Strict Scrutiny - What's next for mifepristone?

Episode Date: April 24, 2023

Kate and Leah explain the Supreme Court's decision to stay the ban on mifepristone-- meaning the medication remains available on the same terms it has been. Then, they recap oral arguments in cases about religious accommodations at work, obstruction of justice in immigration cases, and whether threats are protected by the First Amendment. (Spoiler alert: it's a real race to the top for Villain of the Week at SCOTUS.) Plus! One rare piece of good news that comes in the form of an opinion that paves the way for a death-row inmate to obtain DNA testing that could prove his innocence.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. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Kate Shaw. And I'm Leah Littman. And we are super bummed to be without Melissa again today, but do not fear,

she will be back with us soon. We are midway through the court's April sitting, which is the last regularly scheduled sitting of the court's term. But we are going to start today with breaking news, then talk through a few of the cases the court heard last week, mention a few on deck for this week, and end with some general court news and culture. Okay, first up, breaking news. A little before 7 p.m. on Friday night, the Supreme Court stayed Judge Matthew Kaczmarek's decision that would have made mifepristone an unauthorized drug. This means that for now, mifepristone remains broadly available on the same terms that it has been. But Leah, what does this stay mean in terms of the next stages of this lawsuit?

Yeah, so it just means that the way Mifepristone is available now will remain the way it will be available until the Supreme Court reviews or doesn't review any decision from the Fifth Circuit on appeal. So the Fifth Circuit will review the district court's order in kind of the normal course of a case. Whoever loses there can ask the Supreme Court for review, and nothing is going to change about medication abortion unless and until the Supreme Court says that it does. So then people might wonder, what was this whole round of the case about? So this came up through the courts just as a request for a stay pending appeal. So you mentioned that the Supreme Court stayed the decision, and what the federal

government was asking for was a stay pending the appeal. That is, whether to let the district court ruling go into effect while that ruling was under review, but that ruling is still under review, that's what the appeals process is for. But again, all of the legal arguments about whether and why this district court opinion was so wrong and decisions that respond to those arguments are going to happen with the backdrop of the status quo intact and Mifepristone available on the same terms that it has been. So incredibly important consequences, but the Supreme Court on the merits did not say that the district court ruling was wrong. It just said it cannot go into effect until the rest of these proceedings take place. So let's talk about the vote on the stay.

So as the guru of the shadow docket, Steve Flodek, always reminds us, we don't always know how people vote in these cases that are seeking stays. What we do know is that it's likely that this was a 7-2 vote. We don't know that for sure. We know that there were at least five justices who voted to stay the order. And we know that there were two justices who would not have stayed the order. So both Justice Thomas and Justice Alito would have denied the stay. Justice Thomas didn't offer any explanation. Justice Alito talked about why he would have denied the stay. But we don't actually know whether there might have been one or two other justices who also did not want to grant the stay, but who did not write separately to explain that or to note that. So before we get into the nasty gram that was

Justice Alito's separate writing, I just wanted to say, you know, when I was on Pod Save America last week, I predicted that the court would grant a stay. And also in the show note that I realized no one except for Kate, Melissa, Melody, and Ashley can see, I also predicted that this was going to happen because of what I interpreted as a pretty chummy exchange between Justice Kagan and Justice Kavanaugh from the oral argument in Groff versus DeJoy last week. So let's play that clip here. And in addition to this, there were some pretty good Justice Kagan digs at Alito that we'll play later from the oral argument.

And I just felt like after listening to that, there were five votes for a stay. This was wild. So I wish the public and our listeners could actually have seen this show note in real time, because on Tuesday you made this kind of cryptic note that was like, oh, I know how Mipapristo was coming out because of this like aside in the Groff argument. And I was like, okay. And you 100% read this perfectly. And you are a soothsayer and know all the things

the Supreme Court is going to do. That was pretty amazing. And I just want to make a comment about why this exchange highlights why Justice Kagan is a good Supreme Court justice and I wouldn't be suited to the job because no joke, if Coach Kavanaugh walked into my chambers and was like, hmm, you know, I'm not so sure about that order reversing the FDA's approval of Mifepristone after it's been on the market for two decades totally safely in a case where the plaintiffs don't have standing, I'd be like, do you want a fucking cookie, Brett? Like you goddamn idiot. Whereas Justice Kagan is probably like, oh, good little boy. You're so smart and principled. Like I'll give you a pat on the head. And look, like a part of me has always wanted to see Justice Kagan's burn book and just like

actually hear her unleash on her colleagues. That's never going to happen. And it's decisions like these that are kind of why it's never going to happen. And I'm willing to give that up for the sake of the country, but did just kind of want to point that out. I mean, I do think she is definitely playing a bunch of very long games of multidimensional chess. And like you got just the like little glimpse of that during this exchange. Okay, we should talk about the separate Alito writer. So Thomas, again, said, just noted that he would have denied the stay, but didn't give any reasons and kind of interestingly did not join this writing by Alito. Alito pens this exceptionally petulant in tone, shoddy in reasoning,

four-page statement. Even for him, this was like, there were a few kind of jaw-dropping parts of this four-page missive. What were you the most struck by, Leah? You know, I'll just start out with one thing, which is Trollito, or maybe, but actual Alito, really came out in full force in this opinion, because he's like, you libs hate the shadow docket. And so like, you dissented in all of these cases. So I'm going to adapt the reasoning of your dissents here. Like you hate when we make law on the shadow docket. And it's anyways, so the opening or kind of early part of this dissent said that the court had been criticized, you know, for issuing decisions on the shadow docket. And then he cited opinions by the following justices,

Elena Kagan, Sonia Sotomayor, and Amy Barrett. What do these justices have in common? It's like, how did he manage just to name check his female colleagues to criticize in an abortion case? It's like, I could hear the blood curdling screams coming out of his chambers, like, it was the shrill herpes. I know it. Like, this is the only mention of women, like to any extent in any place in his opinion. Yeah. So only mention of women. And it's also there have been cases where Kavanaugh and Roberts have parted ways with him on shadow docket points, you know, but he it did feel kind of deliberate. He just singled out and not just the liberal ladies. Right. He threw in totally gratuitously Amy Coney Barrett as well, just

because why not? And he was like, I'm sure he was disappointed there was no Jackson writing yet that he could include because she just hasn't been on the court long enough. It was no, it was really wild. So the opinion is also on the substance, just full of insane bad faith on the effects of the decision. So let me just read a little bit from the Alito opinion. So as narrowed by the Court of Appeals, he writes, the stay that would apply if we failed to broaden it, so that's the Fifth Circuit's stay, would not remove Mifepristone from the market. It would simply restore the circumstances that existed and that the government defended from 2000 to 2016 under three presidential administrations. In addition, because the applicant's Fifth Circuit appeal has been put on a fast track with oral arguments scheduled to take

place in 26 days, there is reason to believe they would get the relief they now seek from either the Court of Appeals or this court in the near future if their arguments on the merits are persuasive. I mean, so a few things. One, to say like it was fine from 2000 to 2016, it's like the expert judgment of the FDA in 2016 and then more recently was that these limitations on telemedicine and to seven weeks as opposed to 10 or 11 weeks, like none of this stuff was required by the best scientific judgment of the experts there. So for him to sort of arbitrarily say it's fine and no big deal to wind the clock back to 2016 is ridiculous. I mean, obviously, the Fifth Circuit said the same thing, but Alito doesn't actually offer any additional justification except like NBD, just go back to 2016 seems to be his reasoning. Then there's the it's on a fast track. So oral arguments scheduled to take place in a month. And then, of course, the Fifth Circuit would have to decide the case. And the collateral damage

of the restrictions of Mifepristone being in place during all of that is completely absent from his assessment of the landscape. Like, it's just unbelievably dismissive of those effects for individuals who might need mifepristone, who are eight or nine weeks pregnant, or aren't able to physically go three times to a doctor to get it. But like, none of that comes up. Not the ladies that he's worried about, not the folks living in his head rent-free. Exactly. And he seems, you know, we covered what other effects of the decision would be because once the drug is wrongly labeled or mislabeled, you know, it can't be distributed. It would be a violation of federal law to do that. And Justice Alito just kind of says, well, look, the FDA could just use its enforcement discretion to solve this, ignoring the fact that that exposes the distributors and second find a way to invalidate that is preposterous.

Right. This guy doesn't think the president has enforcement discretion when it comes to the immigration laws. Correct. Democratic presidents don't have discretion when it comes to immigration laws. Let's try to be fair to his views. So Joe Biden gets no discretion in the context of immigration policy. Remember the remain in Mexico case. But the FDA in the Biden administration, too, somehow does. He wants us to believe that would be his position. Like, come on. of bad faith, suggesting that their litigation behavior of not appealing the competing Washington District Court order, that's what created the chaos here, which it takes a real mind fuck to actually think that. And on top of that, he suggests the federal government wouldn't abide by a judicial order in this Texas case. So he says, quote, the government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases.

And it's like he's saying, well, unless the federal government has said it promises to enforce this illegal order, I must allow the illegal order to go into effect. I mean, the reasoning is, again, just shocking. And I guess maybe he asked for an extension to finish this bad boy off, right? Because originally the administrative stay was supposed to expire Wednesday. They got this on Friday and it took him a full week to land on this. I mean, gosh, what were the early drafts saying? I know it is definitely a mysterious aspect of this last week, which is, I mean, these justices are used to disposing of cases relatively quickly. Wednesday night

would have been plenty of time for this like gem to have been drafted. And so I think there maybe are he and Thomas talking about Thomas writing something separate, Thomas joining him? Do they really think they have a chance of peeling off more than one vote? Is someone else thinking about writing but decides not to? Do you have a theory that explains the delay? of time or something like that. And that would be my intuition that that's what precipitated the delay, but hard to know. But that's not all that this four-page Alito banger has, because in what might be the most peak Alito line of the season thus far, Justice Alito insists that he is not saying what he is in fact saying. So he says, and I quote, contrary to the impression that may be held by many, that disposition, i.e. denying the stay here, would not express any view on the merits of the question whether the FDA acted lawfully. I mean, the thinness of his skin. Oh, my God. But you know who's really oversensitive, Leah? Stalking victims. They are the really

oversensitive parties. College students, too, but mostly stalking victims. But OK, so we will get there later in the show. Yeah, I mean, free tip, Sam, like those salty ass tears are going to dry out your skin. That comment is for Melissa. And on top of that, what he says here that he's not expressing any disposition on the merits and is only disposing of the stay because the government hasn't shown a reparable injury is like the exact opposite of what he said in the case where the government, West Virginia, sought a stay of a lower court ruling that allowed a transgender student to participate in sports. And there he basically said, well, putting aside all of the reasons why there's no emergency here, I grant the application because I think the state is right on the merits and I'm just a

full-on TERF. But back to this Mifepristone case, the fact that he's saying, well, I'm not saying anything about the merits while making a pretty strong suggestion about the merits calls to mind one of the greatest previous peak Lido moments from an oral argument where he said, I'm not saying what I'm saying. And that was this exchange from the oral argument in NFIB versus OSHA, the test and vaccine case. And I don't want to be misunderstood in making this point because I'm not saying the vaccines are unsafe. The FDA has approved them. It's found that they're safe. It said that the benefits greatly outweigh the risks. I'm not contesting that in any way. I don't want to be misunderstood.

I'm sure I will be misunderstood. I just want to emphasize I'm not making that point. But is it not the case that these vaccines and every other vaccine of which I'm aware and many other medications have benefits and they also have risks, and that some people who are vaccinated and some people who take medication that is highly beneficial will suffer adverse consequences. Is that not true of these vaccines? And if that is, is that true?

That can be true. But of course, there is far, far greater risk from being vaccinated by orders of magnitude. Right. There is some risk. Do you dispute that? There can be a very minimal risk with respect to some individuals. But again, I would emphasize that I think that there would be no basis to think that these FDA-approved and authorized vaccines are not safe and effective. No, I'm not making that point. I tried to make it as clear as I could.

I'm not making that point. I'm not making that point. I'm not making that point. I tried to make it as clear as I could. I'm not making that point. I'm not making that point. I'm not making that point. The one thing I found kind of satisfying about this, this was true in that oral argument we just played, but also in the defensiveness in the tone of the writing, is that the criticism is somehow getting through to Sam Alito. Like, he knows he's public enemy number one, somehow. I mean, do I really think he like hate listens to our podcast? No, sadly, no, I don't. But I do think that he knows that a lot of people really fucking hate him. And it bothers him. And so he feels the need to defend his honor in moments like this. And to my mind, it just underscores that the criticism matters. And now for him, is it ever going to change substantive votes? Absolutely not. But it's getting through to him in some fashion.

Yeah. And maybe one of the ways it's getting through to him is he couldn't even bring himself to say anything to defend the ruling on the merits. And how embarrassing does that have to be for Judge Kaczmarek and the Fifth Circuit panel? Like, not only has Judge Kaczmarek and the Fifth Circuit panel? Like, not only has Judge Kaczmarek lost the op-ed page of the Wall Street Journal, he's also now lost Sam Alito, who was willing to say, I'd let this judicially ordered ban on medication abortion go forward,

but I'm just not going to associate myself with its reasoning. That actually is maybe another possible explanation for the delay, which is he wanted to write something substantively approving of it. And actually, even Sam Alito couldn't do it. That can't be right. That can't be right. I've read some of the things that guy's written. No. Floating it as a theory. I reject it. Sorry. You know, the TLDR and the Alito writing is, of course, that the author of Dobbs, the decision overruling Roe, didn't actually want issues of abortion access and abortion care to be resolved in the democratic process. Do you want to just briefly run through what comes next? Sure. So there will be arguments in the Fifth Circuit on appeal from the Kaczmarek order in May. Those arguments will not be heard by the same panel that addressed the motion for

a stay pending appeal and then will await a decision on appeal. But no matter what the Fifth Circuit does in that case is actually going to alter the conditions under which Mifepristone is available unless the Supreme Court, the U.S. Supreme Court says it does because the Supreme Court wrote the stay to continue even after the Fifth Circuit's disposition of the appeal. Now, of course, Mifepristone is already limited in states with restrictive abortion laws. The point is this decision, this case is not poised to limit Mifepristone access in states that don't have those restrictive abortion laws. I do wonder whether the Supreme Court's disposition of this stay pending appeal might affect what the Fifth Circuit will do,

since it's a pretty strong signal that there aren't five votes for anything Judge Kaczmarek did or the Fifth Circuit. So obviously, we will continue to monitor this case. Before we leave the topic, though, we did want to remind our listeners of something that the great Melissa Murray said when we discussed the possibility that this, that is a stay from the Supreme Court, would happen. So let us play that clip here. So I wonder if we could get a 5-4 decision overruling Kaczmarek or even a 6-3 decision overruling Kaczmarek. And I wonder – and actually, I'm on the fence as to whether that's a good thing. Like, obviously, it's good in that Mifepristone will be available, but I don't want anyone to be anesthetized as to the idea that we have a normal Supreme Court.

Like, the fact that they respond appropriately in this case does not mean that these ghouls are normal. Melissa's always right. Amen. Okay. normal. Melissa is always right. Amen. Okay, so moving on to more Justice Thomas news, because of course, there is more Justice Thomas news. This will be a briefer update on Thomas Watch. But Harlan Crowe gave an interview to the Dallas Morning News that has a couple of pretty interesting nuggets in it. And because the interview is behind a paywall, but it is totally

fascinating, we wanted to highlight just a couple of exchanges. In it, he defends his friendship with Thomas. He calls ProPublica's reporting factually incorrect and being written with a strong political agenda. But, and I read the piece like three times, does not identify a single specific factual error in said reporting. So that was curious. But Crow does reveal a few additional nuggets about the friendship, including its origins. So here's how they meet. Crow's in Washington, D.C., talking with executives at the National Center for Policy Analysis. Those executives tell him

that Thomas is doing a speaking engagement for the same organization in Dallas. And Crow offers to fly Thomas to Texas on his plane because he and the plane are headed home from speaking engagement. So this is just on the conservative speaking circuit. Crow offers Thomas a ride on the jet. That's the origin. It's not a friendship where jets are just an ancillary part of it. The whole thing starts on the jet. So I don't know.

It's almost like giving out PJ rides buys you access to powerful government officials. The piece also had this fascinating exchange where Crow was asked, you know, would you be friends with Thomas if he wasn't a Supreme Court justice? And Crow says, quote, it's an interesting, good question. I don't know how to answer that. Maybe not. Maybe yes. I don't know. Okay. Just pause on that one for a second. He's also asked, did he ever consider his friendship as a ticket to quid pro quo? To which he says, quote, every single relationship, a baby's relationship to his mom has some kind of reciprocity. And to be clear, that's definitely not a no to the ProPublica question. Not a no, not even really a soft no.

It's kind of a yes, but. So that was also a useful rejoinder, I think, to critics out there of the ProPublica reporting. Leah, you had a Twitter thread last week because Twitter was still a real and useful thing last week. We will see if it still is next week, but last week when it was. It connects some of the why is this a big deal objections to the reporting on Thomas to Thomas's own jurisprudence. And, you know, as we've already started to talk about a little bit, there could well be specific jurisprudential connections to draw that matter, right? Justin Elliott from Popublica, when we had him on the show last week, talked about Justice Thomas's evolving views on Chevron and deference to administrative agencies as maybe, maybe,

who knows, connected to some of the relationships and social circles in which Thomas moves. Thomas defenders this week have also been explicitly taking aim at New York Times versus Sullivan, right, the Supreme Court case that provides robust First Amendment protections to media defendants when they're writing about public figures. Thomas has been increasingly vocal about his interest in revisiting Sullivan and rolling back protections for the media, totally unrelated to this kind of media scrutiny of, say, his relationships. I don't know, but it doesn't seem crazy that there might be connections. And then there is the question of rank hypocrisy when you consider that Thomas appears to have been, at the very least,

careless in failing to report this real estate sale of family property to Crow in 2014. So again, back to your Twitter thread. You mentioned examples of recent cases in which Thomas has been singularly unforgiving when it comes to errors and omissions on the part of, say, criminal defendants. Do you want to just highlight a few of those? Yeah. So the one that I immediately flagged because it is often top of mind is Shin v. Ramirez, which is an opinion authored by Justice Thomas that said, when your state-appointed lawyer fails to introduce evidence of your innocence in state court, that's your fault, the defendant's fault, and it's actually illegal for a federal court to consider the evidence, even in a capital case. Then there's Patel v. Garland last term, where he joined an opinion by Justice Barrett

concluding that federal courts couldn't review factual claims underlying an immigration judge's denial of relief from removal with the effect of leaving in place a deportation order for a 30-year residence error on a driver's license application. In the words of noted liberal squish Neil Gorsuch, the majority was willing to assign to this, quote, bureaucratic mistake life-changing consequences, even though nothing in the statute required it. One other case that Nick Bagley, your colleague Leah, flagged on Twitter is Bowles v. Russell, which is a 2007 case in which a federal court basically told a petitioner that his notice of

appeal was due on February 27th. So, okay, he filed his notice of appeal a day early, February 26th, only to be told that he was too late because the judge had gotten it wrong. The deadline had actually been February 24th. This was the judge's fault. And Justice Thomas for the court said tough. So singularly unforgiving of even good faith errors in very, very high stakes contexts. But I just have a feeling that he would not apply the same kind of standard to his own failure to report in 2014. Yeah, I have that feeling too. And we will get to Reed versus Gertz in the opinion recap section. Spoiler alert, not exactly understanding of different procedural choices there either. But you know who thinks that Chief Justice is doing

a great job addressing all of this ethics stuff? Mitch McConnell. I have total confidence in the chief justice of the United States to deal with these court internal issues. On the heels of the Supreme Court's Middle Press Stone order, you know, which again, Justice Thomas would have allowed the lower court's decision to go into effect, former President Donald Trump promised to appoint rock solid constitutional conservative judges in the mold of Justice Antonin Scalia and the great Justice Clarence Thomas, who is under siege right now. He's under siege right now for doing nothing.

And we know he certainly will have some options from his pool of judges on the Fifth Circuit, as well as district courts in Texas. I mean, seriously, like, think about the appointments in a second Trump administration. Wow. I feel like Melody might need to cut that. That's just too, that got too dark too early in this episode. Oh my God. Sorry, please, please, please listen on.

Oh my God. So let's move on to the argument recaps. So first up is Pugin versus Garland and Garland versus Cordero-Garcia. This is the pair of cases we previewed last week about the meaning of obstruction of justice for purposes of the definition of aggravated felony under the immigration laws. An offense relating to the obstruction of justice is one of different kinds of convictions that subjects non-citizens to mandatory removal from the United States because it is an aggravated felony. So it matters a lot whether the types of convictions at issue in these cases, like accessory after the fact and witness

dissuasion, are in fact related to obstruction of justice. The argument in the case didn't reveal a ton of clarity or consensus. Again, the big question was whether to obstruct justice, a proceeding or investigation needs to already be ongoing. The two lawyers for the non-citizens in the consolidated cases, Mark Fleming and Maddie Hutton, said basically yes. The Solicitor General's office said no. And the argument devolved, or I thought it did at least, and it feels increasingly common to me that this happens, into increasingly outlandish hypotheticals. So let's just play one example from Justice Alito. What if it's pretty clear that the wheels are going to start turning pretty soon? Let's say that a new district attorney is elected in a county

and the district attorney says, I'm going to crack down on organized crime in this place. And it's known that the detectives in the DA's office are questioning a particular person. And it's also known that a grand jury is going to begin to sit on Monday. So if someone who fears that he or she is going to be indicted by that grand jury approaches this witness on Sunday and says, here's $10,000 and a ticket to a place where there's no extradition treaty, be on that flight and stay there until we let you know, or we're going to wipe out your family. So that's not obstruction of justice as you see it.

But if the person waits till Tuesday, it's too late. I mean, look, count your blessings. Black Santa did not enter the chat. Okay, not that kind of outlandish. That's true. You're right. Right. But just like totally divorced from reality. And it's like they don't really have a great sense of the relative risks on both sides or possible implications of the party's positions. You know, few additional observations. Justice Thomas just sounded pretty chill, like disconcertingly unconcerned during this sitting. You know, this is not someone who sounds like he is stressing even the slightest bit about the media storm swirling around him. I know. I was listening to to sort of see, is he going to be quieter than usual? Is he going to sound chastened in some way?

Absolutely not. Like not one hint of that. Donald Trump says he's doing great. That's right. That's right. But back to these two cases in particular. So when the court took them, it seemed like they contained both statutory interpretation questions. And then there was a question, I guess, not granted, but certainly in the background of the case, regardless, about Chevron deference, just a deference to agency interpretations. And they didn't, again, take the Chevron question. But the silence around the fact that this was an agency interpretation

being debated was kind of deafening to me. So you have in these cases the interpretation of the Board of Immigration Appeals, and the lawyer for the Solicitor General's office made just a few references to the BIA, but it was mostly just like jurists and lawyers arguing about the meaning of obstruction of justice and various other terms without a clear indication that it might matter or how it might matter that an agency has interpreted a statute. I mean, maybe it doesn't matter here, but maybe we should get a sense of why. It just feels increasingly clear to me that they want to basically ghost Chevron.

They don't want to deal with overruling it directly. They want to ignore it and pretend it doesn't exist. But that just seems wildly irresponsible in view of how important Chevron and deference to agencies is in the lower courts. Like what are lower courts supposed to do with Chevron right now? I genuinely don't know. I mean, it's abandoned just like Lemon was. They clarified that one. But more generally, it really does feel like they are treating Chevron like Voldemort, where you're just like not allowed to say his name. And that name. And it's super weird. I don't know what lower courts are supposed to do. I think the rational thing would basically just to do alternative holdings. If I was interpreting this statute without any deference for the agency, here's what I would say. If I gave deference to the agency, here's what I would say. because, I mean, otherwise, it just feels like

you are walking into a completely different decision tree and decision game. I'm sure that's right, tactically, but I just wonder whether that's not just, like, forcing judges to engage in bad faith, because, like, maybe they just don't, you know, and that's, like, that's what the court's, just, like, irresponsibility is requiring here. I think you're right, that's what lower court should do, but they're going to then say, here's what I would have concluded regardless. It's like, maybe they wouldn't have. But the point of Chevron is like,

so long as it was reasonable, that's fine, that's enough. And so if they're layering on alternative grounds or holdings, because they understand this like weird liminal status, Chevron is on the way out, but hasn't been overruled

until Neil Gorsuch or Kavanaugh or somebody else like condescendingly scolds like litigants on lower courts for not having recognized the abandonment of Chevron. We're somewhere between Chevron being the law and that end point. But like, I don't know how long

we're going to be in this interim space. But anyway, that I thought was something kind of striking about that argument. I mean, it's almost like having a chaotic Supreme Court isn't good for judicial decision making and judicial administration and all of the other federal courts. Go figure. Turns out it is not. Okay, next case up is Groff versus DeJoy. That's a case we previewed last week, and it's about what sorts of accommodations an employer has to offer

when an employee says that some aspect of their job is inconsistent with their religious beliefs and practices. So the plaintiff in this case, Groff, was a rural postal worker who did not want to work on Sundays for religious reasons. And he didn't work in like a big post office where shift swaps might be no big deal. This was a small rural post office. And at points, there were only two other employees in that office. One of them eventually quit. One tried to transfer. And this is all at least in part in response to having been required to cover Groff's shifts. So the key law here is a provision of the Civil Rights Act of 1964 that prohibits discrimination against workers on the basis of their race, color, religion, sex, or national origin. And in 1972, Congress amended the act

to include even greater protections for workers. It required companies to reasonably accommodate all religious practices by employees that can be achieved without undue hardship on the business. Then in 1977, the Supreme Court decided Trans World Airlines v. Hardison, interpreting the term undue hardship to mean that religious employees' beliefs need not be accommodated if doing so would require a business to, quote, bear more than a de minimis cost. As Solicitor General Prelogger made clear at the oral argument, Hardison, in addition to articulating this standard, provided a general framework that the EEOC, the Equal Employment Opportunity Commission, and courts have been using for almost a half century to figure out

how to balance religious accommodation requests by employees with the business needs to employers. And, you know, the federal government says it's all worked pretty well. But the challenger here was denied a religious accommodation and in response has launched an attack on that long governing standard in Hardison, basically asking the court to overrule the case because it is insufficiently protective of religious liberty. And given this court's general solicitude toward claims of religious liberty, it's not hard to see why. And still, a majority of the court, even this highly adventuresome court, seemed a little less interested in radically overhauling the law of workplace accommodations for religion than at least I perhaps expected going in.

I totally agree with that. So let's start with a clip from Justice Kagan, who is basically reminding both Groff's lawyer and all of us that in statutory cases, that is cases in which the court has just interpreted a statute, there's supposed to be an incredibly high bar to overruling a prior case. So the logic is there's a statute, the Supreme Court has interpreted that statute. If that's not the right interpretation, Congress can fix the statute if the court got it wrong. And if Congress doesn't do anything to respond, the court is not supposed to revisit and overrule its statutory holding. So that is a longstanding principle. There's supposed to be a super strong presumption of stare decisis in statutory cases. So here is Kagan making this point. I mean, this is a statutory stare decisis case. And we've said over and over that when there's a statute involved rather than the Constitution, stare decisis is at its peak. And this has been, you know, for decades, this has been the rule. Congress has had that opportunity to change it. Congress has not done so. You can count on like a finger how many times we have overruled

a statutory ruling in that context. But then Justice Alito jumped in to basically argue that even though this Hardison was a statutory case, the Supreme Court has so radically transformed the law of free exercise in the meantime, that all of that upheaval justifies more upheaval. This really feels like he is trying to channel like, look what you made me do or something. Basically, chaos supplies an excuse for more chaos. I think that's the argument. So here he is on this. Mr. Street, do you think that a change in this Court's understanding of the meaning of the religion clauses of the First Amendment is a relevant factor in determining whether the statutory interpretation in Hardison should be revisited? It's really hard to understand the decision

in Hardison except as an exercise in constitutional avoidance. Although the Court didn't mention that concept in its opinion, that was very prominent in the briefs and in the oral arguments in Hardison. And a way to understand the adoption of the de minimis test was the view that the establishment clause, as interpreted in Lemon, which talked about anything that advances religion, would be violated by any departure from strict neutrality between employees who wanted a secular exemption and those who wanted a religious exemption. But Abercrombie and some of our later cases do make it clear that that is an incorrect interpretation of the Establishment Clause. So even though constitutional avoidance is not mentioned there, do you think that is a

relevant factor? And Justice Kagan did not let this, either the question that Justice Alito posed that we just played and the answer, which was basically that everyone, so the heart is in court and Congress was operating under what we now see was an incorrect understanding of the First Amendment. And for that reason, that prior case is now up for grabs. So Kagan was not going to let any of that stand unchallenged. So let's play that clip now. And that's the clip that we played part of earlier, which somehow set off Leah's spider sense on the Mifepristone case. But we'll play the whole exchange here.

Can I say I think that that's a – sorry. Go ahead. No, please. No. You go first. Justice Kagan. I think that that's an unusual theory. It's good that Justice Kavanaugh interrupted me because I would have used a different word than unusual. I mean, now we're guessing as to what the court may have thought in Hardison, which it never said in Hardison,

or what Congress might have thought, even though it never said it, you know, that maybe everybody was motivated by an erroneous view of the Constitution, even though that erroneous view of the Constitution, you know, doesn't appear in any part of Hardison and doesn't appear in anything that we can point to in the congressional record. And that's why we're going to overrule a statutory precedent, because it might be using our sort of fortune teller apparatus that, you know, or, you know, soothsayer apparatus, that that might have been what was in people's minds. So this is what I was referring to earlier, when I also mentioned the Kagan digs at Aligado during this argument, I was just like,

they basically telegraphed like what's happening behind the scenes. A different word than unusual. What word, Leah, do you think she would have used? Fucked up. Dumb as shit. Again, I want to see that burn book. I know I never will, but yeah. Those might be in there. So it is clear where Justice Kagan is. It's clear where Alito is. Roberts was basically right in line with Alito here. What was much more surprising was that Kavanaugh and Barrett and maybe Gorsuch all seemed more sympathetic to the Solicitor General and the post office than I had anticipated. But then maybe, again, because chaos finds its level, Roberts, because the other conservatives seem to be kind of reasonable in this case, was migrating toward Alito. And as we will discuss when we get to the counterment

argument, Roberts was actually making a pretty strong play for the biggest villain at SCOTUS this week, I thought. Anyway, so here is not actually making a play for that, at least this week, Kavanaugh, who was still focused on religious liberty as the lodestar. But here seemed to suggest that maybe the seeker of this accommodation could end up, or the granting of an accommodation, could end up burdening other people's religious liberty. So that, I think, gave him some hesitation. So let's play that here. One thing about this case that I think makes it a little more difficult is that there can be religious interests on both sides. And I just pick up on Justice Kagan's questions. So you have a group of employees who are all religious,

let's say, but the Catholic and the Baptist don't get it, don't get the Sunday off because they're told you're the wrong religion or you have the wrong religious beliefs versus the person who has the right religious beliefs to get the Sunday off. Does that matter? If I'm understanding the hypothetical correctly, you have one employee who has a strong objection to working on Sunday and others who do not. One who has a religious, say your client, okay, and then you have a Catholic who says, well, I would prefer not to work on Sunday either, but my religion doesn't compel me not to work on Sunday. And a Baptist says the same thing, and a Jewish employee says the same thing on Saturday. But that's not good enough. So your religion's not good enough. So your religion's not good enough. So there's a religious interest, arguably, in that sense, too,

as some of the amicus priests point that out. Is that irrelevant? Should we think about that at all? It seems concerning that you're told, in effect, you don't get Sunday off even though you're religious. The other guy next to you get Sunday off because he's religious, but his religion gives him a little more benefit there. This is just like a totally sane and reasonable way to view this case, as we suggested in our preview. It's not like the other

employees are just saying, look, this other employee's religious exercise or religious beliefs or practices are giving me a sad, right? It's religious exercise or religious beliefs or practices are giving me a sad, right? It's actually materially altering their working conditions and imposing burdens on them that are both prohibited by the collective bargaining agreement. It's also burdens that other employees don't have. And so anyways, and then again, you know, Justice Kavanaugh expressed a concern about the impact on business. So if those employees say this is unfair and morale starts going down, they make complaints, someone leaves, that's the kind of thing that you agree can be effect on the conduct of the business and therefore the employer can take that into account at that point. It can be evidence of effect on the conduct of the business, but morale or threats to quit or whatever the case may be needs to have a concrete effect on the operations of the business.

And I hate to belabor this, but what exactly does that mean? So I think it's going to be a context-specific case-by-case analysis. Okay, what does that mean? Yeah, what does that mean? So I think it means the exact same thing it means in the ADA context. We cite the guidelines at pages 43 to 44. I mean, anyone running a business in America knows that morale of the employees is critical to the success of the operation. And Justice Barrett got into this, sort of made similar points. Let's play her here.

Well, I mean, I have some of those same concerns because it seems to me in the ADA context, unlike this context, you may have fewer accommodation requests. I mean, you might have many religious people in a workplace seeking the same accommodation for Sundays off or other kinds of accommodations. And I guess it seems to me, as Justice Kavanaugh said, morale can be very important. It kind of seems to me that you're defining conduct of the business as the bottom line, like you want a dollar amount on it. So if you lose efficiency and you want to measure, like, well, we're not able to deliver as many Amazon packages, so it's costing us some of our contract. We're not as able to sell as as many groceries. We have to close early on Sundays because we can't cover it,

and we're losing the sales in that part of the shift. I mean, what if it's just its morale? Maybe employees aren't. I mean, in things that might be very difficult to prove and put a dollar amount on, employees aren't as productive because they're grumbling. They're not willing to kind of go the extra mile, put their best foot forward. Those might be very difficult things to put a dollar amount on, or the dollar amount might be small, but why wouldn't they be things that affected the conduct of the business?

Even Neil, Loki Gorsuch, seemed less inclined to blow things up than I expected. So let's play first a really impressive riff by Solicitor General Prelogger, and then we'll discuss Neil responding. Our concern with that is if the court were to announce a new standard, I think it would come with all the costs of destabilizing this area of the law and unsettling whether the court means to overrule Hardison on its backs, for example, or potentially call into question all of the established areas of law that have developed that we think have drawn the right lines here. And if I could, there are really only three categories where religious accommodation requests come up again and again. And I think it might be helpful to the court if I provide a really quick summary of those

three categories, because I think it shows how the law has developed in this area. The first category is scheduling changes. That can include things like Sabbath observance, obviously, but also things like midday prayer breaks or wanting to come in later on a Sunday to permit church service. And in that area, courts regularly are requiring employers to provide flexible work schedules if the work can be shifted to a different time of day. So you take your midday prayer break, but then you make it up on the back end. That is what courts are doing today. Also, you can facilitate voluntary shift swaps. That is a common way to deal with Sabbath observance. And if those fail, you can consider lateral job transfer to a different position where there's not the Sabbath conflict for that accommodation. In the second category, it's dress and grooming

policies. And there today, courts are regularly granting accommodations and rejecting undue hardship defenses. The narrow category of cases where that's not happening is when there's a legitimate safety concern, like you work in a steel mill and you can't modify the dress code because wearing a skirt will interfere with operating the machinery, for example. The third category involves religious expression in the workplace. This can include displaying a religious symbol or potentially needing an exemption from employer-sponsored religious speech at a meeting. There, too, courts are regularly granting accommodations, and it's only in the meeting, there too, courts are regularly granting accommodations. And it's only in the circumstances, for example, where the religious speech would amount to harassment of co-workers or customers that the undue hardship defense is credited.

Okay. So now here's Neil being both kind of a jerk, but also trying to compliment her at the same time. He's trying to fight his type, I guess. But in those, I'm sorry to interrupt, but in those three buckets, I think there's common ground that the law would require those kinds of accommodations you just outlined. So I'm not so sure. For example, let's take the facts of this case. Petitioner obviously thinks that he was entitled to an accommodation, even though— Actually, I don't want to take the facts of this case. I want to take your three buckets.

I like them. Okay. I mean, as I think that opening clip makes clear, like she was just really masterful in this oral argument. Like she was so clear and seemed really, you know, if this is a case where she has a few votes from unexpected quarters, I think that will largely be on the strength of this argument. So maybe one more exchange, again, Prelogger followed by Gorsuch. Also, you know, Gorsuch seeming to concede that Prelogger is pretty good at what she does. So I think I might be anticipating your next question, but I just want to clarify that I wouldn't call it a substantial cost test because we do have a concern with the court articulating some new verbal formulation if that calls into question the way that the commission

and the lower courts have been applying Hardison for the past 46 years. We think that those results are consistent with the facts of Hardison and the lower courts have been applying Hardison for the past 46 years. We think that those results are consistent with the facts of Hardison and the court's observation there that it's substantial costs that cross the line. So I don't want to resist that at all. That is common ground. But I do have concern with the court overruling Hardison or at least suggesting that there's a brand-new standard with all of the details having to be filled in anew

because we think that already that case law is drawing the right lines. And I think you are anticipating my next question, as you usually do. Should I order a wellness check on Neil? I'm sure he will return to type very shortly, including actually in the next argument. There you go. There you go. It was a short lift. Things always revert to the mean.

They really do. This was very much on display. In the next case, we're going to talk about Counterman v. Colorado, which we also previewed and which involves a First Amendment challenge by an individual convicted under a Colorado law for basically a campaign of stalking and harassment of a singer who ended up being so terrified and traumatized after these thousands of messages over years after having blocked this individual. She ends up moving out of state for a while, kind of abandoning her music career because of it. Counterman, who was convicted here, basically argues that this speech was protected by the First Amendment, that the First Amendment will only allow conviction under these circumstances for an individual who acted with specific intent, and that some sort of objective test under which you would just need to show that

like a reasonable person would have understood the communications as threats would open the door to criminalizing misunderstandings. Like that's really the argument that he's making. So let's turn to the argument. As we said, the guy making a play for biggest villain of the week, although obviously Sama did him in the Myth of Peristone case, but the biggest villain at oral argument this week, John Roberts, wanted us to know that much of this supposedly threatening rhetoric actually isn't a big deal, ladies, you hysterical ladies. Well, saying doesn't come close to a protected speech. Here's one of the statements for which he was convicted. Staying in cyber life is going to kill you. Come out for coffee, you have my number. In what way is that threatening, almost regardless of the tone?

When it's put into the context, Mr. Chief Justice, what is being said here is if you don't come out for coffee with me, bad things are going to happen to you. There's other... This is, I'm sorry, this isn't remotely like that. It says staying in cyber life is going to kill you. I can't promise I haven't said that. Come out, come out, come out for coffee. You have my number. Gorsuch isn't quite saying this is nothing, but he is saying people are just so easily offended these days. Seems like you just can't stalk someone without the woke mob coming for you. We live in a world in which people are sensitive and maybe increasingly sensitive.

As a professor, you might have issued a trigger warning from time to time when you had to discuss a bit of history that's difficult or a case that's difficult. What do we do in a world in which reasonable people may deem things harmful, hurtful, threatening, and we're going to hold people liable willy-nilly for that? I mean, again, the Solicitor General says a statement that's based on its content and context, putting aside its intentions, I suppose, that's threatening a reasonable person is inherently harmful. How do we talk about history? I mean, and just to go back to the Roberts clip for one second, it's both like just the kind of weirdly humorous tone he seems to be trying to take. It's so dismissive. And the audience sort of laughs in response to his suggestion that he has made comments like the ones that are actually like in some of the messages at issue in this case, like it was just so gross. But then Gorsuch Wright sort of turns from, you know, he's not quite as dismissive as Roberts was, but does seem to suggest that, again, like the real

problem here is how sensitive individuals are. And Barrett then chimes in on the same point, but like make it way weirder. You can look at a college classroom, say, or a law school classroom, and I can say if Justice Gorsuch or I were sitting in that context, let's imagine a professor who wants people to understand just how vicious it was to be in the Jim Crow South, and puts up behind them on a screen a picture of a burning cross and reads aloud some threats of lynching that were made at the time. Purely educational purpose in the teacher's mind. But students feel physically threatened. They fear for their safety because they don't understand it.

Whereas if Justice Gorsuch and I are looking at that situation, we'd say, well, a reasonable person would understand the educational context of that. So how could the student think of it? So I think context doesn't get you all the way there. I think it's who is the reasonable person, so who is it? It's a reasonable person in the situation, but in that situation, an educational setting where there really is no threat of direct physical violence to a person, it would be objectively unreasonable for anyone to see that as a threat.

Black students sitting in the classroom. If it's not a threat of violence that the person is worried about their safety. But the person is reading in the first person an account of what was said and threats of lynching. So they're using the first person and saying it. I understand how it makes them uncomfortable, but unless that person can, again, reasonably perceive it as a threat to their safety in that situation, it wouldn't be a true threat. I mean, I don't even really know what to say about Barrett here. This is veering into Black Santa territory. It's almost like she is trying to attach the attacks on teaching the racial history of the country and CRT to Black students. I mean, what world, what closed universe is Lady Safe Haven occupying? Sometimes you just get flashes of it in these questions, and this was one of those times. This question came close to just like, can't a good professor just like use the N-word in class anymore? Like that really felt like that was a TLDR of this long hypo that she was setting up. So that's where Barrett's mind went. And, you know,

Alito enamored of his own hypos yet again, and gets a little reaction from the audience. But isn't it inevitable that speaker intent is going to be important, regardless of the mens rea that is applied to the other element that we were talking about earlier? I mean, somebody stood up here and spoke as fast as an auctioneer, and I couldn't understand what they were saying. And I kept saying, would you please speak a little more slowly, speak more slowly, so I could understand what you're saying. And I kept saying, would you please speak a little more slowly, speak more slowly so I could understand what you're saying. And the person just continued to do it. And I said, you know, if you continue to speak that fast, I'm going to have a fit. Nobody would think I was actually threatening to have a fit. It depends on my intent in the

context of, in the context, I mean, maybe some people would. You know, just in general, there was something super odd to me about the justice is like poo-pooing a case involving stalking and the idea that any of these statements would rise to the level of stalking or threats kind of saying like, suck it up, ladies, and portraying themselves as these real free speech warriors with tough backbones and everyone else is the weak snowflakes when, I mean, Sam Alito bitches publicly about amicus briefs and blog posts and says that they're threatening and intimidating the court. Like he's literally said when Senator Sheldon Whitehouse and others file amicus briefs and a Harvard law professor writes a blog about the ideological composition of the court. That's intimidation. It's just astonishing. I know. And there was a brief reference in the argument to an amicus brief that we wanted to highlight.

It was filed by Professors Genevieve Lackier, Evelyn Dueck, and Eugene Volokh. And it basically, this case was framed as, and I think really discussed and argued as a case about threats and the true threats doctrine. But their point is that this is actually a stalking case, and a stalking case is different from other kinds of threat cases, actually including Alonis, the sort of predecessor case we talked about on the last podcast that the court didn't resolve as a First Amendment case, just issued a statutory opinion. But again, that wasn't a stalking case. This is a stalking case. And there is a separate body of law in the lower courts about how the First Amendment relates to stalking. And that's distinct from threats, as the amicus brief details. And some examples of this are, you know, stalking laws require courses of conduct, right? So, you know, if we're talking about stalking, that does involve speech, there are going to be lots of instances of some prohibited speech directly to the person being stalked. You know, proof that the speech was both reasonably likely to and did, in fact, cause significant emotional distress. Like here, for example, you know, this is an individual who was prosecuted for sending a ton of messages after the victim, the stalking victim, blocked him. So it wasn't

about things posted on social media, which again, was the case in Alonis, the previous true threats case. So there are all of these reasons that stalking is distinct, but it was frustrating that it didn't feel like the justices had really understood that and they were casting this case in much broader terms in a way that could be really problematic. It's so weird. I thought they could have taken the time to understand this case since they gave themselves two extra days for Justice Alito to push out that four-page temper tantrum. Alas, didn't seem to do the trick. Also during this argument, we seem to learn that Justice Katonji Brown-Jackson has a dog. So she was participating remotely at oral argument.

And there seemed to be a moment that captured, I'll call it a bark, but after the clip, I'll say what I'm going to call it from here on out. Is your standard the reasonable person in that situation would have perceived the statements as a threat? Is that what you're saying about the reasonable person? This is the new Borking at the court. You heard it here first. I want to know. I want details about this dog. What breed? How long? What name? She needs to give a review to someone. Maybe she needs to come on a podcast. I agree. Maybe a podcast that's preoccupied with dogs and the many joys of them. All right.

Standing invitation, obviously. Okay. So we will spend time in our next episode debriefing the second week of oral arguments of the April term. Maybe we'll just briefly mention two cases that we have an eye on. One, Locke to Flambeau ban versus Coughlin, which is a question regarding whether the bankruptcy code expresses unequivocally Congress's intent to abrogate the sovereign immunity of Indian tribes. It's a very big term for various Indian law questions. And this case is on the list of important cases. And then second, Tyre v. Hennepin County, which is an important takings clause case. So we will have a full rundown on both of those cases after the arguments. So we also wanted to cover some opinions as well as other assorted news and culture. The court is finally issuing opinions and they are back to announcing them from the bench. Although those announcements are not being included in the live stream of the audio, although they were mistakenly included this week on Wednesday when the court just didn't cut the audio feed.

Audio was later removed from the C-SPAN recording, but it's so annoying. Like, they could obviously broadcast these. There's no reason not to. It doesn't matter that much. It's just like their reflexive desire to be dodgy and non-transparent whenever they can is maddening, even if the stakes, as in this instance, are low. The consequences in other contexts can be really significant. So anyway, one opinion that we wanted to highlight is Turkey, Halk Bankazi versus United States case. The case involved efforts by the Turkish state-owned bank, Halki Bank, to evade U.S. sanctions against Iran. The federal government indicted Halk Bank, and Halk Bank challenged the prosecution on a number of grounds. And here the court ruled

against the bank, concluding the district court did have jurisdiction over the prosecution and that the Foreign Sovereign Immunities Act or FSIA did not provide immunity from criminal prosecution. The bank had also raised a common law immunity argument. And here the court remanded for the lower courts to consider that argument in the first instance. So we also got an opinion in Reed versus Gertz, which was a rare piece of good news from the court. This is the case involving Rodney Reed, who was on death row for a 1996 murder he has long insisted he did not commit, and where there is very real and compelling evidence of his innocence. You know, his case has attracted tons of attention. I was reminded when this happened that my husband, who's a journalist, interviewed Mr. Reed actually on death row and broadcast the interview in 2015. So

there's been a lot of attention for quite some time. Yeah. So a Texas appeals court initially blocked Reid's execution in 2019, and Reid has been working to prove his innocence since. And part of that involves seeking access to post-conviction DNA testing of several items. Post-conviction just means after he was convicted. And the question in the case is whether he will be able to get that testing, again, testing that might conclusively prove his innocence. The technical legal issue is when the statute of limitations, the period of time for actually seeking this DNA testing under Section 1983, which is the general federal civil rights statute, when that statute of limitations, the time to bring this lawsuit started. Whether it's the end of state court litigation denying Reed's request

for DNA testing or much earlier when the state trial court first denied it, you know, rather than after subsequent appeals affirmed, you know, that decision. The Supreme Court, in an opinion by Justice Kavanaugh, ruled for Mr. Reed finding that the window to file started at the end of the state court litigation, and so Reed's filing was timely. This was a short six-page, straightforward, and really sensible opinion by Justice Kavanaugh, joined by the Democratic appointees, as well as the chief and Justice Barrett. And again, credit where credit's due, this was a good opinion. It's the only opinion that makes sense conceptually. You don't know whether you've been denied due process, which is what

Reed has said, denying post-conviction DNA testing would do? You don't know whether you've been denied due process, which is what Reid has said, you know, denying post-conviction DNA testing would do. You don't know whether you've been denied due process until you know what the process and procedures are that are available to you. And you don't know that until the end of the appeals process. It's also the only sensible result for federalism, right? And the distribution of cases between federal and state courts, because had Reid lost, then after the trial court ruled, Reed would have both had to appeal the decision in the state appellate courts and also immediately gone to federal trial court, which just makes no sense. Then it also has the welcome effect of reviving Reed's efforts to finally get the evidence tested and possibly prove his innocence.

Naturally, Justice Thomas dissented, deploying several Thomas trademarks, graphic and gratuitous description of the crime in the case, a pathological disinterest in the injustice of the result of his interpretation, and insistence on reading every legal doctrine and statute in as hostile a fashion to the criminal defendant or death row inmate as possible. He also seems to invite the Texas officials to maybe just go ahead and execute Mr. Reid while the testing is pending. So he says, quote, if there is a mitigating factor to today's decision, the court misguidedly allows to proceed is no barrier to the prompt execution of Reid's lawful sentence. Yeah, that's a death sentence. He's literally saying the court is wrong. That is not a barrier to Texas moving promptly to execute him while the DNA testing is ongoing. Like that's a monstrous thing to write. Yeah. And he also suggested that Reed didn't have standing to challenge the decision. Even though Justice Thomas allowed the Mifepristone order to go into effect, despite the fact that that case was brought by a group of

doctors who definitely had no standing or likelihood of future injury, whereas Reed could possibly be executed for a crime he didn't commit. And Justice Thomas is like, yep, no injury here. I'm sure in the Thomas opinion that he did not see fit to share with us. He had done a very careful analysis and concluded that the doctors in question actually did satisfy Article 3 standing requirements. I'm sure of that. I'm sure. Anyways, technically, Thomas said in Reed's case, his injury wasn't redressable by a judicial decision, which is also just wrong. But anyways, Justice Alito wrote a separate dissent that was joined by Justice Gorsuch in Reed. And we did want to flag something in a pending case that is actually a few weeks old,

but we haven't had a chance to mention because of all of the breaking news. And that's a case that we've talked about a lot on the show, Moore versus Harper, the so-called independent state legislature theory case. So basically last month, the parties to this big case filed briefs in response to the court's sua sponte order that they give the court their views on whether the North Carolina Supreme Court's decision to rehear the underlying case deprived the U.S. Supreme Court of jurisdiction. So basically, whether that state court development meant the U.S. Supreme Court no longer had the authority to decide this case that had been argued late last year. North Carolina basically agrees, says, yes, no, there's no jurisdiction, dismiss the case. But the other parties say, no impact, please go ahead and decide the case.

And the fact that this was last month that these briefs came in and the court has not dismissed the case yet does not conclusively establish anything, but certainly does, to my mind, suggest there's a, you know, maybe better than even chance the court does go ahead and decide the case, notwithstanding its having been revived in the state court. What did you make of it? Yeah, no, I agree. I just think that the extent of the delay together with the fact that parties are asking the court to continue to the decision and basically most are just saying,

well, it doesn't require you to do anything, makes me think they're going to say something, but who knows? We'll see. All right, so we will leave it there for now. Don't forget to follow us at Crooked Media on Instagram and Twitter for more original content, host takeovers, and other community events. And if you are as opinionated as we are, consider dropping us a review.

Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw. Produced and edited by Melanie Rowell. Audio engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Ashley Mizzho, Michael Martinez, and Ari Schwartz, and digital support from Amelia Montooth.