Strict Scrutiny - Where My Girls At?

Episode Date: November 4, 2019

On this episode, Kate and Melissa talk breaking SCOTUS news; preview three cases from the upcoming November sitting -- DACA, Hernandez v. Mesa, and Comcast; and go deep on amicus invitations and (lack of) diversity in the Supreme Court bar. 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. Okay, everyone, welcome to Strict Scrutiny, a podcast so fierce it's fatal in fact. We're two of your hosts. I'm Kate Shaw. And I'm Melissa Murray.

And after back-to-back shows debriefing the October sitting of the Supreme Court, Jamie and Leah are taking a well-deserved break, and we're taking the baton. How are you feeling, Melissa? I am so over Halloween. I'm so glad Halloween is done. It just happened, but I literally felt like it was a two-week roll-up to Halloween, and it left me spent. And I just, yeah, I don't want to think about it for another six months. I felt a little kind of like postpartum this morning. I was like sort of felt kind of sad and aimless.

It was like this thing we had been building towards for those, I mean for weeks in my household too, was gone. Okay. I don't even want to get into postpartum. But when did Halloween become such a huge thing? Because I remember when I was growing up, it was you went and bought a costume. Like maybe you went to like Walmart or Target and you bought a plastic costume and a mask that you're going to feel really hot in. I grew up in Florida, so you're definitely going to feel really hot in this plastic costume.

And then that was the night. Like, now there's, like, haunted houses. The school has a parade. There's, like, 50,000 things the weekend before. I mean, Halloween is a two-week event. Yeah, there's, like, this Halloween industrial complex that I think has basically cropped up since we were kids. And I had the same experience. It was, like, we didn't put that much thought into it.

Like, it was always freezing cold and often snowing because I grew up in Chicago. So the costumes were like not even visible, which was a bummer, but like kind of routine. And then we traded candies and then they like kind of disappeared. My parents took them, I think, and then they were gone. The costume game has ratcheted up so much. So this year I took my son to see this play called Afternoon of the Moles, this French experimental theater thing. Well, it was kind of cool, except I fell asleep during quite a lot of it because I was so tired. But he loved it.

And then he decided he wanted to be a mole for Halloween. And there are no mole costumes anywhere. So I was on Etsy, no mole costumes. Like, obviously, like, there was one mole costume on Amazon. It was $1,200. And I was like, absolutely not. Well, you didn't just stitch something together? I can't sew.

Like, so, no. I can do a lot of things, but I can't sew. So I made an announcement to my class. Does anyone know anyone who can sew? And one of my students put me in contact with someone. So you did – it was a homemade costume, but just commissioned, not made by you. Yeah, not made in my home, but definitely homemade. It was very cute.

So any SCOTUS Halloween content in your neighborhood? I saw a lot of Ruth Bader Ginsburg. Still, yeah. In previous years, I've seen more. I did not see many this year, I have to say. I don't – so the year that Justice Scalia passed away, I remember seeing a Scalia costume. But he was like sort of an interesting personality, and it was a Scalia and Ginsburg pairing, which I thought was sweet. Very cute. But yeah, she's the only, maybe she has the most distinctive look too of any justice. Yeah, there were a couple in

my neighborhood, not so many. I did see, there was this amazing three carved pumpkin setups right near my house that had three pumpkins carved in the shape of the faces of the three female justices. And they were incredible. I tweeted a picture. The person who carved them did tell me that all evening people had been like, oh, that's great, RBG. So to my heart, who's the third pumpkin? Come on, guys, like just process of deduction. But it is true that Justice Kagan, as we have spoken about, is not as recognizable or as much of an icon as the other two. Well, I mean, she kind of is in a little bit of suitor land

right now, but I imagine she's going to kind of come out of that. I think she's making a break for it. In any event, we have a great show planned for you today for this post-Halloween show. We've got some breaking news. We're going to preview some cases for the upcoming November sitting. And then we're going to do a deep dive into court culture and talk a little bit about some issues relating to equity and equality at the SCOTUS Bar. So it's going to be a great show. Let's start with some breaking news. We should say that there is a lot going on in the country right now. No. What's going on? So, well, where to start? We should maybe mention that yesterday the House of Representatives passed a series of resolutions

authorizing the formal impeachment inquiry that they had already been engaged in. And so I think that things are likely to pick up pretty quickly on that front. We'll see public hearings before too long. But we're going to focus today on breaking news that doesn't involve Congress and the president, or at least not centrally. So we had a few recent polls that we thought we should mention on public confidence in the Supreme Court. So there are actually three polls out this week showing to varying degrees that there's actually pretty significant public confidence in the Supreme Court. So first, an Annenberg poll found that 68 percent of the public trusts the Supreme Court to act in the best interest of the public. A Gallup poll found that around 54 percent of people approve of the job the court is doing.

And a Marquette poll found that of the three branches of government, 57 percent find the Supreme Court most trustworthy compared with 22% for Congress and 21% for the president. And you can obviously unpack a lot of that data. There is definitely sort of an ideological valence to some of the responses. Let me just mention Marquette for a minute. So 52% of very conservative respondents in the Marquette poll have high confidence in the Supreme Court compared to 31% of very liberal respondents. So you see there's a pretty significant ideological break. And there's also some shifts over time. So the Gallup poll showed a pretty significant shift in the relative levels of support just in a couple of years of the Trump administration.

So conservative support for the court nearly tripling since 2016. So I guess as a general matter and in terms of the kind of ideological breakdown we see there, what do you make of all this? What do you think, Melissa? And I think it's actually more interesting that so few people find the political branches to be trustworthy. So I mean, it's great that lots of people find the court to be trustworthy, or think the court is doing a good job. And I think that's especially important given the bruising confirmation battle we had last year. So it shows that public confidence has rebounded to some degree, to the extent it was hobbled. But I mean, I think, again, to have a thriving, functional democracy,

you might wonder about the incredible skew between the political branches, Congress and the executive and the court. That can't be healthy. No, I agree with that. And I think that this polling didn't do more kind of comparative confidence testing, but there are other polls that have asked about trust in institutions more broadly, both institutions of government, federal versus state or local, other kinds of institutions. And a lot of that polling shows incredibly low levels of trust in every institution across the board, with often the exception of the military and sometimes the police, which is unsettling in a system that is a democracy and not a military dictatorship, that it would only be those institutions that exceed 50 percent of public support. And so it certainly seems to me a good thing to have, even if not a directly democratically accountable branch, but a branch of government exceed the 50 percent

threshold. And, you know, I don't know that sort of approve of the job the Supreme Court is doing is the most constructive way to phrase the question. And so that gave me some people understand the job the Supreme Court is doing. Sure. Yes. I think that's right. And then also approval, I think, is something better asked about political actors, right? What I think matters is not approval sort of seems to suggest agreement and whether or not we agree with the results of particular cases, whether we believe it is acting in a legitimate fashion as an institution is a totally different question. Although I think that, you know, that the two are related. And so I do think that the form of the question matters so much in polling. And so I'm not sure that all these polls really kind of frame the questions in the best way possible.

Why are they asking us? I mean, we could do this podcast. We could write poll questions. We can make Halloween costumes. We could do it all. If there are folks who design these polls listening, call us. We're every women. All right.

Speaking of bolstering public confidence, despite a summer spent recovering from pancreatic cancer treatments, Justice Ginsburg seems to be back at it, and she is very quick to reassure us all that she is on the pink of health. So last week, Justice Ginsburg made a visit out west to the University of California, Berkeley, where she was the inaugural Herma Hill Kay lecturer, and she gave a public talk before faculty, staff, and students. And just so everyone knows, Herma Hill Kay passed away in 2017, and she was the first woman dean of Berkeley Law, and indeed, the first woman in the country to lead an elite law school. And she and RBG were terrific friends and colleagues, and they co-wrote the first casebook on sex discrimination law. So it was incredibly

meaningful that Justice Ginsburg took the time to go out to California to be the inaugural Herma Hill Kay lecturer and to celebrate her friend's legacy in this tremendous way. But while she was out there, she, of course, was asked about her health. It was the first question that she got. And she said that she was feeling very well, especially as compared to six months ago, and that she was still working out and that, in fact, she had continued her grueling physical regime throughout her treatment for pancreatic cancer, which made me feel a little lazy because it takes absolutely nothing to make me give up on working out in the morning. But she's always at it.

She is. I will say that she has seemed really vigorous and strong from the bench. So when I was at the Title VII arguments and the arguments I've listened to since, like, her voice is strong, it's clear, she's not pausing much. I mean, she sounds good. Well, she was also in fine form on a Wednesday night event at Georgetown University Law Center, where she spoke alongside Hillary and Bill Clinton about the judicial nomination process. And they talked about the, quote unquote, golden days of judicial nominations. I don't know when those were, but definitely less fractious than the last couple of judicial nominations have been. But what I thought was really interesting was that President Clinton was reminiscing about his conversation with Justice Ginsburg in advance of nominating her.

And he said that they had a quite frank discussion about abortion. And he was impressed that she approached the topic as she would approach any kind of constitutional question. And he didn't push her about her views particularly, because he can't ask her for her views and what she would do in a particular case. But he was very impressed that she was just willing to talk about it and didn't seem afraid to tackle the topic, which I thought was interesting. You know, when you say. When you say he didn't ask her particular questions because there's a norm in not asking those kinds of questions, it reminded me of something that I hadn't thought about in a little while,

which was I remember both when President Trump was going through the process of interviewing nominees or prospective nominees to fill first the Scalia and then the Kennedy seat. So he has these one-on-one interviews with the top three or four contenders. And, you know, there actually usually is in the White House a true one-on-one conversation between the president and a prospective Supreme Court justice, like staff leaves. And, you know, I worked in the Obama White House. I think, you know, President Obama, former constitutional law professor, had some pretty substantive conversations that I am sure were exceedingly careful about those lines that you just referenced.

But we all know that President Trump, you know, runs roughshod over all these sorts of norms. It's a more unorthodox presidency. Sure. That is so diplomatic, Melissa. I've been practicing so hard. And so – and I really thought about it at the time like what did they talk about? Why would we think that where norms are sort of smashed in every other sphere, the norms about sort of proper subjects of conversation with prospective Supreme Court nominees would have been heated? I just don't know. I can't even contemplate what was discussed.

The one thing I remember thinking was when the Gorsuch nomination was about to be announced. Do you remember it was kind of like a bachelor-esque kind of thing? Like, Neil Gorsuch, you get the final rose. Do you remember that? What could someone like Neil Gorsuch have been thinking? I mean, Neil Gorsuch is a serious person. He was a serious judge on the Tenth Circuit. And then all of a sudden you're in this kind of weird reality TV show

and obviously you want this job, but you've got to like – I'll take that final rose. Can you imagine? Yeah, no, but I mean so what are your options, right? You're told that this is how the announcement is going to go down and so I guess you just acquiesce. But I think that that exactly illustrates the point. Like if the president starts raising improper questions about abortion or executive power, like if every incentive is just to, you know, sort of not make any waves and just sort of – I presume that either Justice Kavanaugh or Justice Gorsuch would have deflected those kinds of inquiries.

I think that they at least are very steeped in the norms about kind of proper engagement between the president and a prospective Supreme Court nominee. But I don't know. They would have walked out. I doubt it. So the other question is, do you think John Kelly left them alone? Right. Because there's that too. Yeah.

Right. I mean, he was kind of, you know, the minder in chief for a while. I could see someone very easily deciding, like, President Obama can handle this. I'm out. But I could imagine someone saying, you know what? I'm just going to stay. Well, you remember like with a sort of very famous Jim Comey conversation, President Trump asks Jeff Sessions to leave the room.

And so what do you do if he asks? Yeah. I don't know. I don't know. Upside down. The world turned upside down. That's right. In any event, some new information coming out about the high-stakes world of abortion challenges.

On Tuesday, October 29th, U.S. District Judge Myron Thompson, who is a judge in the Middle District of Alabama, issued a ruling in the legal challenge to the Human Life Protection Act, which is that Alabama law that was passed last spring that would have banned abortion almost entirely in the state of Alabama. It is set to go or was set to go into effect on November 15th, but the real issue here is that it threatens serious felony charges to abortion providers up to 99 years in prison for performing an abortion or 10 years in prison for attempting to perform an abortion. And you can go and read Judge Thompson's order. It's only about 17 pages. It's very spare. It's a very clear rehearsal of all of the extant abortion precedents.

And he talks about how they are all violated by a law that would do this. But the real thing I thought was interesting here were that there are three pages that Judge Thompson devotes to the question of whether abortion providers have standing to assert constitutional claims on behalf of their patients. And this, dear listener, is important because you'll remember this is a key question in that June Services v. Gee case, the Louisiana admitting privileges case that the court just took cert on and we'll hear later this term. So in his opinion, Judge Thompson talks about this issue, and he is a smart man. He is totally teeing this up because he knows not only will it be important in this 11th Circuit appeal of this case, it is going to be important going forward as the court thinks about that issue in June's services.

So did you read this opinion? Yeah, yeah, I took a look at it. I mean, you're right, it's really short. It just sort of says, look, sometimes these cases require a complex balance. This is not one of those cases. Like this case is flatly unconstitutional, and we don't really even need to work very hard to explain why, given existing Supreme Court precedent. And I did think in the short discussion of third party standing, the opinion makes clear that it's not only that just as a matter of kind of principle of sort of, you know, logic,

if these cases are to be adjudicated at all, doctors and parties other than pregnant women, given the ordinary kind of timeline of litigation, must be permitted to raise claims like this. But it also points to Supreme Court cases that seem to make quite clear that that standing has been endorsed as a matter of Supreme Court doctrine. So stare decisis is implicated even at the standing question, not just as to the merits of this case. And I thought that was especially important because you'll remember it was the court who made this an issue. Yeah, no. I mean – and Leah and Jamie talked about it a little bit in the last episode. It was – I think people were startled and alarmed that the court reached out to inject into this case this well-settled principle of how a case like this might be litigated.

And so, yeah, no, that's alarming. And I think that these three pages, you know, make quite clear that the law is settled. But that doesn't mean the court will not and is at least not thinking about unsettling it. Stare decisis is for suckers. I'm going to say this at least once every episode. At least once every episode. Okay. So the next thing we wanted to flag in the breaking news vein is like kind of old news but also kind of new news. Old news is always new news.

That's right. Well, this is sort of a new kind of take on some old news. So this is actually also kind of a short follow-up to a conversation that you and I had a few weeks ago when we did a deep dive on some books about the Supreme Court. And as to one of them, Becoming Justice Blackmun, we noted that Linda Greenhouse had drawn heavily on Justice Blackmun's papers in writing that book. And Justice Blackmun kept very extensive notes, right? There's a real range in terms of what the justices both kept in terms of their notes and actually what they did with them. And there isn't actually uniform practice as there now is,

say, under the statute that's the Presidential Records Act. Like presidents once just did whatever they wanted with their papers. That's no longer the case. These are records of the United States. But as to justices, they sort of decide. But in the modern era, most of them have given their records over to the Library of Congress. And so Justice Blackmun's papers are there. I've had a couple of research projects that have required me to go and sort of dive into them. And they are totally fascinating, but mostly not online. So there's actually a political scientist who is in the process of uploading a lot of these papers. And so Jess Braven at the Wall Street Journal did a short write up, in particular, this like deliciously catty set of remarks that Justice Blackmun or notes that Justice Blackmun made about some of the advocates who appeared before him, some of whom are now well known. So for example, in Justice Ginsburg's first argument before the court in Frontiero, his notes read, very precise, period, female, period, reads, period. And he grades these advocates. So he uses this weird rating system, but he ends up giving her like a B or a B minus

on that and many of her other performances. As to Antonin Scalia's only argument before the Supreme Court, the notes read, plump, period, dark, period. Give him a grade of B. So this was harsh. Blackmun was harsh. He's also harsh as to not the appearances of, but the performances of both John Roberts and Sam Alito when they argued before him. He's kind of like the Regina George of the court. It is kind of a Mean Girls moment, plump, dark, female. Oh my God, I just looked at you like, wait, oh, Regina George is the character from Mean Girls. I have seen Mean Girls. Okay, good. That's good. Okay, so it's a cultural reference I did catch. I just didn't remember her name. She's the head Mean Girl? Yeah, she's the Queen Bee. He's kind of like, this is a little bitchy. That's good. Yeah,

no, it's actually quite bitchy. The article is behind a Wall Street Journal paywall. But if you can get behind it, it's very much worth a read. So this is the Jess Braven article. The Jess Braven article, yeah, that summarizes some of these newly publicly available papers. I think this is so interesting because I think Black men get what now seems like an undeserved reputation as kind of, you know, maybe a bleeding heart liberal. Remember there was Deshaney, poor Joshua, and then his work on abortion and how he later comes around to sort of thinking about women's equality and abortion. But then he's just like, this stuff is, he's really bitchy in some of this stuff. Pump, dark.

Yeah. He also makes some, he has like some of this very alarmed note that is also in the article about what he thinks are the logical consequences of some of Ginsburg's arguments, which are just that sex differentiation is unconstitutional. And he's like, you know, some wow exclamation mark, like he's really scandalized by this suggestion. That's like, you know, the author of Roe, which of course, as we all know, is not like an equality grounded argument. But he comes around. But again, he comes around. So I mean, this is also people can change over time. And yeah, I also love that he was not afraid to shade former justices. So there

was that point about Arthur Goldberg, who was a former justice, of course, who came back to the court in October 1972 to argue Curtis Flood's challenge to Major League Baseball's practice of trading players without their consent. And he gave Goldberg, a former justice, a B and said, unpleasant voice. Maybe. Savage. Amazing. Savage. Okay.

All right. That's all the breaking news we have today. But don't worry, we'll have more when we come back for the next show. But for now, we're going to move forward to the November sitting. And again, the 2019 term got off to a really rollicking start with a set of high profile Title VII cases. The November sitting is also set to be equally explosive with some very controversial issues before the court. So Kate, why don't you dive in? And like with a caveat for the listener, we are only going to preview three sets of cases in this episode.

There will be another episode in the future recapping the November sitting, so we'll build in some more cases there. But the three cases for today are really interesting, and I think the most controversial one is the set of DACA cases. So do you want to start us off with those cases? Sure. That sounds great. So on November 12th, the court is going to hear argument in three consolidated cases about the so-called DACA program. So in 2012, the Obama administration announced the creation of this program, Deferred Action for Childhood Arrivals, which would basically give a temporary relief from deportation, essentially a lawful status, to a category of individuals who were in this kind of legal limbo, right, had been brought to this country as children, had lived and many of them attended college and served in the military and worked

and gone to law school and medical school and had children and yet lacked legal status to give them essentially temporary legal status on a short-term and renewable basis pursuant to this DACA program. So you fill out some paperwork, you show that you satisfy these eligibility criteria, and you're permitted essentially to understand that you won't be targeted for deportation and then also to apply for work permits so that you can work legally. That's essentially the DACA program. And it was, I think, extremely successful. Something like 800,000 people have taken advantage of it.

Quite popular cross-ideologically. But in 2017, the Trump administration announced that it was ending the DACA program. And so again, DACA is launched by the Obama administration in 2012. There's an election in 2016 where immigration is a really big issue. And it's specifically the status of undocumented persons becomes a really big issue. And now we have this new administration, which has a very different logic to its understanding of immigration policy. And they're now trying to roll back DACA. That's right.

And, you know, something interesting is that despite running on this virulently anti-immigration platform, then-candidate Trump and President Trump in his early months in office seemed quite sympathetic to DACA recipients or so-called dreamers, how a lot of people refer to this category, and seemed to say, you know, people don't have to worry. We're not actually going to undo DACA. And so I think a lot of people were lulled into a sense of security. Wasn't there also that case where Jared and Ivanka were going to help the administration be good on LGBTQ issues? And then there we were in court a couple of weeks ago. And then there we were. And there we were.

Okay. Right. So no, and look, though, you know, obviously campaign rhetoric and, you know, isn't legally binding. And so the administration changed in a very dramatic way course on this issue. So basically here's what the administration did. So in 2017, the Secretary of Homeland Security, she's actually the acting secretary at the time, writes this very short decision memo basically saying, we have concluded that DACA is unlawful, and so we're rescinding it. And it cites another even shorter document, which is like a one-pager basically from A.G.

Sessions, right? So he's the attorney general at the time. At the time. Basically saying that DACA is unconstitutional and unauthorized by statute. And as support for that conclusion says the Fifth Circuit has basically struck down a related policy, has found it unconstitutional. And so we think this DACA policy is also unconstitutional and contrary to statute. And so we're not making a policy choice to end DACA. We have no real choice. Our hands are tied because the courts either found or are likely to find that DACA is unlawful. And so several challenges are brought and they're successful. And they're successful, you know, I think for good reason because this initial set of justifications that are offered to explain the decision to end DACA just don't really hold water.

So there's, first of all, a very blatant legal error in the AG's memo, which is that the Fifth Circuit found this related policy unconstitutional. The Fifth Circuit did strike that policy down but had nothing to do with the Constitution. It was a pure statutory case. It was an Administrative Procedure Act case, finding the administration hadn't gone through the right steps when it issued this related policy. The related policy is called DAPA. It was for parents of Americans, so not DACA, but a similar policy. So I'm getting a lot of just my spidey senses are tingling. A lot of this feels very familiar. should be probing the rationales offered by the administration for what they're doing and how

much weight we should give those rationales when they prove to be a little uneven is an issue that came up in the census case. Yeah. So I think actually this case is very similar to the census case, which we talked about a lot on our first episode and actually even has some things in common with Trump versus Hawaii, which is, you know, you have some government action. They're going to add a question to the census form, or they're going to make a major policy change with respect to immigration policy, or, you know, issue this proclamation or early executive order on entry into the United States. Maybe under some circumstances, conduct like that could be lawful. But the justifications that are offered for that conduct

either look very constitutionally suspect or just don't square. Pretextual. They seem maybe pretextual. And, you know, that's not, it's not quite the sort of, you know, there's no real claim by the plaintiffs that there's like enforcing, like the administration is ridiculously claiming to be enforcing the Voting Rights Act and ending DACA, right? It actually hasn't offered, I don't think, quite so facially ridiculous a justification as the Commerce Department did in the census litigation. So it said that there are legal problems with DACA, but it's done it in this kind of ham-handed way where it's misrepresented what the lower courts have done, not sufficiently explained the difference between or similarities between the earlier program, DAPA, and this program, DACA,

and I think really critically not grappled with the policy implications and the human impact of ending this DACA program. So I think what the plaintiffs, and there's, again, a few groups of plaintiffs, there are three cases here, are largely arguing is whether or not this is something that in the abstract the administration could have done, it simply didn't, in a legally sound way, justify the decision here. So this is a decision with massive human consequences. And when you're going to do that, government, you need to actually go through a process that is rigorous and offer an explanation that is sound and that can be scrutinized by the public. And here they haven't done that,

what they've done is simply said, in a sort of sketchy way, the courts are likely to find this program unconstitutional or unlawful, and so we're going to end it. And so that's essentially the need, you know, so essentially the statutory length, the standard being used here is the same one at issue in the census case, which is, is this, was this action arbitrary, capricious, or contrary to law, the same way that New York and the other challengers argued that the census litigation, that the question was, addition was arbitrary and capricious. What about the underlying substantive question of whether an administration can plausibly and lawfully make a change in policy and rescind a program that an earlier administration put in place?

I think everyone agrees that under some circumstances, of course, it is acceptable for administrations to take very different policy positions than their predecessors. If there's a Democratic president elected next year, surely executive action on immigration will look very different. But there are lots of steps that have to be taken. And an administration that sort of circumvents those processes is likely to and should be limited in court in their ability to affect policy changes. So yeah, I think that in the abstract, of course they can make policy changes. Is this just another case of like the census case, go back and lie better or go back and just tell us you don't want to be the Obama administration. You want to do something different. Maybe. I mean, so what's tricky here is that there – that later DHS Secretary Nielsen actually did write a second memo. And I think what the legal status

of that memo is, is very much an open question in this case, and I think is probably going to be central to the litigation or to the oral argument. But the plaintiffs say they haven't started a new, the new memo, which was issued quite a while later after some extensive litigation had unfolded, is not a new agency action. So really what you have to do is evaluate the original agency action from 2017. And in the reply brief, the federal government seems to be saying, you know, no, you can sort of use all of this justification in the Nielsen memo to understand the 2017 action, although they don't quite maintain that it's a new agency action. But yeah, Nielsen explains in maintain that it's a new agency action. But yeah, Nielsen explains in much more depth what, you know, what is driving the administration. It's still, I think, a fairly flimsy justification that doesn't grapple with some of the costs of

ending the policy. But I think that, yes, the go back and lie better, if what the Supreme Court could basically say, we need a better justification. And I think that unlike the census case, I think it is likely the administration would go back and redo DACA and explain it more sort of fully. I think that's right. But it may also be that they simply aren't willing to take the political hit for doing that because it's a very popular program and it's an incredibly sympathetic group, the recipients of DACA, and they just may be unwilling to do it, which is why they tried to sort of wrap this whole move in this veneer of like legal compulsion in the first place. Anyway, I think the arguments are going to be fascinating. I think I'm probably going to be at the court for them. So whenever we do the debrief, I'll give everybody a read. The amicus briefs in this case are really interesting. I mean, there are a lot of amici

who have signed on here, and they really emphasize the human dimension of this program. So they talk about the 700,000 current recipients, many of whom now have U.S. citizen children of their own, right? So I mean, this is truly a question of families being fractured if this policy is rescinded. And then there are also universities and workplaces, corporations, extended families who are like sort of talking about the real impact of this policy. So I mean, I think that's really interesting. We usually talk about the law and especially at the Supreme Court and sort of these abstract terms, but these amici are really hammering home that this is a law with a human face. Yeah. And, you know, in some ways those feel like policy arguments and

you don't often see policy arguments of quite this sort directed at the court, but there's actually very much a legal hook, right? Which is that the administration totally failed to consider all of this when it made its decision and that that is a legal argument, right? It is not a policy argument. It's also really striking if you just go to SCOTUSblog and look at the briefs in this case. Big cases like this often are more symmetrical in the number of briefs you see filed. The asymmetry is really stark in this case. It got ratioed. It really got ratioed. And even of the two briefs that, two of the like, you know, maybe eight or 10 briefs that purport to be on the side of the federal government, one is this Cato Institute brief that is like a brief in support of DACA as a matter of policy but in support of the administration as a matter of law.

So that's this kind of hybrid brief. And then there's an ad law brief in support of neither party. So even some of the briefs that purport to be on the government side are actually not. We're not totally there with you guys. No. Very few parties are. And like you said, there's just like this amazing range on the government side are actually not. We're not totally there with you guys. No, very few parties are. And like you said, there's just like this amazing range on the other side. This goes back to public confidence, right? I mean, this is such a popular program. There's such a sympathetic set of petitioners. I mean, I imagine that this is something that

Chief Justice Roberts understands and is thinking about. I mean, and again, kind of weighing the broader institutional concerns about the court's legitimacy. Yeah, I think so. And it does seem like it'll probably come down to him, that case, like so many of these cases. Well, it is the Roberts court. Yeah. Okay. So maybe I'll flag one more, which is actually being argued on the same day as the DACA cases, which is Hernandez versus Mesa. And we should probably say that Leah is not going to talk about either of these two cases because she is on briefs in both of them. So, okay, Hernandez versus Mesa. I'm going to quote from the Supreme Court regarding what the case is about because it is actually the second time this case has been there. So the court said the first time it issued this per curiam order in this case,

this case involves a tragic cross-border incident in which a United States Border Patrol agent standing on United States soil shot and killed a Mexican national standing on Mexican soil. So fired a gun across the border and killed a Mexican national. Now, what's not in the summary is that this is a kid, right? This is a 15-year-old boy. He and his friends were playing a game in which they run up to a border fence, touch it, run back down. And that that's what this boy, Sergio Hernandez, and his friends were doing when he was shot in the head and killed by a U.S. Border Patrol agent, right? It's just like horrifying facts. And I actually don't think those facts are there as a legal matter, not in dispute

at this stage of the proceedings. And I should also say that although this sounds like absolutely a horrifying anomaly, these cross-border shootings are actually not that uncommon, right? There have been a lot of them. So it's not just this case. I mean, we'll talk about the implications more broadly, but it's not just this case that will be affected. The question about whether the Constitution gives his family any remedy in court is much more complicated. So basically, his family filed a lawsuit. And early on, I said this case has been up to the Supreme Court once before. So early on, there were a few questions involved in the case, whether the Fourth and Fifth Amendments applied extraterritorially, right, to somebody who actually wasn't in the

physical United States, whether qualified immunity protected an officer under these circumstances, and whether a Bivens remedy was appropriate here. I'll explain what that is in a minute, but basically the case has now been limited just to the third of those questions. So Bivens is this 1971 case that gives individuals the right to sue federal officials for violating their constitutional rights, but subject to limitations and exceptions, particularly in recent years. So like I said, the case was before the court two years ago.

The court then decided this case called Ziegler versus Abbasi, which is basically a case that said that applying Bivens, these causes of action directly under the Constitution, in new spheres was a disfavored judicial activity. So the court doesn't overrule Bivens, but says some pretty limiting things about't overrule Bivens, but says some pretty limiting things about the application of Bivens. So the Supreme Court decided that other case and then remanded this case so that the Fifth Circuit could reconsider it in light of its intervening

Bivens decision. So the Fifth Circuit took a look at this case and said in light of Abassi, no, no Bivens remedy is available here. This whole kind of cross-border shooting sphere is new. We had never actually recognized a Bivens remedy in this context before. And so, sorry, family, no remedy available. And it actually turns out that most circuit courts since the Ziegler versus Abbasi case have also taken this extremely narrow view of Bivens. The plaintiffs here argue, look, there has to be some remedy if federal officials violate the Constitution.

Here, you can't even bring a tort claim in state court in Texas because the Texas tort remedy is preempted by a federal statute. And all of the kind of original purposes of Bivens support finding in these very narrow circumstances when no other remedy could conceivably exist allowing this family to just proceed with their litigation regardless of what the ultimate merits of the case whether they get any compensation from the government regardless of the remedy but the fact that they can claim a remedy and this is something that's being raised by the family in the briefs like this is simply a question of is there an avenue for a remedy when all other avenues have been foreclosed because

if there isn't you are basically allowing federal officials to have free reign to do this kind of thing. Right. And I mean, I think that the plaintiffs in this case do suggest that, you know, it is a it's the fact there have been a number of these kind of factual scenarios like this. But B, the question of accountability in rogue federal officials is really at the heart of this case. And, you know, in a way, it does feel to me like, and the briefs seem pitched in this direction, that the newest members of the court who harbor, and particularly this is true about Justice Gorsuch, who does seem to harbor this kind of deep-seated skepticism about government power, would be receptive to arguments that allowing government officials, you know, particularly ones who, you know, have this coercive power, are carrying weapons or can do all kinds of harm to individuals to exist totally free from any kind of possible accountability is something that the Constitution would be troubled by, right? That Gorsuch's Constitution would seem to care about accountability and particularly for rogue federal officials, right?

The briefs are very clear that this is not the mind run of officials who are going to be facing these kinds of evidence claims. But when we're talking about this kind of outlier behavior and no other legal remedy, this has to exist. Well, in a republic, if you can keep it, one of the central themes is that you cannot actually have republican government if too much power is consolidated in either the federal. The people have to have something. And so, I mean, this might be one place where I would imagine they would be playing to Justice Gorsuch. It's also worth mentioning, and we talked a little bit about this in our summer episode on reproductive rights and justice, like, you know, this is about a cross-border shooting, but you might also have a Bivens claim in a situation like, for example, a sexual assault

in a detention facility on the border that is used for immigration control. And, you know, there was just a really searing report in the media this week about the number of assaults and molestations that have been reported of the children who are now in federal custody at the border. So, I mean, this is something, too, where families might plausibly not have other avenues of relief, and Bivens relief might be the only way to hold alleged assaulters to account. And so, I mean, this goes beyond this particular issue. And of course, there's the broader issue of police violence. I mean, this is a situation, I think, if you are someone who has been attentive to the Black Lives Matters movement, this is a place

where that kind of question might also arise, an area where there is no federal remedy for excessive force if Bivens is foreclosed in this way. Yeah. And I mean, I can see them drawing some kind of a line and saying, this application here would be new because you have this sort of factual wrinkle, which is that there's a border that intercedes for the scenarios you're describing. Presumably that abuse happens on U.S. soil. But I think that, you know, whether Ziegler versus Abbasi really kind of meant to quietly overrule Bivens and say these remedies no longer exist or simply meant to kind of cabin and clarify but, you know, permit to persist these really important kind of vehicles, I think the court kind of has to address that question in this case. And so it's going to be a big day November 12th

at the court. Yeah, lots to talk about. Another case that's coming before the court that I don't actually think a lot of people have really given a lot of thought to, it's going to be argued on November 13th. But I actually think this might be a sleeper case for this term. And that case is Comcast Corporation versus National Association of African American Owned Media. And again, I don't think a lot of people think this is going to be a big deal. But I think if you peel back the onion on this case, boy, this is a case that's going to have really serious repercussions for anti-discrimination law, just general plaintiffs in anti-discrimination cases actually being able to get beyond the pleading stage and bring their cases to court. So let me tee up the narrow issue that the court has framed for review, and it's whether

a plaintiff can state a claim under Section 1981 of the Civil Rights Act of 1866 by alleging that racial discrimination was a motivating factor for the defendant's refusal to contract with the plaintiff or whether the plaintiff must in fact state that racial discrimination was the but-for cause for the defendant's refusal to contract. And just to give you a little background on the statute, Section 1981 is a provision of the Civil Rights Act of 1866, which was passed during Reconstruction for the purpose of eradicating discrimination against formerly enslaved persons. And Section 1981 specifically prohibits discrimination in contracting. So it has huge ramifications in business, in rental markets, leases,

anywhere where a contract might be used as a place where you might be able to use 1981 to deal with racial discrimination in the denial of a contract or the refusal to contract. And so this case involves an African-American-owned television network, ESN, which is owned by Byron Allen. Do you know who Byron Allen is? Not as well as you do. So Byron Allen is this television personality from the 1980s when I was a kid. He was on this show called Real People, which in retrospect was a precursor of every reality TV show we've ever had. So it was just going around California and the country, filming people doing sometimes

cool things, mostly stupid things. But it was basically a reality TV show. And at the time, Byron Allen was a student at the University of Southern California and I think also an athlete there, very attractive, very good looking. And he gets roped into real people, becomes a television personality. I mean, he's basically OJ without the serious football career, but then also without the serious criminal career afterwards that came later. So he actually parlays this television personality stint of his career into an entrepreneurial stint where he begins acquiring local television stations, creates a kind of television network that's owned by together, and they're going to get them on big cable networks like Comcast, AT&T, and the like. And so he's arguing here that when he approached Time Warner, DirecTV, and Comcast, they refused to contract with him. And in one of his briefs, he actually notes,

he's later investigating why they won't contract him with him, why they won't contract with other African-American-owned media stations, why they're only contracting with white-owned television networks. And I think someone tells him kind of sub rosa, the reason why they're doing this and why we're not contracting with you is because we don't want to create another Bob Johnson. And Bob Johnson, if you don't know, is the billionaire creator of BET, Black Entertainment Television, the sort of preeminent black billionaire in the country. Byron Allen believes that there are serious racial dimensions to Comcast's refusal to do business with him and other African-American-owned networks and instead favoring contracts with lesser-known white-owned media contracts. So he's filed this suit under Section 1981 alleging racial discrimination. But he's saying that the racial discrimination was a – race was a motivating factor in Comcast's decision. Comcast, in its rebuttal, has argued that in order to successfully plead your claim under Section 1981,

Byron Allen, it is not enough to show that race was a motivating factor. Instead, you have to show something much more precise, which is that race was the but for cause. If it weren't for race, we would have contracted with you. Like, that's a much higher bar to clear, a much narrower threshold for him. And so this is basically a question of what is going to be the standard to plead a claim. And it has huge ramifications for other Section 1981 plaintiffs, most of whom are not going to be very rich African-American entrepreneurs. We'll just be ordinary Joes trying to get a lease, trying to get a contract and something. And when they get to the point where they're on a motion 12b6 decision, where they're trying to figure out if they're going to stay and be able to plead their case or if they're just getting chucked out of court right away, they have to be able to prove

this higher standard, that race was the but for a cause for why this contract never happened or why they experienced this discrimination. So this went up to the Ninth Circuit. And the Ninth Circuit said that only motivating, race is a motivating factor was all that was needed, and that would have allowed Byron Allen to continue his quest to prosecute his case in the courts. If the court reverses the Ninth Circuit here and holds that Section 1981 requires but for causation and Byron Allen has failed to state a claim under Section 1981, this is going to make it a lot harder for suits alleging racial discrimination to survive a 12b motion to dismiss. It's also going to implicate, I think, other anti-discrimination

statutes, many of which are modeled on the Civil Rights Act of 1866, and the standards of causation that are required to plead a claim under those anti-discrimination statutes. So Title IX, for example, is another place where showing that gender was one of the factors, a motivating factor, would be narrowed to requiring plaintiffs to show that gender was the but-for cause of the discrimination suffered. So I think that's a really important case that's going to have huge repercussions, and it's really not getting a lot of attention at all. And I know that Byron Allen has certainly wanted to see it get more attention because I think the implications for him are huge,

but I think the implications for questions of racial justice are even broader, and that is worth mentioning. Byron Allen is being represented by Berkeley Law Dean Erwin Chemerinsky, who seems to have all kinds of time in addition to deaning. I don't know how he's doing it. When you were the dean of Berkeley Law School, how many Supreme Court arguments did you do, Melissa? Very easy. Absolutely none. Zero Supreme Court arguments did you do, Melissa? Very easy. Absolutely none. Zero Supreme Court arguments on my watch. But I was, of course, dealing with my own lawsuit at Berkeley Law Center.

So I was in court. Well, I don't know if you're actually in court. Not in court, but dealing with court adjacent. Court adjacent. It was court adjacent. By the way, I'm sure you could have handled a Supreme Court argument if one just fell in your lap while you were deaning. I think this is real. I mean, and it really does sort of speak to this idea of like a public

law school. One of the things that Irwin has mentioned is that he takes a Supreme Court case a year because it's really important as someone who has been at a public law school, he was at UC Irvine before, now he's at Berkeley, to be engaged with matters that are important for the public and the development of the law. And this is one of those. So he's representing Byron Allen. I secretly want to know if he knew Byron Allen when Byron Allen was a student at USC, because at that time, I think Irwin was also at USC teaching. So I'm putting all of this together. And if you can't tell by now, I was a huge Byron Allen fan in the 1980s. So I think this case is, I'm going to be watching this case so closely. You should go to the court and watch it.

Do you think he'll be there, Bayard Allen? Yes, I would think so. Yeah. I mean, look, I just remember, like, he was the first kind of celebrity that I took notice of, mostly because my mom was like, that man is very attractive. But I was like, I concur. I would say I had to Google him. I sort of had a vague recollection from the 80s, but I don't think I had quite the chance. Did you Google him?

Yeah. He's a good-looking dude. Yeah, he's handsome. Yeah, yeah. So go to D.C. Take that cello to D.C. and introduce yourself. I had other stuff to do, but I think I'll probably just listen to it in my office. But yes.

One additional dimension of this case that I think will be interesting is it's, you know, having just come off these Title VII cases in which, like, we're all textualists, right? Like, what we're doing is arguing about the meaning of the word sex. When you have this really old statute, right? Section 1981 is like you said, an 1866 statute. No one's really arguing about that question. And I think rightly so. I mean, it's also like, you know, the language, all persons shall enjoy the same right to contract as is enjoyed by white citizens, or it's something like that. I don't have it in front of me. Whether that like race as a cause or the but for cause, like neither of those two is encompassed within the text of Section 1981.

Like the text won't answer this question. And to me, it just sort of illustrates the limitations of kind of, you know, fetishizing text to answer all of this, right? Like it's not, no way does the text get us very far at all, and the briefs don't even really try to suggest that it does. I should also say more about that, because it, again, relates to the Title VII case, where you have these plaintiffs and these corporations or businesses that they're fighting with, and then the government steps in. The same thing has happened here, right?

So this is a case, Byron Allen versus Comcast. Byron Allen is being represented by Erwin Chemerinsky. Comcast is being represented by Miguel Estrada. So heavy hitters on both sides. And then the federal government has come in on the side of Comcast, which I think is so incredibly interesting. So the Trump administration has decided to step in here and also argue this case on behalf of Comcast. Morgan Ratner, who's an assistant to the Solicitor General, will argue for the government as an amicus here. But the government seems to want to narrow the scope of these anti-discrimination statutes. And, I mean, we don't necessarily have to go into the text of the 1866 Civil Rights Act, but we know that it was intended to allow newly freed persons access to the marketplace in the same way that their counterparts enjoyed.

And so, again, it is a question of economic justice. It's a question of racial justice. And the NAACP Legal Defense Fund and a number of civil rights groups have also filed briefs here. And they don't get to the substance of whether Byron Allen is right. They are solely focused on this question of whether the statute requires this higher pleading standard. So that's it, I think, for the previewing. Again, we'll talk about these cases and more when we're going to do some recaps. But let's talk, you know, court culture a little bit before we go.

Okay. Like before we wind up, let's let, I think we should talk a little bit about court culture. The last time Kate and I were here, we had like a bibliography for you of books that you could read about the court. But I actually think we should talk about a court practice that not a lot of people, including myself, are really attuned to. I mean, you have to be a really eagle-eyed court watcher to have caught this and to really understand what it means. And so this is about situations where the court issues invitations to handpicked litigators to argue before the court. And this became relevant just a little over a week ago because the justices agreed to hear a petition for cert, CELA law versus CFPB.

And CFPB, of course, is the Consumer Finance Protection Board. They decided to hear this case, which considers the president's authority Paul Clement to argue the case on behalf of the CFPB. So you'll remember that the CFPB is the brainchild of Elizabeth Warren, and it has been a target of Republicans since it was created. Interestingly, Paul Clement is no liberal lapdog. He is a former Scalia clerk, and more pertinently, he has argued consistently for business community interests at the Supreme Court. So his defense of the Consumer Bureau is one I think that is a little surprising, puts him at odds perhaps, at least in this case, with groups like the Chamber of Commerce and others that have questioned the CFPB's power and the power of its director. So with that wind up in mind, Kate, can you tell us a little bit about the case and how Paul Clement, of all people, got tapped to defend this agency?

Sure. So I think we'll talk more about the case when it, as you said, hasn't been scheduled yet, but when we get closer to the argument. But we should say that the fact that the court has agreed to take it is in itself a very big deal, right? So we have talked before about the fact that some of the justices and in particular its newest members seem badly to want to reduce the size and the scope and the power of administrative agencies. And this case could well be an opportunity to move that project forward. So the fact that it's happening at all, big news. The argument, which you sort of alluded to, but is basically that the structure of the CFPB, which, as you said, created in the wake of the 2008 financial crisis, violates the separation of powers, right? So the bureau has just one head who can only be removed by the president for cause, you know, for some reason, not just because the president decides one day to fire him, and that the other so-called independent agencies whose leadership also enjoys for cause removal protection are different because they have multi-member heads, right? This is the only independent agency with just one head. And that is what the challengers have from the beginning is the kind of constitutional infirmity at the heart of the agency. So there have been a couple of challenges brought. The argument that the board is unconstitutional was unsuccessful in the Ninth Circuit.

It was unsuccessful before the on-bank D.C. Circuit, although crucially it was – first it was successful before a panel of the D.C. Circuit in an opinion authored by Brett Kavanaugh. And because it's the Ninth Circuit case that's going up as opposed to the D.C. case that's going up, I actually don't think he's recused. So I kind of think we know what he thinks about this agency. And, you know, I think we know probably what a few others on the court will. But anyway, we'll come back to the merits. But the really interesting short-term development, which is what you alluded to, is that because the Trump administration has joined in the challenge to the constitutionality of this federal agency, right?

Now it's the federal government attacking the constitutionality of a federal agency. The court decided to appoint an amicus to defend the constitutionality of the structure of the CFPB. And the background here, as you said, it's a kind of obscure practice. But basically about once each term, the court invites the participation of an amicus curiae or a friend of the court. And that's usually because one party to a case either chooses not to advance a particular argument or declines to participate at all. Now, these are different from, remember, we were obviously talking about the amicus briefs that were filed in the DACA case. Amicus briefs are filed in almost every case the court hears on the merits these days. But those are unsolicited filings by individuals with some stake in a case

pending before the court. These are invitations that originate in the court, the issue to a particular party. They come paired with the right to participate in oral arguments. And they just share the name, right, amicus curiae. So and it's pretty frequently the case that it's the federal government's change in position or a decision not to defend a lower court judgment that results in the need to appoint an amicus. So a recent decision people – a recent example of this that people might be familiar with was the Defense of Marriage Act, DOMA. So the Obama administration stopped defending the constitutionality of DOMA. The House actually intervened to defend DOMA.

And the Supreme Court wanted someone to take the position that the House lacked the authority to defend DOMA. So what did it do? It appointed a law professor, right, Harvard's Vicki Jackson, who made that argument before the court. So they're actually substantive questions that these appointments raise. Is it weird for the court to generate a controversy when there actually isn't one? There's this core idea that the Supreme Court and the federal courts in general are restricted to resolving cases and controversies. They don just like opine on things. And if there isn't an adverse conflict, should the court be creating one?

But the court has sort of decided it's going to do this. If a case is, you know, otherwise appropriate for resolution, it's going to bring somebody into to advocate a position that's not otherwise represented. So what I think is so interesting, and I actually wrote a paper about this a couple of years ago, is this kind of quasi-sociological question, which is who gets these appointments? So, you know, look, the Supreme Court is a fairly insular and clubby place. And these appointments are in some ways a kind of paradigmatic example of that. So I took a look in this article from a few years ago at just like who got them. It's a very fancy article. It's in the Cornell Law Review. It's not that fancy an article, but it does have a good appendix, although it's now a couple of years out of date. But I did- It's going to call Invitations to the Court. Friends of the Court.

Friends of the Court by Kate Shaw. So, you know, if you are dying for 30,000 words on this topic, pick up that article. But it really is this like, you know, I think it is. It's not a sociological piece, right? It's a legal piece, but it, I think, has this question at the heart of it, which is not really about doctrine so much as the kind of this institutional culture of the court that creates these invitations and then who gets them. And I think it actually is this kind of quasi-patronage system that exists at the Supreme Court. If you take a look at who gets these appointments, it is the friends and former law clerks of the justices. It is frequently a former law clerk. So it's often the circuit justice, so the justice who is the kind of the administrative head of the circuit in which

the case arises. So this Sella case comes from the Ninth Circuit. Kagan is now the Ninth Circuit justice. And so Justice Kagan, it is well understood, is the one who issued the invitation to Paul Clement. So back with Windsor and DOMA, that was a case coming out of the Second Circuit. So does that mean Justice Ginsburg was the one who issued the invitation to Vicki Jackson? So I think we know that it was Justice Ginsburg who issued it. More recent invitees have spoken publicly

about having received the call, and it does typically come from the circuit justice. Yeah, the circuit justice, right, is the term. So usually it's a recent law clerk, not always to that justice, but or a friend like a Vicki Jackson, I presume, is a friend or friendly with Justice Ginsburg. RBG adjacent. Right. And it's often actually the first argument opportunity these people get. And that is big. That is incredibly valuable, Supreme Court argument, right? There aren't that many of them. They're hard to get.

So – I mean like this is not like total like cronyism. I mean like Vicki Jackson is a hardcore boss. Of course. Right? Paul Clement is a very seasoned litigator. But I think your bigger point is that to the extent they're fishing in a quite limited pool, there might be other people, again, who might really relish this first-time opportunity to argue before the court who are sort of not even on the table. And that might

be an issue. I think there are a couple issues. One, it's a very limited pool if they basically just say they're friends and former law clerks. That's a pretty small and fairly homogenous pool. But even within that pool, they could do a better job of choosing non-white guys to do these arguments because that's basically who they choose. Now, there have been a couple of exceptions since I wrote my article, but almost all of these recent – there are recent law clerks, white guys, first-time Supreme Court advocates. And there's a big difference, I think, between being an appellate lawyer at a D.C. firm who's done zero Supreme Court arguments and an appellate lawyer at a D.C. firm who's done one. Once you've done one, it's much easier to get the others. And a wonderful little historical tidbit is that the chief justice himself got his first

argument by being an invited amicus in a case in the 1980s called the Sperm Halper. And, you know, like... He got rated a B-minus. Actually, Blackman was just... He's such a jerk. Like, I've listened to that argument. Roberts was amazing in that argument, right? I mean, he rated such a jerk. Like, I've listened to that argument. Roberts was amazing in that argument, right?

I mean, he rated him really well. He rated him badly. He was amazing. He was so good in that argument. He convinced the justice to take a position that like three years later, they were like, oh, sorry, like our heads were clouded by the quality of the advocacy and they reversed themselves. Like that's, that at least is the law. Harry Blackman was just sipping on haterade during that argument.

But now did look, did this invitation set Roberts on the path that led him to be the chief justice of the United States? Not that, you know, he was a, was it a butthole cause? He had other things going for him. Sure, obviously. But it might, you know, I don't think it hurt. And so, yeah, so my point is, there are lots of good advocates out there, people who have done appellate arguments, who are seasoned practitioners, who could very competently discharge the obligations of an amicus argument. And the justices should do a better job of diversifying. I mean, this is an opportunity. They have to diversify the incredibly non-diverse ranks of Supreme Court advocates, and they should use that opportunity. The November hearing list just came out.

So I think there are 27 people arguing before the court in November. And how many of them are women? I think three. It's that's pretty bad. Yeah, that's really bad. Yeah, yeah. That's really bad. Yeah.

No, it's it's the numbers have been consistently quite bad. But then they sort of dip lower and you realize like, oh, it could get even worse. So, you know, 10, 15, 17, 20 percent, like I think the numbers of both advocates of color and women advocates usually sort of balance in that zone. But sometimes they dip below 10 percent. And so this is one of those years I think where it dipped last year and I think it will likely dip this year. To be really clear, I think SCOTUS is just sort of the cream on what is an equally bad situation at the lower federal courts as well. So, I mean, a couple of years ago, Judge Shira Shinlan, who was a district court judge in the Southern District of New York, now she is an arbitrator, a private arbitrator, but she wrote this article in the New York Times where she talked about the

fact that in many of the cases that she heard as a district court judge, they would be a very diverse group of lawyers on both sides. And there would be lawyers of color, women lawyers. But when it came time to argue the motion, it was always a guy, a more senior guy who got up to argue. And often she would ask questions of the more senior guy who was arguing before her. And the more senior guy would have to turn to his more junior female or associate of color and ask a question, confer, and then come back to her with the answer. And she's like, obviously that person knows the case. We just cut out the intermediary. Why don't you shut up and let me talk to her? And she talked about this and she said, you know, it really had a terrible

impact on the training of women and lawyers of color who did not get a lot of opportunities to actively litigate before the court. And because they lacked those opportunities to do motion practice before the court, they weren't going to be in a position to take on bigger litigations in the future. So this sort of narrow pool of lawyers who were arguing before were always the repeat players because they were the ones the clients would trust. They'd done it before and these other people were untested. And she notes that it's a client-serving industry. Clients don't want to take risks on people that they don't know about. And so the question is, how do you prevent a skew like this, recognizing that lots of money is on the line, clients want the best advocacy, the most reliable advocacy they can get?

And, you know, that's often in conflict. And I thought what was so fascinating was that Judge Jack Weinstein and Judge Ann Donnelly, both of the Eastern District of New York, read Judge Shinlin's call to arms and decided to take action. If the law firms and the lawyers would not let their junior associates step up, the courts would promulgate their own courtroom rules that would require them or encourage them to do so. And that's exactly what Judge Weinstein did. So he has a local rule that says, junior members of legal teams representing clients are invited to argue motions they have helped prepared and to question witnesses with whom they have worked. Opportunities to train young attorneys in oral advocacy are rare because of the decline of trials say, you know, a bunch of, we can have an argument where there's a few people working for one party.

Like, that's fine. You don't have to choose. If you refuse to relinquish this opportunity, you senior partner, just like carve out five minutes and bring a junior person up with you. And then they can say, I've argued before the Eastern District of New York. And I mean, so I'm raising this point of court intervention, like, you know, the court shaping a norm, because the court could also shape some of these norms. I think it's really interesting. We're at this point where we've had the most women on the court in our history, three, and yet we're actually going backwards in terms of women and people of color before the bar. Yeah. No, and I know, and that's what's,

so I think that the, we'll call it the Kagan invitation to Clement because I'm pretty sure it does issue from her – is complicated. So it is disappointing that she doesn't take the opportunity to just say there are a lot of qualified women and people of color who are – if you need an experienced advocate who are experienced advocates, let me reach for one of them instead of Paul Clement giving him his like 98th argument or something like that. He's already arguing half a dozen cases this term I think. So I do find that disappointing. On the other hand, I, you know, he is an absolutely stellar advocate. Like he's a Jedi master before the court. Like I do think, I'm not sure, I have a hard time naming anyone I think is more effective. But part of why he's a Jedi master is he's done it 99 times. Yeah. So I guess what I would say is here, the stakes for the future of the administrative state are so high that having

somebody who has this much comfort with the justices and also, to be honest, a former solicitor general, which he is, who, you know, I think there are some subtleties to the way that he will have to argue this case, especially if the justices ask him questions that go beyond sort of the narrow question of the structure of this agency and sort of touch on other agencies and their structures that he is in some ways uniquely situated to address. But I also really urge them, all the justices, when these opportunities do arise to make these invitations, it's this tiny little slice of Supreme Court practice, but they have total control over it. So if this was a value they wanted to inject, it could have real impact given how low the numbers are. Like one additional argument would actually make a difference in a sitting.

And you know what? There are other things like this. There are special masters. They appoint special masters. My husband was appointed a special master by Jack Weinstein. That's fabulous. And you know what? I think they're time-consuming.

Sometimes they don't pay that well. There's compensation involved. But like it's not a money-making opportunity. And yet it's a great way to sort of try a new type of practice. And guess what? The court does a terrible job. It basically goes to the same white male practitioners who have water and boundary expertise every time it does one of those cases. the court in the, you know, the proceedings, but, you know, preparing the report, but then you do actually argue in court. So there are lots of ways that judges and those with sort of control partners, you know, professors can, I think, sort of spread the wealth a little bit of these opportunities in ways that will allow, you know, junior members and women and people of color to get more opportunities that then generate additional opportunities.

So that like, you know, And yet it's a shrinking universe and it is disconcerting. So the Supreme Court advocacy universe is, you know, it is small and it is getting smaller. Like the kind of the expert bar is a few dozen people and they're total repeat players. And I think as the justices get used to hearing the same kind of cadence and the same style of argument, they think, I think it makes them even more averse to newcomers who might like shake it up a little bit. And that's not good for the court of the development of the law, frankly. Well, it does seem like in some of the low stakes cases where they're issuing invitations, like social security cases, for example, last term, Amy Weil was asked to argue a social security case, Culbertson versus Berryhill. And as you pointed out to me earlier,

in Smith versus Berryhill, another case of that nature, a non-clerk and a person of color, Deepak Gupta, was asked to argue. So low level for sure, not the CFPB case. But you know what? I think every Supreme Court argument is a huge deal. And I think that those were great and suggested to me that maybe this trend was shifting and it may be that this Paul Clement invitation is a bit of an anomaly and we will see them be a little bit more sensitive to kind of expanding or diversifying the ranks. I hope so too. Well, again, so there has been a lot of chatter about diversifying the ranks of clerks. I mean I think we hear about that a lot and I I know Vince Chabria, who is a judge on the

Northern District of California, has talked about a kind of Rooney rule, like when you're hiring clerks, like, you know, to make sure that you are picking from a diverse pool. And other judges are following through on that too. But I think it's really important to recognize that the ecosystem of the courthouse is not just the judge and the clerks, but these special masters, these appointed parties who are brought in on an ad hoc basis, as in these invitations, like those two are parts of the court ecosystem. And those are also enormous credential building opportunities for young lawyers, especially those who historically may not have been privy to those kinds of opportunities.

Yeah. So that's our call. If you're in one of these ecosystems, like think about it's not just hiring law clerks, right? It's sort of there are these other kinds of interventions that you might be able to make. Yes. I feel like there's a song that springs to mind when you think about this. Well, I mean, I was just thinking like when you were like Paul Clement, I was like, where are my girls at? Like there are three women like arguing before the court in November. Like that's – I mean, again, that is unconscionable. Like we are at the point now – we both teach in law schools where it is unexceptional to have 50 percent of the student body be women.

To have three of 27 advocates be women at the Supreme Court is shocking. It is. Where are my girls at? All right. That's all we have time for today. Thank you once again for joining us. We've gotten such great responses from all of you in the listener community. I was just at my law school reunion a couple of weeks ago, and I had a number of students come up and tell me that they love Strict Scrutiny. Thank you for saying hello. Thank you for listening to the

show. You can follow Strict Scrutiny on Twitter at strictscrutiny underscore. You can look at our website, www.strictscrutinypodcast.com. You can also find opportunities to boast, wear your strict scrutiny pride on your chest. We have sweatshirts, t-shirts, dog bandanas, everything you could want for your holiday shopping at the Strict Scrutiny website. And of course, you can follow all of us on Twitter as well. We could not do this without the tremendous assistance of not only Jamie and Leah, but also our terrific producer, Melanie Rowell, who is back from her honeymoon. Congratulations on your marriage, Melody. We are also grateful to Catherine, who helped us out during Melody's honeymoon. And we are also very specially grateful to Eddie Cooper, who wrote the incredibly cool

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