. Hell of a job on branding. But I just want to point that out. In any event, this case... Liberty Financial Services was taken. It's just another iteration of Woke Warrior, right? And the gaslighting inversion trope, right? Where you insist you are the exact opposite of what you actually are. This case involves an absolutely deranged challenge to the CFPB's funding structure. And again,

it is not the first time the CFPB's funding structure. And again, it is not the first time the CFPB structure has been challenged. It is the first time its funding structure has been challenged. So they've definitely moved on a little bit. But the theory that's being advanced in this case could cast doubt on the funding structure for other government entities, including the FDIC, the Federal Deposit Insurance Corporation, or the Office of the Comptroller of the Currency and the Federal Reserve. Insurance Corporation, or the Office of the Comptroller of the Currency and the Federal Reserve. It could even call into question the funding mechanisms for government programs like Medicaid

and Medicare. So again, it's just really broad here. And that's partially why when the Fifth Circuit decided this case, we referred to it as presenting the originalist case for a recession and a panic of 2023, like make the 1920s stock market collapse great again. Make Black Monday great again. Yeah. journalist case for a recession and a panic of 2023, like make the 1920s stock market collapse great again. Make Black Monday great again. So the theory being presented is that the way that Congress chose to fund the CFPB violates the Constitution and specifically the Appropriations Clause, which is Article 1, Section 9, Clause 7. And it reads, quote, no money shall be drawn from

the Treasury, but in consequence of appropriations made by law and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. Again, just to be clear, the CFPB is the agency founded in response to the 2008 financial crisis. The idea was to address predatory lending and other practices that had hurt consumers and that led to the greatest financial crisis since the Great Depression. And Congress passed a law that created the funding structure when it made the CFPB, and that structure allows the CFPB to use funds from the Federal Reserve. So that is an appropriation made by law. The law has appropriated Federal Reserve money to the CFPB. That's how the CFPB is funded. That should be the end of the case, and yet here we are. Because some geniuses at the Fifth Circuit were like, well, actually, the Federal Reserve money doesn't come from the appropriations process that Congress goes through every year. And therefore,

any CFPB action relying on money from the Fed is unconstitutional. Ergo, all CFPB action is unconstitutional. Yeah. And not only are the limitations that these challengers are asking the court to impose nowhere to be found in the text of the Constitution, they are also completely inconsistent with historical practice, not just with respect to our current institutions of financial governance, as an amicus brief by the Constitutional Accountability Center for some professors illustrates. But the argument itself would doom tons of congressional action and the structures of tons of agencies, both today and throughout our history.

That seems purposeful, Kate. Sure does. I know I said this when we talked about the Fifth Circuit's decision, but the Fifth Circuit's theory and the challenger's theory boils down to the notion that Congress's appropriations power is so exclusive that federal judges get to tell Congress how Congress is allowed to make appropriations like they are respecting and honoring the appropriations power so hard by invalidating and second guessing Congress's choice about how to exercise it very similar to the like Jim Ho I'm respecting the FDA scientists

by yanking their approval for a drug that's been on the market for 20 plus years energy. All right so the fifth circuit distinguished the funding structure for the CFPB from the funding structure for the Federal Reserve Board on the ground the CFPB is, quote, double insulated from Congress, whereas the Fed is singularly insulated. But the Federal Reserve Board still doesn't get money from the normal appropriations process. So I don't take that to be a limit on the bank, the sort of mono insulation versus double insulation. I'm not really understanding that logic, but whatever. The Fed, like the CFPB, gets its money from assessments from Federal Reserve banks, and the CFPB's money is a capped amount of that funding.

The Federal Reserve Board gives the CFPB money from the combined earnings of the Federal Reserve System. And so that's how the board gets funded. So this distinction between double insulated and singularly insulated is a little weird to me, because it's all coming from the Federal Reserve Board and the Federal Reserve Assessments. And even if in the sort of abstract, there is like some daylight between the double insulation of the CFPB as these challengers frame it and like single insulation of the Fed, the way the case is framed, like that theory, definitely calls to mind the kind of two-step that the court sometimes uses in administrative law cases. And here,

I'm thinking particularly about the removal cases, like, you know, presidential power to remove. So there was one case, Free Enterprise Fund, which people sometimes call peekaboo. In that case, the court said two layers of insulation from presidential removal aren't okay. The details probably would take us too far afield, but basically the president was limited at two different stages from being able to summarily remove individuals on this public accounting oversight board. The court said that's a problem. the president was limited at two different stages from being able to summarily remove individuals on this public accounting oversight board. The court said that's a problem. Then in CELA law, which involved this very agency, the CFPB, the court said, well, actually one layer of removal also isn't okay. So it is not at all hard to imagine the argument succeeding in this

case with the court ostensibly drawing a distinction between the CFPB and the Fed. And then in the next case, an appropriations challenge to the Fed directly. And I mean, the kind of global instability that a successful challenge to the Federal Reserve would create is almost unfathomable. And yet, it may well be that this case is laying the foundation for doing just that. Well, I mean, that's a great point, Kate, because the reason why Congress structured the CFPB in this way with its appropriations coming from the Federal Reserve is because it wanted to ensure that the CFPB had stable funding to prevent the kinds of regulatory failures that had led to the financial crisis of 2008 in the first place. And there's a terrific amicus brief by Doish Hunt that details all of this. So

the linking of the CFPB and the Federal Reserve was purposeful because they wanted stability. And so all of this seems to be pointing toward greater instability, which seems very weird. Or maybe the point. Okay, so who is challenging the CFPB? Jones Day. This feels more familiar. Thanks about Jones Day earlier. This feels more familiar. We have to restore balance in the universe. And specifically, former Trump Solicitor General Noel Francisco, an attorney at Jones Day. So this is the former Solicitor General who is arguing to

the Supreme Court with a straight face that the way to respect legislative supremacy, right, the supremacy of Congress, which is the key goal of the Appropriations Clause, is to hand courts a vast new set of powers, including the power in the guise of protecting and respecting Congress, to second-guess congressional spending choices, along the way wounding agencies, some fatally, if those agencies' funding schemes don't align with what the court, in its infinite wisdom, thinks the Constitution should be understood to require. I think it's an insanely audacious ask, and yet that is what Noel Francisco is asking of the court. Did you hear what you just said? Like, this is a theory that would basically –

Neil Gorsuch is like, yes, join me. It arrogates power to the court. This is like major questions doctrine, like all of it. Like, this is a winning argument, Kate. It's a winning argument. But it's just a vastly new set of powers. Like, major questions is crazy, but it builds on non-delegation foundations, right? So it doesn't just spring from nowhere.

This appropriations challenge really feels to me like even crazier in that it's not even rooted in other kind of conservative fever dream ideas. Well, I mean, like, it would be like a quicker shift right in that it would like come out of nowhere but i think they are similarly unhinged in their lack of foundation in say law similar in effect in arrogating power to the court unilaterally disarming the administrative state and just nuking it and in this bad faith guise of we're doing this for congress like No, no. That's also what they do in major questions. No, I'm saying both. I'm saying, yeah. No, you're linking them. I'm saying that too, like very much links them. It is just so facially bad faith. And yet they're going to say it. If they do this, it's going to be all about Congress and respecting Congress. But this

is why it's perfect. More power for us. And we nuke administrative agencies. And Congress thinks we're doing them a solid. Amazing. Well, we're not going to let them get away with that story. No. But in light of the court context, we opened our term preview episode with, namely, Clarence Thomas appearing at Koch Network donor events. Very normal. Apparently arranged by Leonard Leo.

Also very normal and law-like. And the Koch Network's push against the administrative state, we did just want to flag some Koch-affiliated slash Leo-affiliated amici briefs in the case. So there's Americans for Prosperity. There is Washington Legal Foundation, Landmark Legal Foundation, New Civil Liberties Alliance, Chamber of Commerce, Foundation for Government Accountability, all of which have been linked to industry funded efforts to undermine government regulation. There's also an amicus brief by several states, including West Virginia. And while West Virginia is ostensibly not a Koch organization,

the Koch network, right, exactly, they are trying to make it one by donating a ton of money to state attorney general campaigns and other statewide officials in order to push back against state efforts to regulate to prevent a climate disaster and regulate more broadly. And this just feels like a real elite strike force legal team they have assembled here against the administrative state. Well, I hope that they have as much success as the actual elite strike force legal team working. Real conspiracy shit beamed down from the motherboard or whatever. That's what this appropriation clause theory is.

Conspiracy should beam down from the mothership. I think that's how we're going to henceforth refer to this case. This definitely was dreamed up at the Bohemian Grove in between. Which is the mothership. Yeah, between naked jaunts in the woods. They're like, you know, it would be great. In their breaks from conversations about Chevron deference. They switch to the appropriations clause. Just in the interest of noting the connections between the court's cases and court culture we have covered,

we should also note that Paul Singer, who, of course, is a billionaire who flew Sam Alito to Alaska on a private jet and went fishing with him. Singer's company owns millions of dollars in stakes in companies that are subject to the CFPB, just kind of underscoring what a small world this is and how these mega billionaires kind of have interest in these cases while they are cavorting with the justices deciding them. Leah, it's a coincidence. It's a community payday lending shop. It does nothing to do with Paul Singer Alito was not present for any conversations about the appropriations laws or so I am told feels like we have been doing court culture even as we've unpacked this first sitting.

So maybe we should just keep going and do more of this court culture. What do you think? Yeah. Okay. All right. Good, good, good. So in addition to all of that stuff involving the Koch network and Bohemian Grove and the interaction between these conservative legal interests and the court's

upcoming term where the question on the docket really is, is government, as we know it, constitutional? There's some other stuff that's going on that we should talk about. So we wanted to at least acknowledge or briefly touch on for the moment, the recent focus and litigation over Section 3 of the 14th Amendment. So there have been some suits that have been filed seeking to disqualify Donald Trump, perhaps you've heard of him, from the 2024 presidential election on the basis of Section 3 of the 14th Amendment. That provision reads as follows, quote, No person shall be a senator or representative in Congress or elector of president and vice president or hold any office, civil or military, under the

United States or under any state, who, having previously taken an oath as a member of Congress or as an officer of the United States, or as a member of any state legislature, or as an executive or a judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. So even apart from these suits, it is possible that a Secretary of State in some of these states could invoke the 14th Amendment to decline to put Trump on the ballot in that state or otherwise to certify electoral votes for him. So this is kind of a live question right now. It's a live question and

received potentially some unexpected support in a recent law review article by Will Bode and Michael Stokes Paulson, two prominent conservative law professors who argue both that Section 3 retains vitality. It's part of the Constitution, like it's not in some state of desuetude where you, you know, it's not actually a meaningful, viable provision anymore. Like the Ninth Amendment. Well, yeah, I'm sure, I'm sure, I'm sure where Michael Stokes Paul the Middle East stands on that one, I don't know about Bode. But yes, not like the Ninth Amendment, in fact, still a provision that has some teeth. And that under sort of the text, the history, structure of the Constitution, all of it, Trump is 100% clearly disqualified. Now, I will confess here, it is a very long paper.

It's like 160 pages long. And I have read some but not all of it. But it's an incredibly convincing piece. And if you don't have time to read the full paper or listen to it, I have been listening to papers using this voice reader app where I have like an old British lady read me things. And so she's reading me this paper now, but it's taking a long time. So we're not through yet. But is Regé-Jean Page available for that as well?

I don't know what he's doing right now, but I think that would be a great between gigs. I'm also listening to Meryl Streep read me a novel, which is also really good. So like there are definitely actors, Regé-Jean, Meryl Streep, who are in this business. I just don't know about reading law review articles. Anyway, so that I think is great. And David French had a good column about it if you don't have time torett Tillman, basically arguing that no, Trump is not disqualified by Section 3 of the 14th Amendment. or whether it instead requires Congress to pass a law implementing it. Also, whether it supersedes other constitutional provisions or limitations like guarantees of due process, which might

otherwise require a trial before disqualification, or the provision against bills of attainder, you know, that apply to particular individuals. Also, whether amnesty statutes that Congress passed in the aftermath of the Civil War somehow modify the provision. Does the provision apply outside of the Civil War? How broadly does it reach so on and so forth? So those are just some of the arguments on which these questions turn. There's an October 30th hearing in a Colorado case and a November hearing in a Minnesota one. And I guess we will just kind of see how these play out. Rick Hassett had a piece in The Atlantic just a couple of days ago, just suggesting that there's a real national interest in this question being resolved by the Supreme Court, which on the one hand, if they resolved it correctly.

This Supreme Court or just a Supreme Court generally? Right. Maybe the answer to those two questions is quite different. By the California Supreme Court, 100%. By the Supreme Court, maybe not. Okay, so let's do that op-ed. The California Supreme Court should resolve the question of whether Trump can run for president. Perfect. All right. In other legal news, we wanted to note, on a more solemn note, that the Nebraska mother who obtained abortion pills for her teenage daughter

was sentenced to two years in prison. And these events arose before the court overruled Roe in Dobbs, but they are of course indicative of where things are headed in the aftermath of Roe as policing and monitoring of pregnant people has accelerated since Roe was overruled. And in that case, the prosecutors relied on data from Facebook Messenger to prosecute their case and establish that the mother had indeed obtained the abortion pills for her daughter. And incidentally, the daughter was also sentenced, I think, just to 90 days in jail. But again, this is sort of very far afield from the we're not punishing women for abortions. We're just punishing providers. Apparently, we're punishing the women and we're not punishing women for abortions. We're just punishing providers.

Apparently, we're punishing the women and we're punishing the mothers who help them. So there we are. In ongoing Matthew Kazmarek watch, we wanted to note that Kazmarek, who's district judge who sits in Amarillo, Texas, wrote an opinion since we last recorded that upheld a restriction on drag performances, citing, because of course he did, Christopher Rufo, the organization Gays Against Groomers. This called to mind for me how in the medication abortion case, remember, he cited a blog that culled anonymous posts in order to arrive at some statistics about complication rates for medication abortion. It was basically like, remember this website that was like voluntary posters who went to the URL?

Yeah, it was like boy math slash boy statistics. Yeah. So this is what counts as serious legal research in the chambers of one Judge Matthew Kaczmarek. And stay tuned. We're going to be discussing his opinion in a forthcoming episode that will air after this sitting. We already recorded that episode at the University of Texas, but we're going to go deep on all things Texas and the Fifth Circuit. So stay tuned for that. And since we last recorded, Justice Kagan has been out and about. She recently gave a speech at Notre Dame's law school for a scheduled event. And this speech

had some interesting tea that she spilled. So, for example, Justice Kagan spoke about the need for an ethics code. She said, I think it would be a good thing for the court to do that. But she said there were some holdups or holdouts, and I would just like her to go a little further and identify who the holdouts, holdups are. Very curious. I have some guesses. Yeah. My suspicion. She also had some remarks that I appreciated on polarization and division in the court. So the Dean of Notre Dame apparently asked whether the justices' commitment

to adhering to earlier decisions had split the justices along ideological lines. And importantly, I thought Justice Kagan did not dispute the premise of the question. Instead, she said, You are right that there have been times recently where there have been ideological divides with one side overturning precedent. I'm hopeful that it won't have that year after year, case after case. At least it shouldn't. And then in response to another

question about whether news and commentary focuses too much on Supreme Court cases where the justices split 6-3 along partisan lines, Justice Kagan basically pointedly refused to say that was a bad thing. So she acknowledged that the court is sometimes and maybe even often unanimous or has weird voting breakdowns and alignments. But she also said the recent run of 6-3 cases was significant. She said, To be completely honest, I mean, it has to be said that some of the more important cases do fall along pretty predictable lines. And she listed cases on affirmative action, student loans, LGBTQ rights, abortion, and climate change.

And then she said, When all of these are falling six to three, it doesn't strike me as surprising that people would talk about that. I love how she was just like, I'm not here for this 3-3-3 moderate court bullshit. No, I'm not going to give you a weird soundbite, right, that like papers over this. We all get along.

We have an unexpectedly high number of unanimous opinions. Like those are talking points that a lot of them in the past have trotted out and it was refreshing to see her not try to do that. Yes. She also commented on the exchanges between her and the chief in their respective opinions in the student debt case from the end of the last term. You might recall the chief really chastised her dissent for adopting a tone that suggested the court had exceeded its role and was doing something dangerous because it was and she said it and he didn't like it. She had a bunch of great lines in that dissent and we won't rehash all of them. But a couple of people have asked us on Twitter to reread this one.

So I'm going to do that right now. She's responding to the court's complete disregard to ordinary standing limitations, just the requirement that there be an actual live case or controversy. Elena Kagan says, without that requirement, courts become forums for the ventilation of public grievances, for settlement of ideological and political disputes, the kind of forum this court has become today. Is there a person in America who thinks Missouri is here because it is worried about Mojila's loss of loan servicing fees? I would like to meet him. The chief had said, it has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country. And about that writing or statement from the chief in her speech at Notre Dame, Justice Kagan said, I don't think that that's disturbing at all. As I said, I think it would be disturbing if a dissent that thought that the court had gone beyond the proper role of the judiciary. It would be disturbing if you didn't say that, if you pulled

your punches. She's basically saying, just shut up, Snowflake. It's going to be okay. If you won, shut up. Yeah. Like, one first street is not a safe space for your fucking bullshit. Yeah. Dissenter is going to dissent. That's how that works. Anyway. All right. So again, lots going on at one first street in just the first week of the term. Don't let the technical nature of these cases lull you into an anesthetized sleep. This court stays on its hustle, and so do we. But before you go this week, we want to give you a heads up that October 1st through 7th is banned book week. And Crooked is using this as an occasion to say, how fucked up is it that we need to have something called Banned Book Week? It's pretty fucked up. So you can show your support

for authors and librarians by shopping new merchandise from the Crooked store. They've got Are You Afraid of Books? tees that are perfect for spooky season. They have kids tees and baby onesies that say, read me a banned book, and newly refreshed Free the Books merch. So whether you're a bookworm or just someone with a personal antipathy for Ron DeSantis, we've got you. Now book it on over to thecricket.com forward slash store to shop your hearts out. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman,

me, Melissa Murray, and Kate Shaw. It's produced and edited by Melody Rowell. Ashley Mizzuo is our associate producer. We have audio engineering by Kyle Seglin, music by Eddie Cooper, and production support from Michael Martinez and Ari Schwartz, and digital support from Amelia Montuth. We get no support from Samuel Alito.