Strict Scrutiny - What's The Mouse Going To Do?

Episode Date: May 25, 2020

Kate and Leah recap the other big argument from the May sitting they didn’t get a chance to last time -- the faithless (or is it Hamiltonian? Or defecting? Or mavericky?) electors cases. They also discuss some findings about the Court’s telephonic arguments and the BIG (aka not so big) opinions the Court has recently released. Follow us on Instagram, Twitter, Threads, and Bluesky

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

I mean, in truth, we should say we had so much to talk about last time that we just couldn't fit it into a single recap episode. And so this is basically recap part of the second week of the May sitting. Exactly. Like I said, too much fun. All right. So what are we going to talk about today? What didn't we fit in last time?

So we have some quick other court updates, some opinions that we just wanted to alert our listeners to because they're in some of the cases that we talked about. We also wanted to do a recap of the faithless elector arguments, which we didn't have a chance to cover when we did the end of the faithless elector arguments, which we didn't have a chance to cover when we did the end of the May sitting recap, and then some other court culture stuff. We had two single opinion days. So we all get really riled up at 10am, usually on Mondays, when the court has announced previously that it's going to have opinions. And we're in, you know, normal circumstances, the justices take the bench and in person deliver bench statements and then give you hard copies of the opinion if you're actually

there at the court or, you know, upload PDFs to the Supreme Court's website. In the age of the pandemic, instead, we were just all at home waiting for the Supreme Court website to upload opinions and they kind of spaced them out in, you know, 10 or 15 minute increments. But these were somewhat anticlimactic days. We just got one opinion on each day and they weren't any of the previous trial. That all seemed to us and to the justices like the obviously correct outcome when the argument happened. So the result wasn't particularly surprising. And then the other decision is Apati versus Sudan. And that was a case about the availability of punitive damages for conduct that predated the acts abrogating states foreign sovereign immunity from suit and this the day of potty was announced was actually a day that we were thinking about doing an instagram live show for opinion announcements and we didn't end up doing it and honestly i'm kind of glad and think that was maybe a sign that maybe that wasn't going to be that big a day. So hopefully when we actually do the Instagram live shows for opinion handouts, we'll get some better ones or at least more opinions than just a single unanimous one. Right. But we do still plan to do those. And then the other case development that I

wanted to flag is not related to the Supreme Court, but it's a major decision. A few weeks ago, the U.S. Court of Appeals for the Sixth Circuit found that there was a fundamental right to education and literacy in a decision involving Detroit schoolchildren who argue that the state of the Detroit schools deprive them of their fundamental right to education and literacy. And the decision and the pleadings in the case really outlined some truly horrific conditions in the Detroit schools. I actually excerpt some of the portions of the complaint for my constitutional law students when we discuss San Antonio versus Rodriguez and other cases, because some of these schools, you know, the tests are such that a very high percentage of the students in third, fifth, and eighth grades aren't operating at proficient English. They have textbooks that say Bill Clinton is still president. It's just really horrible conditions in the schools. So a U.S. Court of Appeals for the Sixth Circuit found that the plaintiffs had alleged a fundamental right and that there

was a fundamental right to education and literacy. After that decision came down, the governor of Michigan, Big Gretch, Gretchen Whitmer. Wait, did people in Michigan call her that? Yeah, Big Gretch. She's had some Big Gretch moments. My family's in Michigan. I've never heard that. Big Gretch. I love it.

This is a recent thing. She settled the case. The settlement, I believe, includes the dismissal of all claims against Detroit and the state officials. So it's and the reason that's relevant is because yesterday the full U.S. Court of Appeals for the Sixth Circuit released an order saying they were taking the decision en banc and thereby vacating the lower court opinion. And I think that that development is curious, and I'll be watching it, given that it's not clear that there is a live controversy for the full Sixth Circuit to re-decide the case, even if they vacate the underlying opinion, if there's no adversity between the parties. So,

and again, if they've agreed to the dismissal of the claims. These are some sort of shades of the conservative justices not letting the inconvenient fact that the New York gun law being challenged in the NYSERPA case was no longer on the books, stand in the way of what they wanted to do with the expansion of the Second Amendment. Right. And I think this is part of the problem, frankly, with that decision being 6-3. I mean, obviously, it's a lot better than the decision going the other way. But, you know, if you give a mouse a cookie, what's the mouse gonna do? You know, mouse is gonna want more of those cookies. And, you know, here, why not take the case on

bonk and kind of dare them to tell you that you aren't allowed to re-decide a case once the party's settled. The Give a Mouse a Cookie, there's like nine follow-on books. The Give a Mouse a Cookie is genuinely kind of a good book, but there's like Pig a Pancake, Dog a Donut. And they get increasingly bizarre and surreal. There's no actual causal link between any. So this actually may not even be a Mouse and cookie situation. This may be more like a dog and donut situation, which is like, this makes no sense. Anyway, okay, well, we'll sort of keep an eye on that one. Yeah. Okay, but let's turn to the case. The big case that we didn't have a chance to talk about in our last recap episode was the last case or group of cases that the Supreme Court heard

on the Wednesday of the second week of its May sitting. And that is a case involving the so-called faithless electors. So what are so-called faithless electors, Leah? You want to start us off? So faithless electors is the term for individual electors who cast their votes for an individual other than the person who won the popular vote in a state. And I just have to note that the term faithless electors is a little bit pejorative, and it feels like it's kind of stacking the deck. So the people involved in these bit pejorative, and it feels like it's kind of stacking the deck. So the people involved in these cases, I think, would prefer for them to be called Hamiltonian electors or something other than faithless electors. Right. And another term that's sometimes used is rogue electors, but that too has like a pejorative

cast. But that too sounds bad. Yeah. So the kind of Hamiltonian electors, I think, is a reference to the Federalist 68, which is one of Hamilton's Federalist papers, which describes this vision of the electors, right? So maybe let's take a step back and talk a little bit about the context of the case, who these electors are, and sort of how the case arises. So a very brief version of the backstory is that, as folks probably know, we don't actually cast our votes directly for president and vice president, but we instead vote for electors who then meet in their respective states to cast their votes for president and vice president. And there's tons of debate about how this method of picking the president even got into the Constitution. There's, I think, a really good argument made in a new book by Jesse Wegman that it's actually this imperfect 11th hour solution to a problem the delegates just couldn't figure out how to solve, and that this Committee on Unfinished Parts, which is literally the committee that actually comes up with this scheme, crafts this solution that isn't actually anyone's first choice. But then sort of very quickly made at the Electoral College is this scheme for making sure the president will be chosen by men most capable of analyzing the qualities adapted to the

station and acting under circumstances favorable to deliberation. Basically, they're going to be this group of kind of refined, deliberative statesmen who will make independent decisions and judgment, right, about who would be best suited to serve in this important position of president. And that even if, you know, charlatans or demagogues might be able to convince subsets of the population in particular states to choose them as president, this kind of group, this deliberative group acting as a whole, wouldn't be, you know, wouldn't fall prey to those kinds of unfit would-be leaders. So that is a story that is told about the creation of the Electoral College. But again, it's the Federalist Papers,

their advocacy documents, and Hamilton is spinning to try to get the Constitution ratified. So it's not totally clear that that represents, you know, the real reasons the college was created, but it is at least a part of the narrative of the creation of the college and its inclusion in the Constitution. Originally, electors were picked in a number of ways. And early on, there is the idea that Kate just explained that they are exercising independent judgment to pick the president. But within a few decades, states have their voters choose electors, and electors become party functionaries who just cast their votes for the winner of the state popular vote rather than these independent statesmen or can we call them like maverick, mavericky electors? They're getting all mavericky

up in there. I just I want to relive Tina Fey's Sarah Palin impression. So that that word came to mind. So originally they're, you know, rogue, they're maverick, maybe they're faithless, like they're independent. And even after it is the case that most states sort of move to this very different model where electors are just basically tracking state popular vote. Occasionally it happens that somebody breaks ranks right with the states, you know, with the slate of electors from the state and can cast a different vote. But it hasn't happened that often. And it's never been outcome determinative. But whether these electors have a right to do this is actually this completely unresolved legal question. So, you know, it was the case that in 2016, there were a group of these so-called Hamiltonian electors. There was a bit of a movement, in particular after the November election, right, where it was very clear that Donald Trump had won significantly more than the 270 required actually to win in the Electoral College and yet had lost the popular vote by what turned out to be something like close to 3 million votes. There was this movement to attempt to persuade electors to defect and rather than casting their votes consistent with the state popular vote, to cast their votes consistent with the national popular vote, which of course favored Hillary Clinton. This is an idea that was getting some traction and a handful of electors did attempt to defect. Now, interestingly, the electors in this case were both from states that went for Clinton, but where the electors tried to defect and to vote

not for Donald Trump, but for a third party, actually, in both cases. I think in one case, they voted for John Kasich and in one for Colin Powell. But the idea, I think, was to begin to create some momentum that might spur other electors to defect, cast votes not for Donald Trump, but for someone else, whether Hillary Clinton or another potential Republican, and either to pull enough electoral votes from Donald Trump to hand the victory to Hillary Clinton, or maybe to force a vote in the House of Representatives, which is where an election that isn't decided by the Electoral College gets resolved under the Constitution. But in any event, in both of these states, Washington and Colorado, state law requires electors to cast their votes consistent with

a state popular vote. And in both cases, the electors were either removed from their positions or actually fined for attempting to cast their votes for someone other than Hillary Clinton. And so they filed lawsuits. And in one case, they win and the other case they lose. But the argument that they are making is they have a constitutional right to vote their consciences and that the state laws that would either prohibit them or punish them for voting for someone other than the state popular vote winner are unconstitutional. So the case as it was originally cast and as we were going up to the argument, a lot of people thought it was going to be a dispute between originalism and original public meaning on the one hand, given the kind

of originalist evidence that Kate outlined, that there was this expectation or understanding that was at least conveyed through some channels that electors could vote their conscience, and historical practice and consequences on the other. That is, even if there was that original expectation, it has never been the consistent practice that electors have voted independently, that states have allowed them to do so, and that we have organized ourselves accordingly. There's also a real concern about the consequences.

Would electors be able to vote independently? And so the thinking was, well, maybe this case is going to pit, you know, the justices' commitment to originalism and original public meaning on the one hand against competing considerations of historical practice and consequences. And I would say that's how Larry Lessig, who was arguing for the plaintiffs in one of the cases, kind of started out by framing the argument. The states have the power to control through law how an elector may vote. They do not. The ordinary expected meaning of the words of the Constitution against the background of the framers' deliberation make it clear that the states have no such power. He's very much striking an originalist note, right? So the ordinary expected meaning of the words of the Constitution and the background of the framers deliberation. So those are the kinds of appeals he is making. And yet,

he didn't seem to get much traction with that line of argument with the justices. No, he did not. And earlier this year, I go to this Supreme Court conference, and there's one participant in there who is a very active Supreme Court watcher. And every year, this person says some variation of the line, there are eight consequentialists on the court, there are no textualists or originalists. They're all consequentialists. And, you know, this person beats this drum about Justice Kavanaugh, about the chief, about Justice Gorsuch. And this argument was very much an indication that perhaps that's true, at least in some important set of cases, because all of the justices at various points were really concerned about what would happen if these challengers were correct, that electors do

have the ability to vote their conscience. Yeah. So maybe let's play an excerpt from Justice Alito. And we should say, you know, look, he's obviously conservative justice. He is not in any way one of the leading originalist justices. He doesn't claim to be. I think he will dabble a little bit in originalism, but he's not an avowed originalist. But it was striking that he, you know, he jumped right in with sort of this kind of question about consequences. And he was the one to first invoke the idea of the chaos that might follow if Lessig's argument was successful and the justices decided to basically upend, you know, most of the last 220 or so years of practice with respect to selecting presidents. vote is close and changing just a few votes would alter the outcome or throw it into the House of Representatives, there would be, if the rational response of the losing political

party or elements within the losing political party would be to launch a massive campaign to try to influence electors. And there would be a long period of uncertainty about who the next president was going to be. understood to mean and require. And yet, you know, as he tried to press a bunch of the justices, you know, that's not typically the only thing you worry about. And yet in the argument, it seemed to be. And so it was striking. So you're right. Alito's no big originalist, but Kavanaugh certainly purports to be, maybe not as much as Gorsuch and certainly not as much as Thomas, but he identifies as an originalist. And, you know, he jumped right on this Alito line of questioning about chaos. So let's maybe play that excerpt here as well.

Thank you, Mr. Chief Justice. Good morning, Mr. Lessig. I want to follow up on Justice Alito's line of questioning and what I might call the avoid chaos principle of judging, which suggests that if it's a close call or tiebreaker, that we shouldn't facilitate or create chaos. And you, I think, answered and said it hasn't happened. But we have to look forward. And just being realistic, judges are going to worry about chaos. So what do you want to say about that? So what do you think about this, you know, Kavanaugh coining the chaos principle of judging? You know, again, from my perspective, it was not that surprising. I don't think of Justice Kavanaugh as someone who's particularly committed to a methodology like originalism.

And I think that, you know, in his previous writings, both on the Supreme Court and on the Court of Appeals, he's a consequentialist. He is concerned about distinguishing this case from the next one that is likely to come. He's not as much concerned about the kind of method questions that you see someone like Justice Gorsuch, you know, banding about in these cases. So honestly, I was not particularly surprised. But what is curious to me is the fallout, or lack thereof, of Justice Kavanaugh and Justice Alito rather explicitly embracing this consequentialist mode of judging. What do I mean by that?

Well, after the Title VII arguments in particular, there were a fair number of conservative commentators and legal commentators who said something along the lines of it would be a betrayal if Justice Gorsuch voted with the employees in these Title VII cases, even though it was clear that if Justice Gorsuch does that, he's doing so because he thinks the best reading of the statute is that discrimination on the basis of sex entails discrimination on the basis of sexual orientation or gender identity. Here, right, you don't see any of the conservative legal commentariat being all up in arms that both Justice Kavanaugh and Justice Alito, who are regularly celebrated at Federalist Society events, are not championed the methodology that that organization and that commentariat

purports to prioritize versus results. So, you know, that is interesting to me. I have another thought, but I won't go on. And I hold that thought. I do want to hear it. And I totally agree. And it's an interesting contrast to the Title VII argument, right? So, you know, the whole premise of the Federalist Society in many ways is that there really is one true and correct mode of interpretation when it comes to the Constitution. And that mode is originalism and anything else is, you know, heresy. And it may not even be legitimate constitutional interpretation, right? Like they, a lot of folks genuinely think that, you know, you cannot possibly swear an oath to uphold the Constitution and engage in any other methodology. And so the silence was kind of deafening when, you know, and OK, put Alito to one side.

The Federalist Society really does embrace Justice Kavanaugh. And there was no I didn't hear any kind of even tisking about his opening of that line of questioning was certainly striking. I mean, you know, so one really cynical read of it is it's pragmatically important not to open the door to a lot of defections in the Electoral College, you know, on the eve of the 2020 election. And why is that? Because it's quite likely that there will be another split that is similar to or a divided outcome similar to 2016, where you have, you know, Donald Trump potentially winning the Electoral College, Joe Biden winning in the popular vote. And if it is the case that there's sort of more kind of in the popular consciousness about the possibility of defection, and the Supreme Court has just reaffirmed a constitutional entitlement to defect,

you can imagine a concerted movement taking hold to attempt to persuade electors to side with the American people as opposed to, you know, the votes of a particular state if there is this significant skew. So it does seem, who knows how it breaks. And you and I have had this conversation before. I think it is very difficult to see, you know, in the long term, what kind of the partisan advantage is, you know, to elector independence versus, you know, binding electors, right, constraining their discretion. But in the very short term, it does seem clear that Donald Trump could stand to lose from a ruling that electors can vote independently. And maybe that's part of what's muting the resistance to this very atypical mode of inquiry that the conservative justices were engaging in.

I mean, it's hard to know. Or maybe it's that the outcome in this case, as we have also discussed, it's not clear it has a partisan valiance since electors can defect in either direction. And so when the outcome doesn't have some sort of ideological or partisan valence, then the commitment to the method is less important. I mean, that also can't be right. But, yes, I agree. The silence was a little striking given that they were very explicit on this point, what they cared about. Yeah. I mean, the one other thing that I could say is that it seems possible looking a little bit beyond 2020 that a ruling that these electors have a constitutional right to vote independently, if it did actually throw the system into chaos the way Alito and Kavanaugh seemed concerned it might, could actually, you know, accelerate the demise of the Electoral College, right? So there's already a great deal of dissatisfaction. This National

Interstate Voter Compact has actually been, you know, approved in a significant number of states, you know, totaling something like 196 electoral votes. So there is a quiet but significant movement to, you know, either reform or even abolish the Electoral College that is already out there. So you can imagine chaos in the current system accelerating sort of the march toward change. And again, I can well see the conservative justice on the court not being enthusiastic about that possibility, preferring to retain the Electoral College, and that also potentially coloring their view of this case. Yes, it's hard to know. But the disparity between what we thought this argument was going to be

about, you know, this clash of methods and what the argument turned out to be, and then the lack of any surprise about that or discussion was, I think, a little striking. The other thing that I wanted to say before I cut myself off was related to what you said about the Federalist Society and other groups' stance about what the correct mode of judging is. Because I think for those of us who have a more pluralistic method and believe that history and original public meaning is relevant alongside other methods, it was in some ways refreshing to see that on some level, all of the justices understand that, of course, it is a legitimate mode of

judging to be concerned about the implications of your decision, Sometimes that concern about consequences gets derided as, well, that's just policy. Or if you're an academic who thinks or cares about consequences, that's not academic. That's just politics. And this was, I think, a demonstration that, no, it is judicious, it is academic, and it is legalistic to be concerned about the implications of your decision, drawing distinctions between different cases and concerned about historical practice and disruptions. Right. Like that's part of the law, too. That's a great point. Right. So we shouldn't be understood to be somehow criticizing the justices who seem to defect from from like a hard line stance. No, in fact, like it's great and refreshing.

And I actually thought that Noah Purcell, who was arguing for Washington state, he's the Solicitor General of Washington, did a great job weaving together all these different modes of argument. So it actually is the case, he argues, that the original understanding supports binding electors the way Washington does, right? So he made that argument. So he does think history matters. He just thinks, you know, history may not be totally conclusive, but that it has significant support for the way Washington understands what it's permitted to do under the Constitution. But he also does say, like, you know, let's look at what the states have done. Let's look at how electors have behaved. Let's look at how Congress has counted the votes that have come in, both from, you know, defecting electors and from states that have removed and

replaced defecting electors. And maybe defecting electors is like the value neutral way to describe them. I'm not sure. Maybe we'll get there. But he really did seem to kind of weave together all these modes of argument. And because like, you know, everyone, even folks who I think, you know, believe there is not the one true method, do care about history. But as you said, it is one of many considerations. And so, you know, I thought he did a terrific job. And he did seem to have, you know, a very significant number, more than five votes on his side, I thought, from this argument. And there was a second argument out of Colorado, although that one has been a little bit downgraded in importance, because as we learned, you know, a month or so ago, Justice Sotomayor is recused in, probably. So the two cases are probably equally significant. But I should say that Phil Weiser, the Attorney General of Colorado, I thought did a very, very fine job as well in the argument. Yes, I agree. There was, however, one justice

who was pretty concerned about constitutional text. And it was maybe not the justice who goes around screaming about how they're the only one that is concerned about constitutional text and is fetid as such. That justice was? Drumroll. It's actually, you know, with Leah's tease, you should be able to tell it was Justice Kagan. And Justice Kagan, you know, does very much care about text and hold herself out as someone who cares about text. But I think that she puts her money where her mouth is. Like she kind of really wanted to know, you know, what is the best textual argument?

She's asking Larry Lessig again, representing the electors. What's the best textual argument that they have a right to vote independently? And, you know, he struggled a little bit. He said, you know, it's the word elector. Yeah, elector. Right. And the same way that, you know, we voters who vote for members of Congress and in the original Constitution, not directly for senators, but for members of Congress. Right. We can't be punished for voting a certain way. And in the same way, electors who are choosing the president can't be punished for voting a certain way. And in the same way, electors who are choosing the president can't be punished for voting a certain way. So that, you know, the word discretion, he had to concede, you know, his argument was very much about discretion. And that word is not in the

Constitution. And so Kagan, I think, wanted to, you know, press him a little bit on that. And then he says, you know, he makes arguments about context and structure. And he said, and then Kagan, I think, extremely sharply, as always, responds, says, OK, so if it's an argument about context and structure, if we broaden the context just a tiny bit out, we see that within a couple of years, the practice was much more consistent with the practice that the states are describing here, which is that states did understand that they could bind their electors and that electors agreed to be bound and understood themselves as following the popular will as opposed to doing

something independent. And so I thought that was a very nice exchange. But you're right, like telling that she's really the only one who's pressing on constitutional text. Right. I think another interesting and at times entertaining thread in the argument was questions about intervening developments and also what kinds of electors states could remove, because that was in some ways the way that the justices tested the plaintiff's method in these cases, asking them, well, under your theory, could a state remove an elector that, you know, did some of these crazy things? So one of the common themes in the argument is, well, states can ask electors to take pledges. Is that a problem, that they're asking them to pledge that they're going to vote for someone who wins a popular vote? The Supreme Court said,

that's fine. How about if someone sells their vote for money or announces their willingness to do that? Can you remove that person? So all of these questions, I think, were emblematic of this is how the justices think through these issues, these line drawing issues, what are permissible, what's not permissible, they're about consequences. And I enjoyed them. And I think that they were really useful to the justices in testing the plaintiff's position here. So one particularly entertaining example of this was a hypothetical from Justice Thomas. could not, that after someone dies, their system is so rigid that you can't make changes because of the death of the candidate. But I think that on your side, as the Chief Justice alluded to, you have a similar problem because the elector who had promised to vote for the winning candidate could suddenly say, you know, I'm going to vote for Frodo Baggins. And that's I really like Frodo Baggins.

And you're saying under your system, you can't do anything about that. And I will say, I'm not sure we have we played any other Justice Thomas excerpts on the podcast. I'm not sure we have. So we didn't really have an opportunity to do that before telephonic arguments since he didn't talk. And, you know, and for folks who haven't, you know, had the occasion to be in court when he, you know, the one time he does talk is when they're doing these handouts and they're announcing their opinions. And he does, like everybody else, summarize from the bench the opinions that he is the author of. But if you, you know, if you don't know, he has this really beautiful resonant voice, and he asks really good questions. We have said that, but I'm not sure we've played

any excerpts. So the idea, I think even Justice Thomas seemed to think, although obviously if there's anyone who's going to be swayed on the irrelevance of the intervening 230 years of practice, it would be Justice Thomas. But, you know, the question seemed to suggest that even he had some concerns about a rule that would say you can't remove an elector who wants to vote for Frodo Baggins. Right. I enjoyed that that hypothetical, he chose the Hobbit characters, you know, I don't know. I sometimes I imagine him saying things like, one interpretive method to rule them all. And so, you know, it's kind of like a Lord of the Rings theme. But anyways, so, you know, I still think that the opinion that the

court ultimately produces in this case is going to be interesting, to the extent it grapples with these kind of competing considerations of historical practice consequences and originalism. But, you know, sometimes when the justices make a decision that a case is going one way, they will neglect to grapple with competing evidence or sometimes read that competing evidence to actually support their position. So, you know, we'll see what happens. I mean, if the case comes out the way we expect it to, no surprise. But if they take the occasion to say something like where the historical record, you know, just doesn't conclusively support one reading of, you know, a provision or a group of provisions of the Constitution, we have to look elsewhere to decide what the Constitution means. That would be significant, actually.

I think that'd be a significant concession because I think you're right. A lot of the time, even where it is clearly the case that there is competing evidence, because, you know, different justices read the same historical record very differently, there often is this sort of, I think, faux projected confidence about the singularity of meaning that a particular set of historical records contains. And it would be refreshing and helpful if they would say, sometimes we have to look elsewhere. And that, I think, would be a really positive development in a constitutional case. And pointing to history and a course of practice, both in states and, again, between the states and Congress, is something they have done in other cases. But

to sort of say that that's maybe what's most important and relevant here, and then also that we can think about chaos and consequences, it'll depend on how they write it, but I think that actually could be an important case just in terms of what it tells us about the justices' kind of methodological commitments. Yes. And then one additional interesting point that might come out in the opinion is occasionally an argument, a 10th Amendment argument was floating in the background. And the 10th Amendment argument is something along the lines of, well, states possess all powers that aren't explicitly delegated to the federal government. Don't states have some reserved set of powers or authority over electors here? interesting is because it involves the relevance of a 5-4 decision, United States term limits versus Thornton, that hell, the states didn't have the authority to impose term limits or

requirements on federal officeholders because there weren't federal offices or federal officeholders that predated the Constitution. And so therefore, the states didn't have any reserved authority over them. And Thornton, as I mentioned, was 5-4. Justice Kennedy was in the majority. And occasionally in argument, it sounded like Justice Kavanaugh was perhaps sympathetic to Thornton dissenters. And then Justice Kagan actually kind of came back to reinvigorate, you know, why Thornton was correctly decided. And it's possible that the court will say something or some of the justices will write separately to suggest their own views about the state's reserved authority over federal offices or federal office holders or the scope of the

Tenth Amendment issue here. Yeah, because there's an interesting debate in Thornton about whether kind of the powers reserved to the state is sort of this kind of temporal statement about pre-existing authority or whether it simply means things, you know, the residual authority, whatever Congress doesn't have, the states get, whether they had it previously or not. And, you know, there's a very lively and interesting debate between the Stevens majority and the Thomas dissent in Thornton. And I think the Thomas dissent is actually really persuasive. And so, yes, you could imagine some, you know, reinvigorated version. They have no occasion to really reconsider Thornton here, but that you could see who has some sympathy for that dissent instead of, you know, rather than

the Stevens majority opinion, which, as you said, Justice Kennedy was the fifth vote in. Okay, so we'll stay tuned for that one. Let's talk about a little court culture before we go. Yes, let's do it. So some popular culture or things related to the Supreme Court that have appeared on your television. In aka Jane Roe, a new documentary that was filmed before Norma McCorvey's death in 2017, and Norma McCorvey was Jane Roe in Roe versus Wade. That documentary is set to air and it reveals that Norma McCorvey says she was paid to switch sides and become an anti-abortion activist in the 1990s by the anti-abortion movement to say things like, you know, I regret my abortion and I think that abortion should be illegal. I think it's a bombshell just to know that it's out there. We'll obviously see the documentary when it airs. She calls this, I think, you know, the reviews of the film have suggested she calls this a deathbed confession

and that she, you know, is coming clean and like you said, has receipts, right? This is, she's clearly been paid, I think somewhere close to half a million dollars, right, by Operation Rescue and other anti-abortion groups to basically become a spokesperson. And, you know, like the views or the change in views of a single individual shouldn't matter so much in debates about abortion in the Constitution. And yet the pro-life or anti-abortion world has for many, many years held her out as this extremely significant morality tale about abortion and regret. And so for that reason, it seems really significant that not only did she have a change of, this is not as though she had a change of heart at the end of her life yet again,

it's that she suggests that, you know, she never actually came to oppose abortion and that it was a purely transactional decision on her part to ally herself with anti-abortion forces for many years. And she was quite prominent for series Mrs. America, which we, I think, previewed a couple of months ago when we first saw a preview for it. And so this is like a limited installment miniseries, I guess, about Phyllis Schlafly and her campaign to stop ratification of the Equal Rights Amendment in the 1970s. So we've talked about the ERA a decent amount on the show. History is totally fascinating. And we have watched the first three episodes, and it's pretty fascinating. So Cate Blanchett as Phyllis Schlafly is totally superb. She is so incredible. I would watch Cate Blanchett as honestly anyone or anything. She's phenomenal. I think there's a little teeny part of me that was like, yeah, like a St. Louis housewife. I just feel so, no, nothing is out of her repertoire. In fact, she so fully embodies this character. She's incredible. Uzo Aduba is, I think, great as Shirley Chisholm.

Rose Byrne plays Gloria Steinem. I was a little, the first episode or two, I was not loving that performance. By the third episode, it's kind of been growing on me. So on the whole, I think it's excellent and I'm really enjoying it. How far have you gotten? So I have not watched basically any of it. We have been too enamored with The Last Dance and deciding whether Jerry Reinstor for Jerry Krause is the new Carole Baskin and working our way through some other television shows as well. I think my husband is in the same closet that I'm in right now. I think he's going to do an entire podcast about The Last Dance tomorrow, and he's really excited about it.

Oh, that's awesome. That's awesome. So he was going to take the week off, and he's like, no, I have so many thoughts, and I have a podcast. And so I'm going to share those thoughts on the podcast. That's how podcasts work. They really are. There you go. Okay, so then the last thing that we wanted to flag

was this incredible study that you somehow generated in like five days after the close of the Supreme Court's telephonic arguments last week. You know, we've talked on the podcast, like about what felt like kind of disparities between the justices in their speaking time and their interruption rates. And then, you know, we were sort of like, huh, I wonder what the real numbers are. And at some point, I guess you walked away and just sat down and crunched all the numbers. Well, after we talked about that, I was like, you know, I should just crunch the numbers. And I should note, I was definitely inspired to do this by Northwestern's Tanya Jacoby, who has done a series of empirical studies about Supreme Court arguments. And her piece with Dylan Schwerer's Justice Interrupted was the piece that crunched a ton of numbers about Supreme Court arguments over a decade and found that, surprise, surprise, women more interrupted than men.

Conservative justices also more likely to interrupt than their liberal colleagues. And I thought, okay, well, I am going to try to track the amount of time each justice was allowed to speak and allowed to have advocates answer their questions across arguments, and then also track when the chief justice ended a questioning period versus a questioning justice ending it. When the chief justice ended a questioning period versus a questioning justice ending it. When the chief justice ended a questioning period, was the chief justice interrupting a justice or a counsel or waiting for them to finish speaking and so on. So I just did that with the arguments. Wow. It was an incredible piece of work that you pushed out in like five days. So do you want to

walk through some of the kind of bottom line findings, then we can talk about them a bit? Yeah. So I think I came away with it thinking like the Chief Justice tried to do a fair and even handed job. And in a lot of ways, he succeeded. So for example, I calculated the average questioning time each justice received during a questioning period. And the averages, I think, were fairly balanced. Justice Gorsuch and Justice Sotomayor spoke the most per questioning period they used. Justice Alito, one second shorter than them. And, you know, so that reflects a kind of balance, I think. And, you know, if you look at the different times, it also appears that the chief justice was trying to keep the different justices roughly talking the similar or same amount of times for different questioning periods. But the reality is it kind of fell short and fell apart in particular arguments and at particular times.

I think the thing that stuck out to me the most is, you know, the chief gave Justice Alito the longest leash. And I think Justice Alito abused that in some respects. There was one point where Justice Alito kept talking after the chief justice called on Justice Sotomayor, and he was the only justice to do that. Everyone else shut up immediately as soon as the chief justice called, you know, the next justice or the other name. He also a couple of times I noticed, he, I think maybe was the only one to explicitly seek permission to continue with lines of inquiry, and the chief gave it to him. So Justice Alito a couple of times said, if I could just finish this, or if I could ask one more question, and then kind of pressed on. And I think the chief,

as a matter of courtesy, probably didn't say, no, no, you can't. But I don't know that anybody else even asked the question. And so that was a sort of interesting disparity, too. Yeah, well, so Justice Sotomayor asked once if I could say one more thing, she got 20 seconds, whereas every time Justice Alito asked for it, he got at least a minute. And on one occasion, you know, three minutes, even one if it was in four minutes into his questioning. So, you know, some of the bottom line things that I found are Justice Alito had by far the longest questioning period. I think everyone noticed this when it was happening in the contraception case. And he also had two of the three longest uninterrupted questioning periods. And all three of the longest questioning periods were male conservative justices.

Justice Breyer was noticeably less loquacious, I think, in this setting than he is in others. The three shortest questioning periods that the chief justice ended were all women. They were Justice Ginsburg and Justice Kagan. The only justices that the chief justice interrupted when he ended an argument session, so he ended the questioning periods 158 times. He only interrupted a justice 11 times, but all 11 of the interruptions were of Democratic appointees and nine of the interruptions were of women justices. You know, even though Justice Sotomayor was interrupted the most, she had none of the nine longest individual questioning periods and only one of the 14 longest. Justice Ginsburg was also interrupted a lot.

And she spoke very little relative to the other justices as far as average questioning time in arguments. So, you know, again, this is a new format that the justices were learning. No one really knew how to do this. The chief justice was trying to listen to arguments and figure out how he's going to decide these cases and hearing what people are saying. At the same time, he's trying to ask questions and moderate arguments. I just think it was imperfect. And those imperfections kind of showed in, you know, some like fairly ugly ways and bias against women. And, you know, you're being more likely to cut off people with whom you disagree.

One question that I had when I first read it was, you know, is it the case that the, you know, the three or the liberal justices, the ones who are being interrupted the most, and in particular Justice Sotomayor, is not timing herself to stop at sort of whatever informal guideline internally has been shared among the justices. But of course, that doesn't quite work because she's not because, you know, many of the other longer, at least not in every instance, because many of the longer periods, right, particularly Justice Alito's, don't result in these cutoffs. But it did make me wonder, the 200-second average, which we should say, right, includes both the questions and the

advocates' answers. So like if you wanted to do another iteration, you know, like in the next 72 hours or whatever, you could deseggregate the advocates and the justices. And, you know, I suppose it's possible that Jus Alito is asking the same number of questions, but just getting really long answers. I don't think that's the case. But there could be, some additional variables that could be worth looking at. But 200 seconds, so they're really, it's about three minutes that they're getting, right. And so it made me think, you know, maybe it is the case that the justices were told you get three minutes. And, you know, if people take less and there's gonna be a couple minutes left or if the arguments are so interesting or there's more to air, I'm going to add another five or 10 minutes on. But like even though we didn't know that and the advocates didn't know that, that's basically what the chief was trying to do. And that seems like it seems right to give everybody a basic benchmark going in and also not to tell the advocates because they don't, you know, they know they can filibuster for however long is remaining on a three minute clock.

And yet, but it made me think since we talked in our last episode a little bit about innovations they should consider if they're going to do this again in the fall, which seems to me at this point, like, at least reasonably likely, like, that the justice should have countdown clocks in front of them, right? So they know if they've got, you know, 180 seconds, like it's counting down from 180. And so they can cut off advocates. And maybe they did have that. And just different people will kind of manage their time differently. But I feel like that might help. And then there's a question which, you know, you ended with here, the sort of point you ended with here, and I think the paper does too, which is, is the chief the best situated to play traffic cop in these kinds of arguments? And the answer may just be no. Like, it's too much for one person to do, and it's not really possible

for one person to administer all of this fairly. Like, that's the point of unconscious bias. It creeps in. And if there isn't, like, some neutral orbiter, like it's not going to fall in a completely unbiased fashion. And so is there a world in which, you know, Jeff Menear, who's the counselor to the chief justice or Scott Harris, who's the clerk of the court, obviously, you know, or even Pam Tolkien, the marshal of the court, who's the person whose voice you hear, right, opening arguments. Tolkien, no. But the other two, I don't know that it would be crazy for one of them to play traffic cop if it's going to be done audibly. Or maybe it's just the kind of thing where they need to do kind of this behind the scenes, cutting each other off. Of course, the chief sort of says

on Zoom, stop talking. And his colleague doesn't stop talking. Like someone has to speak up, I think. Right. Maybe you bring back Justice Souter or Justice Kennedy and have them telling their former colleagues to shut up. There's no way either of them would do it. But I'm just thinking about possibilities. It's a great suggestion. Oh, God, I would love to hear Justice Souter's accent once more. I miss it. I know. It would be amazing. Or it's possible the court just abandons this format and goes back to a free-for-all, right? Obviously, that might raise problems of its own, but it would remove the chief from having to do all of these things at the same time. It's worth trying for a week or two and just sort of seeing how it goes. I think that everyone came away from this session thinking, you know, the format has drawbacks,

but lots of advantages. And I think that's probably what they would, what everybody would feel about some kind of free-for-all format too. But it seems worth, since they were open enough to experimentation to try this these last couple of weeks, it seems like, you know,

they might consider additional kind of format innovations. Did you just send me some breaking news since we started recording this? Yes. Yep. I just put in the outline that while we were recording, the Supreme Court has temporarily blocked the release of grand jury materials in the Mueller report. That is the emergency relief that the Department of Justice sought from the court. But this is just temporary in the sense that it is until the Department of Justice files a petition seeking review by June 1st. And in the event the court doesn't grant that petition, the stay will dissolve. But I think it's extremely likely, given that in DOJ's position that, you know, Mueller report completely exonerates me and is the best report, you know, for me ever written.

And yet there would be extraordinary harm to the country if it ever saw the light of day. And yet that is a position and posture we find ourselves in. And the court, at least for the moment, siding with DOJ and keeping these previously redacted portions of the report from seeing the light of day. Well, so maybe they can consider some of these formal innovations when they hear oral argument in October. Although I guess it'd probably be more like December. Yeah, unless they did it on like an emergency or expedited basis. I can't see how they would. I don't really see what the justification would be. No, I don't think they would. I don't think they would. All right. Well, the fall docket was already looking pretty interesting. And so I think it's

only going to probably get more interesting. We're all just, I think, going to have to be in the posture of hoping there's not any really high stakes election dispute that ends up before this fall, right? That's like the main thing I'm losing sleep over. That's for another episode. Right. All right. So I think let's wrap there. Yeah. Thanks so much for listening, as always. If you are interested in supporting the show and supporting Melody, who makes the show happen, you can sign up to support the show on our Glow campaign at glow.fm slash strict scrutiny or on our website. You can also get some sweet schwag that includes such clever phrases as story decisis is for suckers and angry feminist podcaster.

If that is your jam. Thank you to our producer, Melody Rowell. Thank you to Eddie Cooper who makes our music. We'll catch you next time. Thanks everybody.