Strict Scrutiny - Wilding Out

Episode Date: February 22, 2021

Melissa, Kate, and Leah recap opinions, preview the first week of arguments in the February sitting, and discuss the perils of Zoom filters and group texts. Follow us on Instagram, Twitter, Threads, and Bluesky

So far, only Leah has forayed into making the TikToks, but Melissa and I aspire to. We're just not totally ready yet. No, we don't. Okay, I do. Kate does. Kate is going to make some TikToks before the end of this. 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. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. And in today's show, we will be covering breaking news, including recapping recently released opinions, and then we'll preview the first week of the court's February sitting. And of course, as always, we will close out with a little bit of court culture. So let's get started with the breaking news. Kate, had anything happened? What do you expect when you're impeaching? We had a surprise outcome in the president's second impeachment trial. No, we didn't.

I was flummoxed by this. It was so unexpected. It was not an unexpected acquittal. There were more votes to convict than I think some people went in anticipating. And I think that's not insignificant. But Leah and I debriefed the impeachment trial at length last week. So I think maybe the only thing that has really happened of consequence since then is that earlier this week, when Trump somewhat sort of seemed to return to public life to mourn the death of Rush Limbaugh. He was still talking about a stolen election. I actually kind of couldn't believe it, but then I guess I could. So look, if you think all this is in the rearview mirror, it's not.

Stop trying to make voter fraud happen. Stop trying to make it happen. They're never going to stop with that. They're all going to keep trying. But for now, let's leave it in the rearview mirror. The court opinions, though. So the court issued a number of opinions and decisions from this term, including Republic of Germany versus Philip and Hungary versus Simon. And if you are movie buffs

and you listen to strict scrutiny, you'll know that these are colloquially known by us as the women in gold cases. So these were challenges to the Foreign Sovereign Immunity Act's exemptions for takings of property in violation of international law. And the question here was whether or not that exception would extend to claims by citizens against the state of which they are citizens. So the court concluded, and they sided with the individual states here, Germany and Hungary, saying that the Foreign Sovereign Immunities Act exemption for takings of property did not apply to those who are making claims against the country in which they are citizens.

And in making that statement, Chief Justice Roberts emphasized in the opinion that the United States' law governs domestically, but it does not rule the world. And he has sounded this theme before in other cases where foreign plaintiffs have sought to recover in U.S. courts for what might be regarded as human rights abuses by other countries. And in this case, he actually went a little further to suggest that it would be particularly unwelcome if a court in Germany adjudicated claims by Americans that were entitled to hundreds of millions of dollars because of human rights violations committed by the U.S. government a long time ago. So this case, for those who are following it, focused on efforts to recover the Guelph treasure, which was purchased in 1929 by a consortium of

Jewish art dealers. The consortium later sold the treasure to Nazi-held Prussia in 1935 for a price that was far below its market value. And the consortium's heirs argued that their case fell within the expropriation exception because the sale was coerced as part of the Nazi campaign of genocide against Jews, a practice that would clearly violate international law. And if you follow us on TikTok, you would know that this case is related to the woman in gold since that was the subject of our TikTok recap. And if you don't follow us on TikTok, you should follow us on TikTok. So far, only Leah has forayed into making the TikToks. But Melissa and I aspire to. We're just not

totally ready yet. No, we don't. Okay, I do. Kate does. Kate is going to make some TikToks before the end of this. I think that's right. Okay. So Melissa, no, you're not committing to doing it at any time. Unless we're going to be doing like dancing, like form dancing or something like short TikToks that involve dance. I want no part of this. If we did, you would. So you should do those TikToks on our TikTok because I'm certainly not dancing on TikTok. You can do the dancing. I will do the other stuff. Okay. My teenage daughter just wanderedered in because she literally looks genuinely alarmed at the prospect of me on TikTok. You're going to shut it down right now.

She's trying to shut it down. She's like, no, no TikTok for you. I'm going to leave the door somewhat open. So to be continued. To be continued. We'll see. Okay, so the next case we wanted to recap was Salinas v. Railroad Retirement Board, which involves a refusal to reopen a prior denial of certain railroad employees' benefits and the question of whether that refusal to reopen is subject to judicial review. So in this case, Justice Sotomayor wrote for a 5-4 opinion holding, yes, it is subject to judicial review.

So it was Sotomayor plus the chief, Breyer, Kagan, and Kavanaugh. It was actually a pretty straightforward statutory interpretation opinion, but it also leaned fairly heavily on the presumption in favor of judicial review of final agency action, which it concluded that this refusal to reopen was. The dissent was Thomas Alito Gorsuch Barrett, the new four horsemen. That's a good one. But I mean, seeing this breakdown was for me a reminder of this is the court we have now and seeing that block of four together and seeing what was necessary to get a five, four under these conditions did not make me particularly excited about all that is to come. Well, I mean, maybe there's a little bit of a silver lining here because it wasn't obvious from oral argument that this would be the outcome because only Justice Kavanaugh seemed

especially sympathetic to the petitioner's claims here. So the petitioner did manage to come up with five. I don't know how he got those five, but it wasn't obvious at oral arguments that there were four other votes forthcoming. Yeah, no, I think it's an accomplishment if Sotomayor was able to pull that sort of five-member majority together and to keep it together. Yeah, and I think it's not insignificant that the first 5-4 opinion by this newly constituted court has this particular breakdown, although I don't think we can all expect to see a lot of 5-4 opinions that break this way. But hope springs eternal. You never know.

So also in Supreme Court opinion news, there was some activity on the shadow docket that we wanted to cover. One of those opinions was in Dunn versus Smith. I guess there were several opinions and no actual opinion of the court. So in this case, the Supreme Court denied Alabama's request to vacate an injunction that had been entered by the famously liberal 11th Circuit to prevent the state from executing Willie Smith unless he was permitted to have his pastor in the execution chamber with him. And this opinion was notable because it was unclear where the fifth vote to deny Alabama's request to vacate the injunction came from. Justice Thomas, the Chief Justice, and Justice Kavanaugh would have

granted the request to vacate the injunction, with Justice Kavanaugh writing a dissent in which the Chief Justice joined. And then Justice Kagan wrote an opinion explaining the denial, but that opinion was joined only by Justices Breyer, Sotomayor, and Barrett. That leaves Justices Gorsuch and Alito unaccounted for. And we know both of them didn't want to grant the application to vacate or there would have only been four to deny. So one or both of them agreed with Justice Kagan, perhaps for some reasons not stated in the Kagan opinion. And it's just weird that we don't know where the fifth vote came from. You know, oftentimes the court will leave us wondering, they did what they did in the order we'll talk about in a second, but we aren't always left Ray, where the court denied a stay of execution on similar grounds in a case involving a Black Muslim man, and Murphy v. Collier, where the

court granted a stay request for a prisoner who was Buddhist. There was a lot of activity on the shadow docket, actually, in this last week. Another development on the shadow docket, what I haven't come to think of as the COVID shadow docket. In this case, the court granted a stay of California's COVID restrictions on in-person gatherings in what are known in that state as Tier 1 areas. So this was, as a number of these COVID cases have been, another extremely fractured decision. Okay, so the court granted the stay as to the in-person gathering prohibition, but denied the stay as to percentage limits, which include a limit to 25% capacity on gatherings in T1 areas, also denied as to the prohibition on singing and chanting during in-person gatherings. So sorry, there's a lot of negatives there. What that means is California can't enforce its prohibition on in-person gatherings, but it can continue to

enforce a 25% capacity limitations and its prohibition on singing and chanting. So the chief wrote for himself alone to explain granting, I guess, so much for deference to state officials, although, you know, he did kind of nod to his previous opinions in some of these COVID cases, saying deference, though broad, has its limits. The chief justice wrote separately to say he saw no basis in the record for overriding some state public health determinations, in particular regarding the singing and chanting prohibition, but found the state's present determination that the maximum number of adherents who can safely worship is zero appears to reflect insufficient appreciation or consideration of the interest at stake. So he's perfectly happy to second guess some public health determinations,

just not all of them. Kavanaugh and Barrett concurred in the partial grant of the stay. They did seem open down the road potentially to also enjoining the singing and chanting ban, but said that on the record here, it was unclear whether it was neutral and generally applicable or singled out religion. Alito would have stayed the 25% capacity limits in bans on singing, but would have given the state 30 days to produce evidence that it needed those requirements. And Gorsuch and Thomas would have burned the whole thing down, which may just be the theme of the day and of the kind of present era. They would have enjoined 25% capacity limitation, the singing ban, and the in-person gathering ban. Kagan, joined by Breyer and Sotomayor, dissented. Extremely powerful dissent that

included really memorable language like, if this decision causes suffering, we will not pay. Our marble halls are now closed to the public and our life tenure forever insulates us from responsibility for our errors. I mean, she's worked up about this, and I think correctly so. Part of me is sort of wondering about this opinion. You know, there are a number of different variants, which are supposed to be more virulent than the original strain of the virus and can be more problematic. Is the court suffering from kind of pandemic fatigue? Like they're just tired of this and we're all tired of it, obviously. But it just seems like a curious time to second guess science and like legislators making decisions based on or state officials, not just legislators, making decisions that are ostensibly based on science. passage that Kate read noted the possible hypocrisy of the course closing its doors to the public while requiring California to allow in-person gatherings, do we also know whether all of the justices are completely vaccinated? I mean, that is just kind of an additional

detail that just makes- I'm sure they are. I'm sure they are. I hope so. They really do. Details. You know who's not vaccinated? This girl. Or this girl. Nope, me either. Although my parents are both vaccinated now, so they drove in Spanish again for the week, having gotten their second vaccine about a week and a half ago, which is wonderful. It just feels like they're tired of all of this too, you know, just like having to sort of mediate all of these disputes. But it's just sort of like, this isn't going to go away. I just think, no, I agree. I think that they are, you know, I think they have like a sense that emergencies sometimes do require extra deference to, you know, politically accountable decision makers, but that they don't want to kind of remain hands off when constitutional liberties are at stake. And we're talking about an emergency that has a duration that's as long as this does.

And like in the abstract, I think that proposition is actually correct. The problem is this is not an emergency that like is going to is short lived the way a lot of emergencies are. It's going to take time and it's going to have, you know, peaks and valleys. And if we're in the middle of, you know, we are coming down in lots of ways, but you're right, obviously, about these new variants, Melissa. And so for the court now to say, OK, we have been deferential for long enough. Now we need to sort of reassert ourselves just at the moment in which public officials seem to be getting this under control in a lot of places just seems so crazy. It would be worth noting for a student note or even a longer law review article, like what has been sort of the temporality of the court's understanding of emergencies in past cases? Like, have we ever had an emergency that was like a whole year. You know, the Spanish flu from the 1900s maybe, but even that seems to have been on its way to resolution

where this seems, I think, slightly to be still a little bit not quite under control because of the different variants. Well, what about, you know, like the Great Depression or wartime, right? Like those are also considered, you know, exigencies. And here, again, you know, part of what makes this difficult

for me is there is an end in sight in that we do have the vaccine. And so staying safe in this kind of ending period is just so important. And so irresponsible of the court to thwart the efforts to do that in this homestretch. Completely agree. And I think that's what Kagan is saying, basically. Can I talk to you about something insane and irresponsible? Of course. I was on Facebook for the first time in months, a couple of nights ago. I think, I guess it was Valentine's Day. And a high school friend who lives in Florida, I went to high school in Florida,

is posting a picture of, you know, her and her partner at dinner. And I literally thought this was like one of those Facebook memories from like 150 years ago, because everyone in this restaurant, it was like a packed restaurant, like a normal size restaurant, totally packed, not one person wearing a mask, including the servers. And I was like, oh, this must be from 2017. No, it was from 2021 in Florida. Like what is happening down there? Insane. Oh my gosh. Insane. This is never going to end, you guys. I can't even believe it. We're never getting out of this. It's never going to end. Right. All right. Should we go back to the shadow docket for a minute? Yes. Okay. Sorry. Sorry. We've gone rather far afield. But no, it's good. It's good. So we are noticing, obviously, this intense uptick on the court's

disposition of really important matters on the shadow docket, including but not limited to these COVID cases. And evidently, people but not limited to these COVID cases. And evidently, people in Congress are taking notice as well. So the House Judiciary Committee held a hearing on Thursday. So we're recording Friday. So yesterday on the shadow docket and the potential for shadow docket reform. It featured Amir Ali of MacArthur Justice Center, Lauren Ali Khan, who's the D.C. Solicitor General, our friend Steve Loddick at University of Texas, Austin, who somehow found enough working power to zoom into this hearing from Texas, where there's still huge power outages, and then Michael Morley at Florida State. I read a little bit, some write-ups of the hearing. It seemed as though it were actually really substantive. I haven't had a chance to listen to it. Any thoughts on whether there's any possibility of shadow docket reform that might be on the horizon?

I didn't take this necessarily as being a necessary precursor to reform. I think one of the first things that has to happen is people actually have to understand what the shadow docket is and why it is potentially problematic. And so I think this was a consciousness raising hearing as much as anything. Yeah. And it was interesting. So I did watch it and some of the congressional representatives thought the term shadow docket was pejorative. But on the other hand, a lot of did seem to get behind the idea that it is disturbing for these decisions to be made. They kept using the phrase in the dark, not knowing who made the decisions, not having the decisions explained. That actually seemed to attract attention from both Democrats and Republicans.

No clear idea about like what exactly the solutions were, but there were several ideas they talked about as far as, you know, addressing the timeline, you know, to take cases to the Supreme Court or establishing some kind of mandatory jurisdiction over a certain subset of cases that would require them to note votes and create opinions. So I don't know, but I think this is a promising first step. Yeah. And sunlight has to help, right? Part of the point here is that the court is not particularly worried about blowback from what it does in the shadow docket because it rightly believes people don't pay that

much attention to what's on the shadow docket. So this could be a step in the direction of changing that. And so that's productive in and of itself, I think. I did an event this week and, you know, we've talked before about ACOG, this, you know, important shadow docket case about access to medication abortion. And it was like, right, they – you wrote about this case, Leah. Like they smuggled in potentially some pretty important law in this shadow docket order. And I was like – I was reading the order and I was like, Oh, my God, like, they're gonna overrule Roe on the shadow docket. Like, they're just gonna. Well, I mean, South Carolina just,

you know, we're recording on Friday, just yesterday passed the law. That's effectively a heartbeat bill, you know, effectively prohibiting abortions that was enjoined immediately by a district court judge. I mean, what if the Supreme Court just stays that injunction? And no opinion just stays right. Yeah. Like nothing prevents them from doing that. Right. Not with a bang, but a whimper like that. I mean, I don't think they're really going to do that. But like right now, there's nothing stopping them. But, you know, potentially sort of public opinion and blowback. So anyway, anything we can do to call attention to the shadow docket, I think is actually productive. OK, before we move on to previewing, just a couple of other things we wanted to flag some changes in positions by the Biden Justice Department, specifically the

Solicitor General's office. So first, the Affordable Care Act case, the Solicitor General's Office. So first, the Affordable Care Act case, the Solicitor General's Office sent a letter to the Supreme Court advising it of the change in position. The S.G. is obviously now taking a position that zeroing out the mandate did not render the law unconstitutional and also that if the court concludes otherwise, that in fact that provision is severable. Noting in the letter, I thought, you know, kind of interesting that the SG's office didn't ask for any extra briefing on the issue, basically said arguments and briefing concluded months ago. And so there's no need for supplemental briefing. I think California did an extremely effective job in arguing the position that the SG's office is now arguing. So I think it was

probably right not to seek any additional briefing on that. You know, they didn't talk about standing, which I thought was kind of interesting because standing was weirdly central in the argument. But I think they just wanted to make clear that their position on the merits of the case was different from the Trump Justice Department's. So that was one change in position that was significant. Another one is in Cedar Point Nursery versus Hasid, which is a case set to be argued in the March sitting. We discussed this case when the court granted cert. This is another constitutional attack on unions. This time,

the constitutional vehicle is the takings clause rather than the First Amendment, as was the case in the line of cases that led up to Janus. So the Trump administration had sided with the employers that were challenging the California regulation that gives unions some access to certain agricultural sites to do union organizing or to inform individuals of their union rights under California law. Anyway, the Trump administration had sided with the employers challenging that regulation, and the Biden administration has switched sides. We will do a full preview of the case, which I think is actually a really important one, prior to the argument in March. And then the last of these was this Arizona voting case that is going to be argued in the

second week of the February sitting. So we'll talk about it next week. And I don't know that I totally know what to make of this letter. So the Biden administration sent a letter suggesting that they adhere to the Trump DOJ's view that the challenged Arizona law, which involves both throwing out of certain provisional ballots that are cast out of precinct and also a ban on so-called ballot harvesting, are permissible. So they actually don't disagree with the bottom line that these laws do not violate Section 2 of the Voting Rights Act, but that they disagree with a specific test that the Trump Department of Justice advocated. I was surprised that they agree with the bottom line that these laws are fine. And I was I don't really know how any of this is going to play out at oral argument since they haven't told us exactly what they do think the test should be.

No, it's super curious. And these changes in administrative positions have oftentimes garnered questions at oral argument. You know, they're the phrase that the solicitor general's office used to use in the brief was upon further reflection, you know, we've changed our position. And then people started joking that actually that meant, you know, upon election, you know, you changed your position. And this is something, you know, that came up during the Obama administration with the court kind of skeptically asking, you know, the Obama administration why it had changed positions and pressing them, you know, whether the reasons were legitimate. Here in the voting rights case, I was a little surprised. And I don't know exactly how the justices might know what the federal government's position is. They're not participating as an amicus. And so it was just

a little bit strange to me that this happened. Speaking of the Solicitor General, when do we think we're going to have an SG nominee? I mean, who knows? But if and when there is a nominee, apparently they can't be anyone who tweeted since tweets are, we learned, disqualifying for Democratic nominees in the current Senate. You could be president and tweet. That's what I heard. That's what I heard. Well, sometimes. Some presidents can be. Yeah, you can definitely do that. They let you do it when you're a star. So the February hearing list is out, and there are 18 advocates arguing. Five of these advocates are women, including two from the Solicitor General's office.

And two of the advocates we think are lawyers of color. So that's some progress. So yay. Yay. Makes me feel so great. I can't believe we have to celebrate these numbers. I know. I was jokingly celebrating, to be clear.

But it's better. It's actually better than the last list. Yes, it is. It is better than the last one. It is. I mean, it's baby steps. I'm training a puppy. So I'm just, you know, little baby steps.

They peed on the pad. I love it. I guess this counts as the legal profession slash Supreme Court bar peeing on the pad. Good job. Way not to take a dump on the couch. Oh, Leah. Oh, my God. Joe Manchin is never going to vote to confirm us now.

We are just so crass, you guys. That's so funny, though, and charming. Also, because we've talked about qualified immunity on the show, I wanted to note a recent Fifth Circuit opinion, Ramirez versus Guadarrama, which held that police officers were entitled to qualified immunity after they tased a man who was soaked in gasoline, igniting the gasoline and engulfing the man in flames, which in turn burned down his family's home. The Fifth Circuit said the officers were entitled to qualified immunity because it was not clearly established in the case law that you couldn't tase someone when you had reason to believe that tasing them would light them on fire. One of the officers allegedly said before they tased him, if we tase this guy, we will light him on fire. Qualified immunity gone wild? Who knows? I mean, this one was so egregious that I couldn't help but wonder whether a summary reversal might be possible, right? There was

that Fifth Circuit opinion last fall, Taylor versus Riojas, which we talked about, which involved these shockingly unsanitary and unsafe confinement conditions. And the court did something it rarely does in these cases, right? It summarily reversed the grant. And that was a Fifth Circuit case. Do you think there's any reason to hope that this case might meet a similar fate? Perhaps, but I'm just not optimistic. Yeah. The Taylor case also, I mean, the Eighth Amendment concerns, like Fred Smith raised this on the earlier episode that he did with you guys about qualified immunity. I don't know. Maybe that's a distinguishing factor. I don't know. But I mean, the facts of this case are bananas. Yes. Truly. Yeah. Yeah. But and if that I think if I recall correctly, the conversation with Fred, I think that that's a reason to think

that this despite how bananas the facts are, right, will not be would not be a candidate. Right. And so and these are just the court is even more searching in its demand that there be like factual, like perfect identity with a prior case. Like, I'm sorry, there's not a prior case involving lighting a man on fire. And I'm sure right that had there been one, then police officers might know not to do that. Totally. My God. OK, so let's shift gears and preview the February sitting. So this sitting is especially light because several cases on the court's docket were mooted by Biden administration policy changes. So that includes the case that challenged the president's construction of the which certain people who applied for asylum in the United States were made to wait in Mexico after being returned there. So, OK, so in today's episode, we're just going to preview cases from the first week of the sitting. And the next week, we'll talk about the second week, which does contain several pretty interesting cases, including the Arizona case that we just talked about. OK, so first of these will be brief.

Florida versus Georgia. This is an original jurisdiction case with a special master or it's involving a challenge to a special master's report. This is a long-running dispute regarding the Apalachicola-Chattahoochee-Flinch River Basin. I'm so glad you said that right. Did I? I was looking at Florida over there. I was waiting. I was waiting. No, it was Apalachicola. You got to stay with the little twang there. I got Apalachicola right. Yeah, that's good. That's good. Chattahoochee. Apalachicola, Chattahoochee, Flint, River Basin.

Yeah. Okay. All right. I got it. This will make up for all of our crass comments that you can say Apalachicola with a little twang, right? That'll charm. So folksy, so charming. Awesome. Okay. So that is the River Basin that is at issue. The case has actually been before the court before. It is now on its second special master. The first was Ralph Lancaster of Maine, who was actually a four timeby insider affair as our amicus invitations. So Lancaster was somebody who had done this a bunch of times. And I think it was a pretty big part of his kind of profile in Maine where he practiced. Anyway, so he passed away during the pendency of the case and the court appointed Judge Paul Kelly, because we all know that lady lawyers

can't handle water rights disputes, obviously. So again, I come back to you. Have there ever been any special masters who are women? Like, do we know? How do we find out? At the court, there's one. So at least that I am aware of, who is a Munger lawyer. And that's of, you know, I have pulled this data together. There's like 120, 140 of these special master appointments that I've been able to identify. But I'm sure that's not an exhaustive list because they're weirdly hard to research.

But that's a big denominator. and the numerator is a one, as far as I know. I'm not sure. I am not sure. I personally am not angling for a special master or river master appointment. But I am sure. These are a big deal. They're remunerative, and they are high profile, and they give you a lot of cachet and stature in the community in which you practice to be somebody to whom the Supreme Court routinely turns. And I am sure there are plenty of women practicing law who would appreciate these invitations. This is the Justice Ginsburg argument in the VMI case. Like, does every woman want to go to VMI? Probably not. But if there's a couple of women who want to go, like, they should be able to go. Like, I mean, I'm sure

there's some woman who wants to be a special master in a riparian rights case and I want to make it happen for her. Yeah. Thank you. I totally agree. Yeah. It's the rules of feminism. River dance. Okay. So we're going to do, we're going to make a TikTok video. There's a river dance TikTok video. Okay. Okay. Kate, you're, you're joking. I've already made- I think this is going to do huge numbers.

No, wait, wait, you're joking. I've already made... I think this is going to do huge numbers. No, wait, wait, wait. You're joking. I've already made a TikTok that is pre-made for the day Florida versus Georgia is argued explaining special masters and also saying that when a case involves a river, sometimes the special master is known as the river master. And I use a picture of river dance because as I said, I'm not dancing in TikToks. Melissa, if you want to do a river dance TikTok, this is your moment, girl. You can bring those spirit fingers too. You guys don't sleep on

my Irish step dancing. You don't know what I can do. I'm not. I'm encouraging it. This is a very serious request. Please record a little one. Wait, Leah, can you add it to your prerecorded Florida versus Georgia TikTok? Or we can just do two? No, but we can make another. There is no ceiling on the number of Florida versus Georgia TikToks we can make. This is the most play the Florida versus Georgia case has gotten. Yeah, that's true. But I feel like Melissa's looking a little skeptical about the whole thing.

So I don't want to overpromise. We are making original jurisdiction TikTok happen. Okay, it's true. But I feel like Melissa's looking a little skeptical about the whole thing. So I don't want to overpromise. We are making original jurisdiction TikTok happen. Okay, it's gonna happen. I can't overpromise with these moves. These moves are gold. There you go. Okay, hard to top that case preview and that excitement. But another case that we wanted to preview is a set of consolidated cases, Wilkinson

v. Dye and Wilkinson v. Alcarez-Enriquez. And the question in these cases is whether a court of appeals may presume that an applicant's testimony is credible whenever an immigration judge and the Board of Immigration Appeals adjudicate a withholding of removal application or a claim without making an explicit finding of adverse credibility. So let me explain that a little bit. The general standard of review in immigration cases is substantial evidence. Essentially, the federal court asks, was the immigration judge and Board of Immigration

Appeals decision supported by substantial evidence? And in immigration cases, the REAL ID Act talks about something called an adverse credibility finding, which it says must be, quote, explicitly made. And if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal. So the question here is, without that explicit finding, can a court of appeals essentially presume that an applicant's testimony is credible? Here, I thought the amicus brief from former immigration judges was quite helpful on the implications of a credibility finding, which doesn't necessarily mean the testimony is true or that an applicant's claim would succeed. And also helpful just in explicating the institutional

role and job of immigration judges. And there's also a separate administrative law question in one of the cases about whether a remand is required or whether the Court of Appeals could conclude that the evidence compelled a finding of likelihood of persecution entitling the applicant to relief. So am I right that there has been no indication that DOJ has changed its position at all in this case? So it was briefed. So it was briefed under the Trump administration. The opening brief was filed when Francisco was still the SG, the reply when Wall was acting SG. And it was it was interesting to me. Right. So, you know, it's a pretty harsh position that is adverse to the claims of immigrants and one

that either no or maybe I'm not sure any court of appeals has actually even endorsed this position. And anyway, it's just interesting, like the Obama administration in cases like Jennings versus Rodriguez, right, took similar positions. I mean, different kinds of issues, but ones that were generally adverse to the, you know, kind of type of or even availability of review for certain kinds of immigration related claims. Anyway, I just think it's interesting. Like this week, the Biden administration is dropping this comprehensive immigration reform bill that is admirably broad, but also that they're gearing up to make these sorts of arguments.

And I had to sort of had to wonder whether there would be any distance between whatever gets argued, you know, next week and the briefing that was completed under the Trump administration. And I think the answer is maybe no. Yeah, maybe not. across Democratic and Republican administrations, taking positions that are quite aggressively adverse to people raising immigration claims. All right. Another case on the docket for the first week in February is, I guess, the first sitting week in February, not the actual first week in February, is Lange v. California. Under the Fourth Amendment, police officers are required to obtain a warrant before entering a home. However, the court has recognized an exception to this requirement in

emergency conditions, such as when the police are in hot pursuit of a suspect. The question in Lange is whether this exception applies when the police are pursuing a suspect whom they have probable cause to believe has committed a misdemeanor. The facts of the case are very compelling. A California Highway Patrol officer followed Arthur Lang home because he believed that Lang had violated state traffic laws by listening to loud music and honking his horn a few times while driving. After Lang pulled into his garage, the officer, who had turned on his overhead lights but did not use his siren, that's important, entered the garage by putting his foot under the garage door to block it from closing. Upon approaching Lange, the officer said that Lange

smelled of alcohol and so he charged Lange with a DUI. In challenging his DUI conviction, Lange argues that the circumstances of his arrest did not constitute an emergency sufficient to relieve the officer of the requirement to seek and obtain a warrant. The lower state courts disagreed here, and on appeal, California concedes that federal and state courts have reached different conclusions on the Fourth Amendment question presented by this case, but it does not think that this case is a good one for making this determination, because Lange's DUI conviction should stand regardless of the outcome of this proceeding. On appeal, the state

argues that pursuits for misdemeanors do not always justify a warrantless entry, but it maintains that courts should use a case-by-case approach to determine whether there is a genuine emergency. There's been an amicus appointed to defend the judgment below. That's Amanda Rice. This is necessary because California conceded an error. And actually, the Solicitor General has filed a brief in support of the California Supreme Court's position as well. But we just note that Amanda Rice's appointment is one of these circumstances where the justices have chosen to help diversify the pool of advocates before the Supreme Court bar because they have appointed someone who is

an underrepresented person before the bar. What do we think about that? Yeah, it's good. I mean, I was just looking over, you know, I did this article a few years ago, and I don't have the most recent data, but I think of the last 10, this makes her the second, or maybe it's the, so there have been two women in the last nine of the amicus invitations, and that is like light years better than the previous, you know, four of 55, which I think was the number that I had in my article. So it's marginally improving, but they make these a couple times a year and it is still the case that they rarely give them to women. So yay, Justice Kagan, right, for doing that. And I really, really hope that these future invitations go, you know, I would

love to see them go to a broader pool of individuals who aren't necessarily former clerks to the justices. But if they're going to, you know, kind of keep to that model, at least not just to white guys who are former clerks of the justices. It's also a really interesting case. If you're going to be appointed to something, I mean, you obviously don't have much choice about what you're appointed to. This one seems like a really interesting case to be involved in for sure. All right. So that sort of rounds out the week ahead for the court. So let's talk about a little court culture and the court culture prospects have been so rich over the last couple of weeks. So I just want to talk a little bit about Zoom cats. Will you ladies indulge me? Always. Meow. Okay. So all of you already know this, listeners. A lawyer literally got got by a Zoom filter in oral arguments. So he was appearing before a court,

but apparently one of his children had actually been using the computer that he was using for his oral argument and they had downloaded a Zoom filter that made him appear to be a cat. So he was truly flummoxed for about five or six minutes as he tried to figure out how to get the Zoom filter off. And he said, this was remarkable. He told the court, I am not a cat, which was both obvious, but not obvious either. So that was hilarious, But it wasn't an isolated incident. So there have been a number of circumstances in which pets have been wilding out in Zoom courts all over the country. So in a recent hearing in the District of Massachusetts, a lawyer made a valiant effort

to keep his dog from barking during an appearance before U.S. District Judge Douglas Woodlock. It was a futile effort. The dog continued to bark, eventually prompting Judge Woodlock to declare that he did not have a dog in this fight. I love it. Relatedly, in oral arguments at the First Circuit, there was an interruption when Judge O. Roshery Thompson said her cats were, quote unquote, driving her nuts, and she got up to let one of them out of the room. This seemed to perplex one of the attorneys who asked Chief Judge Jeffrey Howard whether she should wait until Judge Thompson returned. Judge Howard responded in the

affirmative explaining that cats take precedent in this court. Well said, sir. Also doing a little wilding out was Ginny Thomas, wife of Justice Clarence Thomas. So the Washington Post reported the following story. Virginia Thomas told her husband, Justice Clarence Thomas's former law clerks, that she was sorry for a rift that had developed among them after her election advocacy of President Trump and endorsement of the January 6th rally that resulted in violence and death and the siege on the Capitol. She wrote, I owe you all an apology. I have likely imposed on you my lifetime passions. Okay. She then went on to speculate, my passions and beliefs are likely shared with the bulk of you, but certainly not all. And she said, let's pledge to not let politics

divide this family. She also said many of us are hurting after leaving it all on the field to preserve the best of this country. The article also reported on some, you know, exchanges between and among Thomas clerks. So after one law professor posted an article about how rioters had usurped religious symbols, another former clerk called it offensive drivel. Another former Thomas clerk is John Eastman, the person who spoke at the rally on January 6th. He wrote to the clerks, rest assured that those of us involved in this are working diligently to ascertain the truth. from Professor Stephen Smith at Notre Dame, who accused him of spreading a false narrative. So what to say or think about any of this? First of all, this listserv is wild, and I want to be a part of it. I want to know what's happening. I know. Or at the very least, if future participants in the listserv are interested in leaking

to individuals, please get in touch with us. Like, we would be so happy to help amplify whatever leaks from this listserv you have concluded deserve to see the light of day. Also, not to skip ahead, but if any of Heidi Cruz's friends want to leak her texts to us, too, we will also cover those. Sorry, back to the Thomas Clerk listserv. The mailbox is open for those as well. This is unlike any, like, clerk listserv that I am a part of. Like I'm on two clerk listservs and they're pretty anodyne. Like, you know, horseshoe tournaments, things like that.

Or like, when are we going to get together for a reunion? Like it's pretty low key stuff. So last week at the insurrection, nothing like that ever happens on Bless Serve. So I think there's just like a general assumption that, you know, we may share certain sensibilities, but they're not always going to be universally shared. And so people just sort of kind of stick to topics that aren't necessarily going to be inflammatory. This seems like, you know, maybe there was, at least at the beginning, a shared sense that everyone was on the same page. So a couple of things.

One, I mean, I think that it's both really disturbing that it's John Eastman, we obviously all know, was sort of on board with that. But that other participants in this list were at least one in the leaked materials, Wendy Stone Long, who referred to a stolen election in the leaked text. So, you know, just that, right, that there was this exchange that involved at least a couple of individuals, you know, making clear that they bought this lie that the election was stolen. So that was deeply disturbing, although we should definitely say that those claims didn't go unchallenged, that there were participants in the listserv who objected. And that, in fact, is what brought about, you know, Ginny Thomas's apology and probably brought about the leaking of the exchange. I mean, one thing I sort of I'm a little bit of two minds about this. I mean, I generally think that she's obviously, you know, a political

activist and a lot of people have raised questions about the propriety of some of her activities in light of her husband's job. And I actually think that public officials shouldn't be, you know, on the hook for the activities of their spouses for the most part. Now, I think when it comes to actually, if she actually participated in the organizing of an insurrection, I think that's different. And I don't think that that's not what these leaked messages revealed, you know, sympathy for the stolen election narrative, absolutely. But as a general matter, her activities, I think, are her activities and they're not Thomas's. But she's participating in this listserv as though she is on the team,

like she is a member of this kind of intellectual community in a way that is different from just a spouse who has her own life and her own activities. And that makes me think that actually it becomes more legitimate and fair to raise questions about the propriety of what she does. If what she does, she understands to be something that is a shared enterprise of some sort with the members of her husband's kind of clerk classes. And so I don't know, like it complicated my previous pretty strong feeling that whatever she did was sort of, you know, kind of not really on her husband. Yeah, I think that's kind of the point. Now, one, these other listservs of which I am a member, you know, the judge's partner does not participate. So that's very different, obviously. But it's also generally like, you know, something like the events of January 6th,

I think you could assume that there is not necessarily a unity of agreement about that among a group as numerous as the one on this listserv. And so there just seemed to be a kind of weird level of assumption that was operating to just assume that we're all on the same page. Yeah. Something else that I had wanted to flag is we're recording on Friday, as I said, and a preview of a 60 Minutes episode has aired. And that episode is with Judge Salas, whose son was murdered and her husband critically injured by a misogynist gunman. And in the preview, which has now been reported on by some outlets, the judge says the gunman also had a file on Justice Sonia Sotomayor. And I mean, this is terrifying. And, you know, I think like really underscores the calls for additional protection of federal judges. It's just extremely scary that, you know, they are now

increasing targets and receiving reportedly more threats. And, you know, they are now increasing targets and receiving reportedly more threats. And, you know, some of these are being carried out. And if anyone comes for Sonia, I'm going to lose it. I would also lose it for lots of reasons. Again, I just come back to, I said something like this in other events, and I just want to just make it clear, like so much of like this kind of activity, which I don't think is divorce from the insurrection. I mean, all of it seems to have a kind of weird misogynist glaze to it.

The rioters going through the Capitol, calling Nancy Pelosi a bitch, looking for Nancy Pelosi, looking for members of the squad, there just seems to be like a really profound discomfort with the idea that what we understand as leadership in our country looks really different from what it used to look like. And I just remember before January 6th, one of the Trump spokespeople said that Donald Trump was the manliest president in the history of the country, the most masculine person to ever occupy the office. And that's totally weird and possibly irrelevant, unless you are deeply concerned or you have profound anxiety that, you know, future leaders aren't not necessarily going to be masculine because they're not men. And, you know, so I think the sort of misogynist gunman, you could sort of think of it as a one-off or anomalous, but I actually think it's part of this broader discomfort and anxiety about women sharing the stage and being leaders.

And it's not just misogyny, but racism as well, right? Like many of the participants in the insurrection were avowed white supremacists. I doubt it is a coincidence that this gunman had a file on the one female justice of color on the Supreme Court and that the judge whose family he targeted was also Latina. So I totally agree. I mean, hearing just that clip that I guess we're going to hear the whole interview this weekend, maybe just feel like, oh, my God, this feels like we maybe are entering this moment of political violence or that, you know, just like that. Entering? So I guess, yeah. I mean, when I sort of said that it's not that the events of January 6th

are not in the rearview mirror at the beginning of the show. Like, I guess it's just another way to say that, that this is, we could be facing different iterations potentially, but more of what we saw on January 6th and leading up to it. So that's a downer. Leah, do you want to send us out on a high note? Yes. and leading up to it. So that's a downer. Leah, do you want to send us out on a high note? Yes, and that high note is a little spring break that Senator Ted Cruz took when he went to Cancun.

So some real investigative sleuthing on the internet discovered that Ted Cruz had departed for Cancun, Mexico sometime Thursday after Texas had just been pummeled by extreme winter storms. Millions are without power. People lack clean water. Pipes have burst. The state is under severe distress. There are emergency declarations. And in an initial statement, when this was reported, Cruz indicated he went because his daughters had asked him and, quote, wanting to be a good dad, he agreed to fly them down there. This seemed to somehow imply that he was only escorting them and would have been right back. But then shortly after that, People United Airlines snitched on him and said his original return trip was for the weekend.

He then had booked a flight on Friday, early Friday morning, after he started to catch flack for this. And then, bringing the real You Got Got energy, some of the people that Heidi Cruz, his wife, had been texting about the trip leaked the text to the press about how she had invited them to go with her and they were always going to return this weekend and they were going because it was, quote, breezing at their home. And just underscoring the appalling nature of it all, someone went to Ted Cruz's house, you know, to report on it and photograph as he went home and discovered their poodle snowflake had been stranded and left at home

during this trip. It's just, it's all too much. Let me say this in defense. It's not really, maybe it's kind of a defense. I totally understand the need to want to get away. My mother-in-law lives in Houston. This was horrifying. It was like incredibly cold. The power grid goes out, like, you know, everyone's worrying about frozen pipes. No one is equipped to deal with this because this never really happened. So, I mean, all of it is incredibly unexpected and people just don't know how to deal. Like if there was any way that we could have gotten her on a plane to Cancun, I think we might have just because it was so uncomfortable for her. She was like going to her car to charge her phone and warm up. I mean, it was just terrible. No one would have faulted you or her for doing that.

But she's not a public official who is responsible for constituent services. Is she the mayor of a sizable city? Is she the mayor of Houston? I know she's not. I can understand Heidi Cruz wanting to take her children because it was like, so I could see that. But yes. But also it's a pandemic. Like I'd like to go to Cancun. That too. That too. That too. The sort of like, hang dog, like, I'm busted look on his face throughout the duration of his first interview upon return was pretty gratifying, I have to say. Like, he knows he screwed up

badly. Will it mean anything politically? I don't know. But he gets it. The thing that surprised me was, did they not think they would be made at the airport? I mean, like, he's very recognizable. And yet. And there are so many pictures. I mean, so, like, lots of people photographed him. And not just paparazzi. I mean, they sent paparazzi down to Cancun,

but even before that, they were just sort of like, you know, individuals on cell phones. Yeah. Well, in any event, I hope the family got to enjoy some time in Cancun and got some, I mean, I'm so cold right now. Like I want to go to Cancun. I want to get out of this house. I'm so tired of the pandemic. We all want a change of scenery desperately, like desperately. Yeah, desperately. And yet, even though we're all tired of the pandemic, we're not going around and validating public health restrictions that are designed to keep us safe or flying to Cancun on a moment's notice.

So there you go. I will say I felt bad for Heidi Cruz that her friends sold her out like that. Like in the same way that I feel bad when Malia Obama is like caught dancing or smoking at Coachella and her friends sell pictures to the newspapers. I'm just like, girl, get you some better friends. The title a side chat going on too before these texts were leaked. And I also want to see that. I'm in a group chat with a bunch of women friends and like we have one friend who's she does the most. We love but she does the most and we do have a side chat right we love her wait are you talking about me no i'm just kidding it's with kate it's with kate melody i swear there is i knew you were talking about my kate talk you gave it away kate you gave

it away you gave it away i was just like broadly talking but your face gave it away. You gave it away. I was just like broadly talking, but your face gave it away. Like, yes, Leah, we talked. We did not. We promise we don't. We're like, why with all the bandanas? Why with all the Taylor Swift? The bandanas are awesome. And I will not hear otherwise.

They are. They are. And on this note, perhaps we should end. We should. Thank you all for listening, as always. Thank you to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music. And if you'd like to support the show, you can do so by subscribing at glow.fm forward

slash strict scrutiny or by giving yourself a glow up with some of our merchandise at our website.