A Fear of Too Much Justice | Crooked Media
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June 26, 2023
Strict Scrutiny
A Fear of Too Much Justice

In This Episode

Leah and Kate delve in to the latest chapter of Supreme Court justices going on secret fancy vacations with billionaires, this time starring Samuel Alito. And then it’s opinion-palooza, recapping the opinions we got last week while we wait with bated breath for the horrors the last week of the term will bring.

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Leah Litman [AD]


Show Intro Chief Justice, may it please the court. It’s an old joke, but when an argued, 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. Our findings.


Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your host today. I’m Kate Shaw.


Leah Litman And I’m Leah Litman. And as she warned you all last week, Melissa is out attending to some personal family business. But she will be back next week. And we are at the start of what is very likely the last week of the Supreme Court’s term, the last week of real work before the justices, or at least some of them head off on whatever jaunts their favorite billionaires have in store for them. And they saved most of the biggest opinions of the term for last, which means will likely be bringing you some emergency episodes later this week. But we did get some opinions last week and there’s a lot to talk about even without the terms very biggest cases. So here is the plan. We are going to start with the latest news on SCOTUS Billionaires Watch, which has a new villain this week, but a villain that will be very familiar to listeners of this show will then turn to recapping the Good, the Bad and the Ugly from the slew of opinions we got from the justices last week. But first up is court culture. And oh boy, do we have some court culture.


Kate Shaw We could not start anywhere. But with The Wall Street Journal. Prebuttal by one Sam Alito, he is the new villain of this news cycle, but not new to our listeners. We’re going to use I think we’re going to try unveiling some new nicknames as a result of the events of this week. But for those of you who missed it, Sam Alito wrote a Wall Street Journal op ed pre-boarding, a ProPublica story about him accepting and not disclosing private jet trips from a hedge fund billionaire who had, you guessed it, business before the court, and also getting some free lodging from conservative mega-donors along the way, all of which was arranged by Leonard Leo.


Leah Litman And you did hear that correctly. Like the messy bitch from New Jersey who loves the drama. He is The drama has really outdone himself this time. I think he’s basically become a full time content creator for the pod kid. I know you might not understand that word, but on all the reality television shows you don’t watch. That is the primary occupation of the reality TV contestants, content creators.


Kate Shaw Okay. So I you know, the context clues helped me understand the phrase you just said, But that’s actually a job that people like identify themselves as having.


Leah Litman It is their content creators. And apparently so, Sam.


Kate Shaw I love this concept for him and for us. So let’s set the scene a little bit. On Tuesday evening, the Wall Street Journal posted an op ed by Samuel Alito identified as and actually an associate justice of the Supreme Court that was precipitated by ProPublica emailing the justice some questions about a story they were planning to run, and specifically a story about a free private jet trip to Alaska. The justice received from the hedge fund billionaire whose case the justice subsequently heard. And the story was also about the awesome salmon fishing vacay they took together.


Leah Litman But the bottom line of the op ed is that Sam Alito would like you all to know that all of this is no big deal because, one, the personal jets would have been empty if Alito hadn’t taken it, which basically means it doesn’t count. And to the lodge that Alito stayed at for free hadn’t even been renovated. And while they may or may not have served wine, who can recall if they were served wine? It definitely did not taste like thousand dollar wine and he would fucking know, you pours.


Kate Shaw I just love that like I can’t commit to one argument. One is they didn’t serve wine and two, it wasn’t $1,000 wine. And I just. I can’t believe an editor, a spouse, no one in his orbit was like, Sam, I feel like you should probably commit to one of these two defenses. Either no wine or definitely not $1,000 wine. But he sort of hedges.


Leah Litman But I think this is the world that Sam Alito lives in where no one actually questions or criticizes him and tells him everything you’re doing is awesome. Right? Including this argument and the alternative. Maybe I wasn’t served wine if I was, it certainly wasn’t good enough to remember, which means it wasn’t $1,000 bottle. So instead of acting like a normal person and responding to the questions, you know that ProPublica sent him or having, let’s say, the Supreme Court’s Public Information Office respond, Alito decided to run off to the Wall Street Journal and preemptively post a response to ProPublica in the more ideologically friendly op ed pages of The Wall Street Journal, obviously showcasing the kind of evenhanded, impartial and neutral behavior we’ve come to expect from Sam.


Kate Shaw And just in terms of context, for Supreme Court justices running to the Wall Street Journal editorial page, I had somehow memory holed, although I know Leah, you had not that after Brett Kavanaugh’s literal temper tantrum in front of the Senate Judiciary Committee, The Wall Street Journal gave him space to write an op ed titled. And I went back and looked at this and I thought, this is like an onion hit. And not exactly the but the headline is. I am an independent, impartial judge. And in those paragraphs that they gave him, he concedes that quote, I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I said a few things I should not have said. But then he says, Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28 year legal career. Hard working, even keeled, open minded, independent, dedicated to the Constitution and the public good. And beer. He didn’t say that last part. That was me. But I just kind of can’t believe that there’s a standing open invitation to aggrieved conservative Supreme Court justices or nominees to just take as much space as they want in the Wall Street Journal. But evidently there is and Sam is in good, upstanding company on these pages. This is like the paywalled safe space conservative justices can run to if they want to do some damage control, slash speak to sympathetic audiences and not be challenged.


Leah Litman It’s like a Schrodinger’s cancellation, like they are so oppressed and criticized and silenced and aggrieved and canceled. They have an open invitation to write in the Wall Street Journal whenever they would like. Yeah. Yeah. And so, like bratty, Sam clearly thought he needed to set the record straight. So we are now going to treat you to Sam Alito. Sam splaining his way through ProPublica’s latest ethics bombshell. The bottom line is that all Supreme Court justices get one billionaire friend for free as a treat. So the ProPublica story opens with a photograph of Sam Alito, henceforth known maybe as Justice Samuel Alito.


Kate Shaw Sam Alito is good eye and sort of angling for Justice Salmon attack Alito. But we actually have like a bunch of nicknames on deck, which we’ll return to at the end of this discussion. But sorry. Go on.


Leah Litman Okay. So just a salmon Alito slash salmon ethic-alito is pictured on this fishing trip, photographed with a huge ass salmon as he is standing, grinning next to Paul Singer, who is also holding a big ass salmon and grinning. And the story informs us that Paul Singer gave Alito a free personal jet ride up to Alaska for this fishing trip. But fear not, Sam Alito says, the personal jets, it would have been unoccupied if he hadn’t taken it, and I quote, he allowed me to occupy what would have otherwise been an unoccupied seat on a private flight to Alaska. I take it he is telling us that all private jet seats matter and this one would have been empty had you not sat in it. It reminds me of the line from succession where Roman says Bullshit. No. First they came for the private jets and I said nothing. Additionally, as Sam Alito points out, if he hadn’t taken the free personal jets, he would have had to take a whole separate plane to Alaska. And we all know that Sam, as a passionate climate justice advocate, was unwilling to add to his carbon footprint like that.


Kate Shaw Doesn’t he try to suggest that it’s not only his radical environmentalism, but also his deep concern for the marshals who protect him, for whom it would have been much more difficult had he taken a separate flight than it was. So he’s largely privileging the interests of one Earth and two, his protective detail in the kind of travel choices that he makes will.


Leah Litman And three, the taxpayers rights as they don’t have to foot the bill. He can just like accept all these gifts from his private billionaire friends, and they will pay for all of his things.


Kate Shaw I see. I see. Okay. All right. This makes sense. Okay. So it turns out that Paul Singer who offered Justice Alito this private jet trip and went fishing with him at this lodge, had some business before the Supreme Court. So Singer has a hedge fund, Elliott Management, an arm of which NML Capital purchased a bunch of the Argentine government’s debt in the wake of the country’s financial crisis. And while a lot of creditors later settled with Argentina when it started to emerge from this crisis, Singer didn’t. Singer instead took Argentina to court to make them pay up in the billions with a B. So Singer’s company first asked the Supreme Court to intervene in his case in 2007. And this vacation we’re talking about was in 2008. Now, they didn’t get SCOTUS to take up the case in 2007. The company again asked in 2010, again unsuccessfully, before launching what ProPublica describes as an expansive public relations and lobbying campaign. Lo and behold, the court agreed to hear the case in 2014 and then ruled for Singer’s hedge fund by a 7 to 1 vote. Justice Sotomayor recused herself, probably because she’s ethical. Samuel Alito did not recuse himself from the case. And in the Wall Street Journal story, he wants you to know that he is not sorry. He is not owned, he is not mad, he was not wrong. And he is definitely not wrong or owned or mad about any of it.


Leah Litman Definitely not. And why did he not recuse, you ask? Well, first he says he didn’t know NML Capital was Singer’s company will come back. Back to that in a second and second because he says no reasonable person would question his impartiality in the case because all he did was take a seat on a private jet that would have been otherwise unoccupied and go hunting with the guy at a fishing lodge that served wine that tasted like it was less than $1,000 a bottle, and the lodge hadn’t even been renovated yet. And also he barely no singer. And it is not at all weird to take a vacation with someone you barely know. And obviously you would take wine over $1,000 and more than an unoccupied private jet seat to bribe him. You idiot. Pause. This op ed is probably now going to appear in dictionaries as an entry under the Streisand effect because it was hard to imagine like a better kind of, I don’t know, bat signal for the ProPublica story or a way of ginning up interest in it. Then the Sam Alito op ed because all.


Kate Shaw Of us read the op ed and waited like as the hours ticked by before the actual ProPublica story dropped just on the edges of our seats. And I’m sure people would have read the ProPublica reporting anyway, but this had to juiced the numbers and the general interest. So nicely done, Sam and your PR team. Back to Sam’s defense of his obliviousness about the fact that NML Capital was even Singer’s company. Okay, he says. How was he to know that an email Capital was Singer’s company? He writes in the op ed, I have voted on approximately 100,000 certiorari petitions. The vast majority received little personal attention from the justices because even a cursory examination reveals that they do not meet our requirements for review. Totally irrelevant because the case was granted for a full review by the court. The logic does not even a little bit apply. And once the case was granted, how did his chambers not take the step of running an ethics or conflict check to figure out whose hedge fund it was? Come on. I mean, as The New York Times reports, Mr. Singer’s connection to this case, which was captioned Republic of Argentina versus NML Capital, was widely reported a Forbes article covering the decision had the headline Supreme Court Hands Billionaire Paul Singer A Victory Over Argentina. An article in the New York Times noted that the parties to the case included a capital, an affiliate of Elliott Management, the hedge fund founded by Paul Singer. Now, I want to be honest, this is not my world at all. But we have heard from multiple people since this story broke that absolutely everyone who follows kind of hedge fund world knows that NML is synonymous with Paul Singer. And it sure seems like Alito would have known that. But his defense seems to be that he just accepts free private jet rides all the time from guys he doesn’t even know. And this is slightly and interestingly different from Clarence Thomas, his defense, which is that he only takes free private jet rides from close personal friends. Obviously, either one is fine, but we want to try to be really faithful to the specific argument made by each of these justices.


Leah Litman Yeah. I also just wonder, like why Sam Alito thinks that strangers are just offering him free personal jet rides. I mean, I personally have never experienced that luxury. People do not just


Kate Shaw And you are genuinely charming and fun. And, Sam Alito, do you think he thinks that’s why?


Leah Litman I mean, I am certainly curious. You know, I kind of wonder if he experienced this before he was a Supreme Court justice or if, you know, it dawned on him that there might be some causation slash correlation that once he became a Supreme Court justice, all of a sudden people wanted to fly him around on personal jets. But Alito continues, even had he known this was Paul Singer’s company, no one would question his impartiality in the case because and I will quote Alito here, quote, I cannot recall whether the group at the Lodge, about 20 people was served wine. But if there was wine, it was certainly not wine That costs $1,000, end quote. Basically, I know what thousand dollar wine tastes like and this wasn’t it. He continues, quote, Since my visit 15 years ago, the lodge has been sold and quote, I believe renovated. But an examination of the photos and information on the Lodges website shows that ProPublica’s portrayal is misleading and, quote, basically, he stayed at the Lodge before it was even nice, and in order to successfully bribe him, billionaires would have to put him up at better places. And these shithole rustic lodges that serve Alaskan king crab legs and Cobb filets. Because the ProPublica story itself provides additional details about this trip, noting that the group flew on one of the largest bush planes. I don’t even know what that is. I don’t know if billionaires offer flights on these things, too. But anyways, they flew on one of these Bush planes to a waterfall where bears snatch salmon from the water with their teeth. And at night the story continues. The lodges chefs serve multi-course meals of Alaskan king crab legs or Kobe filet, end quote. I hope the orcas know that. Sam is taking their fish.


Kate Shaw See, this is the kind of threats that Sam is always concerned about. He’s going to call you out in his next speech.


Leah Litman He’s going to call me bullying. This is basically the equivalent of a tank showing up at the Supreme Court. Yes.


Kate Shaw Your invitation to the Orca’s to take it out. Yeah.


Leah Litman Okay. Free Willy can hear me.


Kate Shaw Exactly. Okay, so a couple of more details from the story. One, Sam Alito is in the red jacket there. One lodge worker said as he narrated an amateur video of the justices on the water. And this one was fascinating. So the same worker then says, we take good care of him because he makes all the rules.


Leah Litman Someone seems to understand what’s going on here. So this whole trip was reportedly organized by Leonard Leo because, of course, it was a Leo invited singer and asked Singer if Alito could ride on the personal jet. I am still hoping there’s a pastoral painting of this trip somewhere.


Kate Shaw The photos are good, but they are not. We really need some oil paint, I think, to really take this to the next level.


Leah Litman Most definitely. And Leo’s involvement in this entire thing was apparently well understood because when Singer’s frozen salmon from the trip didn’t arrive in a timely fashion, he emailed Leo basically being like, Where’s my fucking frozen salmon bitch? And, you know, I think this entire scheme and Leo’s involvement really paints a particular picture about how this aspect of the Federalist Society works, creating this cozy network where justices are basically rewarded with billionaire benefactors and free stuff. Right? And that’s just a function that Leo performs.


Kate Shaw And there are a number of kind of funders of different legs of this trip, according to the ProPublica reporting. So we have Singer who’s Jet is the transportation or the facility we will get. We’ll get to that. But the lodging on the trip seems to have been provided by Robin or Rob Barclay, who is a conservative mega-donor. The piece reports that Barclay also provided Leo with one of these private planes to travel to business meetings with, according to a former pilot of Barclays. Barclay has bragged about being close friends with Thomas and flew out Scalia for some trips. And we have details in the same ProPublica piece about one of those trips. So this was a June 9th trip in which Barclays Group chartered a boat called the Happy Hooker for to tour Yakutat Bay. On the way over, Scalia and Berkeley evidently discussed whether Senate Republicans were then in a contentious fight over judicial confirmations, should abolish the filibuster to move forward, according to a person traveling with them.


Leah Litman The Happy Hooker four. That’s quite the boat. So as Kate suggested in his Wall Street Journal op ed, Justice Alito repeats the talking point that he didn’t have to disclose any of this because the ethics rules allow the justices to accept personal hospitality. And he says transportation is included in personal hospitality because personal hospitality includes access to facilities, and transportation is obviously a facility. And in demonstration of this powerful legal analysis, Alito says look at these dictionary definition of the word facility, which obviously covers transportation, except they don’t. So he quotes Random House, Webster’s Unabridged Dictionary, which defines facility as, quote, something designed, built, installed to serve a specific function, affording a convenience or a service, and then lists as an example of transportation facilities. But the word facilities that Alito is defining is from the filing instructions, not the statute itself, because the statute exempts only, quote, food, lodging or entertainment received as personal hospitality. Rick Hasen really goes to town on this reasoning over the Election Law blog. So he notes that the phrase facilities appears together with the terms on property or facilities and that transportation facilities. In the dictionary, definition, Alito quoted appears as an example together with educational facility or research facility, making pretty clear that the airplane isn’t the facility the airport is. But this is apparently what passes for legal analysis by one of the nine overlords who was deciding what rights we all have. Not totally surprising from the guy who said that waters don’t include wetlands because of puddles. Literally a line from Justice Leo’s opinion in Sackett is consider puddles. And of course in that opinion he said adjacent means abutting rather than adjacent. So to recap, textualism means facilities include transportation, including private jets. Waters do not include wetlands and adjacent means abutting berm.


Kate Shaw That’s textualism. There we are. I mean, look Leah, Sam feels under siege and he feels he has told us like the bar is not supporting him. So I am thinking maybe we make him some T-shirts. They will cost less than $25 each so he won’t have to disclose them. And we will produce a legal memo explaining the T-shirts, our facilities, and we will send it along with the T-shirts


Leah Litman They’re T-shirt facilities.


Kate Shaw But also the facilities aren’t the production facilities. The t-shirts themselves are the facilities. So, okay. So if we do this, what should the t-shirts say?


Leah Litman One should probably say “ProPublica ain’t got shit on me.” That’s one option. Another might be “I only take free pj trips when the seats are otherwise unoccupied”.


Kate Shaw I think those are both really good ideas. I think. I think maybe we’ll, you know, keep workshopping them and maybe send send some over to Sam. So that is all we have to report on this latest piece of bombshell reporting from the team over ProPublica that is clearly staying on these justices. We said this before. I’ll say it again. I am sure we have not heard the last of them. And I’m just I you know, I. These justices are clearly up to very dodgy things. And we’re going to learn more. Any final thoughts, Leah, before we move on?


Leah Litman You know, he still hasn’t filed his financial disclosure forms. You know, being a poster for The Wall Street Journal apparently takes time. But I think we should probably revisit The Wall Street Journal opinion pages, their relationship to the court, because some listeners might recall that before Politico published the leaked Dobbs draft opinion, The Wall Street Journal wrote a piece in their opinion pages predicting that the court had, after a conference, initially voted in favor of a54 decision overruling Roe. And they also predicted that the opinion would be written by Samuel Alito. They also expressed concern that the chief was trying to peel off one of the justices who voted to overrule Roe. Hmm. Very curious.


Kate Shaw These latest developments don’t shed any additional light on how big a Wall Street Journal.


Leah Litman Might have, some connections with some chambers to be able to level tables like that.


Kate Shaw Inside. I mean, we really at the time thought it really does seem like Alito is the source here. But to the extent that anyone harbored any doubt about that, I’m not sure that’s warranted at this point.


Leah Litman So The Wall Street Journal also in their kind of caption or preface to the Alito op ed, just took some totally gratuitous swipes at ProPublica, describing it as styling itself as an independent nonprofit newsroom that produces investigative journalism. And I just it really does not speak well of the Journal’s opinion pages.


Kate Shaw Look in the Mirror. Wall Street Journal. Yeah. Anyway, okay, before we leave the topic, we do need to take one more beat on Leonard Leo because he issued a truly epic statement in response to all of this. And Leo, do you want to just maybe read that last line?


Leah Litman Yes, because it appears right in the dictionary next to projection and I quote this recent rash of ProPublica stories questioning only the integrity of only conservative Supreme Court justices is bait for reeling in more dark money from woke billionaires who want to damage the Supreme Court and make it into one that will disregard the law by rubber stamping their disordered and unpopular cultural preferences. And quote, says Leonard Leo, the guy who literally hand-picked Supreme Court justices to disregard the law and impose their disordered and unpopular cultural preferences. And I just have to say that this is the kind of statement that definitely gives me faith that Leonard Leo would pick very neutral, impartial, nonpartisan and non-ideological justices and judges.


Kate Shaw And he said something earlier in his statement, sort of mocking the idea that any justice would be influenced in their substantive views by a junket like this. And we’re not suggesting that anyone on this trip or any of these trips, like engage in an explicit exchange of jet rides or salmon for votes. Like, definitely not. But to underscore again, and I’m not sure how causation runs here, but these guys love ruling including earlier this term in Simonelli and Percoco. Two cases that we’ve talked about that there is really nothing wrong even with paying large sums of money to government officials, as long as you stop short of actual quid pro quo bribery. And it is just convenient that the interpretation that they have adopted of all the laws is one that would absolve themselves of any wrongdoing. So do we need some new Sam Alito nicknames?


Leah Litman You know, I am still partial to Sam Alito, Justice Salmon, Alito. I like it. OP editoria-lito.


Kate Shaw That’s pretty.


Leah Litman Good. Alito. Right. Those are some other possibilities.


Kate Shaw And there’s that. There’s the unethical-ito or Salmon Unethical-ito, you know, which I still like. And then there’s a very long one. But I’m going to just, you know, try it out anyway. And this is a little bit of a riff on one of the sentences he had in the op ed. But this information definitely would not cause a reasonable person to believe I decide these cases in a way that is not impartial-ito.


Leah Litman I like it.


Kate Shaw What about just what about just impartial-ito? I suppose


Leah Litman not impartial-ito. Justice Not impartial-ito.


Kate Shaw Extremely impartial-ito. Okay. And then the last one would be that his new gig is as an opinion columnist for The Wall Street Journal-ito. Which I kind of like too.


Leah Litman I have to say, like I was basically just howling when I saw the Wall Street Journal op ed, like I was barking with laughter. To the point where my dog thought something was wrong with me. It was just out of this world.


Kate Shaw It just didn’t seem real. It’s a little bit like when I revisited the Kavanaugh op ed or like, This is clearly The Onion or like an Alexander Peter column. And no, it’s actually what they think is going to help their cause. I guess it’s filed.


Leah Litman Yeah. Alexandra at The Washington Post did have a column about this that she tweeted out under the headline, Let Everyone Sponsor a SCOTUS Justice. That column is genius. As is typical. It begins with a line quote, It is a truth universally acknowledged that an American billionaire in possession of sufficient fortune must be in want of a Supreme Court justice. It is one of her best pieces. It calls for people to be able to buy sponsorships on Justice’s robes, which I personally think would greatly enhance opinion announcements like we would all say. Writing for five justices, Justice Alito and Coke Industries conclude that the EPA can’t regulate wetlands because water isn’t always wet and puddles.


Kate Shaw And also consider puddles. Right.


Melissa Murray [AD]


Kate Shaw On to opinion recaps. Let’s do it.


Leah Litman Yes, we’re going to go long on one of them. An important habeas case and short on the others. Sorry. Like the court is just forcing our hand in its chaotic scheduling. Like we never know what they’re going to release and when, and this is kind of what happens.


Kate Shaw All right. So let’s start with the one we are going to spend some time on, the important habeas case, Jones versus Hendricks. So this is a 6-3 Justice Thomas opinion. And yes, it is the six conservatives with the three liberals in dissent and the six justice majority finds that this is like almost too surreal to actually seem true. But this isn’t just an accurate description of what the court decides. So basically, this majority finds that even if you have been convicted of conduct that a court later determines wasn’t a crime under the statute as properly construed, you have no recourse. Like literally if you’re convicted of something that isn’t an actual crime. Tough luck. It is illegal for the federal courts to fix it. I mean, just read a quote here and then maybe I’ll say like one more thing and then just pass them back to you, Leah, because this is habeas and it is very much your wheelhouse. But first, to quote Section 2255-H specifies the two limited conditions in which Congress has permitted federal prisoners to bring second or successive collateral attacks on their sentences. The inability of a prisoner with a statutory claim to satisfy those conditions does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all. So this is just like a TLDR is like tough luck. Justice is for suckers. I think that’s basically the bottom line of the case. And but this is, you know, again very much your world. You had a great piece, rage piece, I would even call it in Slate about the opinion. So can you break the case down for us?


Leah Litman Yes. So it is technical, but we’re going to try. So the case is about legally innocent people or as Justice Jackson alternatively describes them, statutorily innocent. So as Keith describes situations where courts messed up your case, and because the courts messed up, you were convicted of something that is not actually a crime because the courts messed up what the statute meant. Or maybe you were sentenced to more time in prison than the law allows. Again, because the courts screwed up what the statutes mean. And after your case, a court recognizes that they messed up what the statute means and some other case, and you therefore reasonably go back to court and ask them to fix their mistake. And the question here is, is it legal for the courts to do that, to fix their mistake, in your case, that resulted in you being wrongfully imprisoned or sentenced?


Kate Shaw Okay. So let’s give a brief recitation of the statutory scheme here, because I made reference to some of the statutes in the quote that I read. So people convicted in federal court can challenge their convictions or sentences after their appeals through what’s called a Section 2255 motion. This might be to raise a new legal claim or to rely on a new court decision or to rely on new evidence or raise a claim that couldn’t have been raised during trial or appeal, like ineffective assistance of counsel. That is, the lawyers who were representing you during the earlier proceedings and a statute called AEDPA the Antiterrorism and Effective Death Penalty Act, limits their ability to file multiple 2255 motions so you can file a second or successive motion only on the basis of certain new evidence and only on the basis of certain new rules of constitutional law. So that provision doesn’t authorize filings where what you want to do is to rely on a new decision of statutory law. So where a court hasn’t said the Constitution requires something but says what a statute means, then that might include a new decision that indicates that you were convicted of something that isn’t a crime or sentenced to more time in prison than the law imposes, because a court has subsequently correctly interpreted the statute under which you were convicted. That sometimes happens and there’s no obvious way under 2255 for you to bring a new motion under those circumstances.


Leah Litman And so traditionally, incarcerated persons relied on a provision known as the savings clause, and that provision allows people to file a federal habeas petition if Section 2255 authorizes them to apply for relief, but is inadequate to test their conviction or sentence, which it would be here, since it doesn’t actually allow them to assert their innocence because of some new statutory decision. So how does the majority reach the opposite conclusion? Aren’t they primarily rely on a weird negative inference that runs something like this? If Congress wanted to allow incarcerated persons to be able to assert their innocence, to challenge their convictions on the ground, that they’re legally innocent, it would have said so since it outlined other grounds to challenge their convictions. I might have thought that keeping innocent people in prison was, let’s say, a major question requiring a clear statement by Congress instead of a negative inference. But I guess that is just me.


Kate Shaw Justice Jackson really hammers this point in her dissent, saying a variety of things require a clear statement in the opposite direction. Right. Like requiring Congress to be perfectly clear, if a statute is to keep legally innocent people in jail. And she calls what the majority is offering is. In characterization of the law.


Leah Litman And just to give some examples of the constitutional principles that require, she says, Congress to clearly keep legally innocent people in jail. You know, the Eighth Amendment, which prohibits cruel and unusual punishment, a principle that the court doesn’t lightly conclude that Congress has eliminated the federal court’s jurisdiction, including over habeas cases. And the Thomas majority basically says, you know, the federal government, you know, this is the federal government arguing on behalf of the incarcerated people here. The federal government has this dumb theory that we shouldn’t restrict habeas rights for innocent people unless the statute is clear, but they’re idiots. And we only use that kind of hesitation in voting rights cases or cases about protecting the environment. Imprisoning innocent people is something we can do lightly.


Kate Shaw The dissonance between the kind of general presumptions about statutes and what Congress means between this case and those cases in other areas like environmental cases and voting rights cases is just so hard to swallow. So here the majority says, to permit individuals to file habeas petitions, raising arguments that Congress didn’t allow them to raise in successive 2255 motions would mess up the whole system, allow too many people to file too many claims, and this reasoning really calls to mind one of Justice William Brennan’s maybe most famous lines from McCluskey versus Kemp. And here’s what he says. Taken on its face, such reasoning and that’s the majority’s reasoning, seems to suggest a fear of too much justice. The Justice Jackson dissent, which we just mentioned, and the Joint Justice Kagan, Justice Sotomayor, dissent, really go to town on this, too.


Leah Litman Yeah. And this is what I think is a weird a textural aspect of the majority’s reasoning, because everybody agrees that the savings clause which predated Right. It preexisted section 2255 restrictions on second or successive petitions. Everybody agrees that the savings clause allowed people to file these claims, asserting their legal innocence, and then the majority basically says, well, adding in these totally other separate provisions, subsections somehow altered the meaning of the savings clause and whatever that is like it sure as fuck, not textualism because it’s not about the meaning of the language in the savings clause.


Kate Shaw They just I mean, if Congress had just thrown a facilities into the statute, I feel like things would have been just much clearer. But really it’s like it’s.


Leah Litman The basic innocent facilities. Innocence Facility is case. Let’s be fair.


Kate Shaw That’s right. I mean, so okay, so in addition to this inference, the majority relies on some pretty dubious and again, this is your world and not mine, Leah. But it seems to me ahistorical accounts of habeas as history. That habeas was all about jurisdiction and wasn’t really about cases where there was a criminal conviction. And the reality, I think, is just orders of magnitude more complicated than the majority suggests. So as Justice Jackson notes in dissent, citing our friend, Commander Professor Steve Vladeck and Lee Caskey, who’ve written an article called Habeas Myths Past and Present. But it’s actually a response to Leah’s Texas Law Review. Habeas Corpus. The history is far more complicated. Justice Jackson, we should say, also cited Leia’s 2018 Virginia law review piece Legal Innocence and Federal Habeas. And I think both the kind of implicit citation to your Texas piece through the flat of commercial citation and the exquisite citation to your Virginia piece are like basically the silver linings in this truly awful opinion.


Leah Litman I am currently wearing my Justice Jackson all rise pin because this was just an incredible dissent. So as Justice Jackson also noted, a bunch of sources, basically all of the pertinent sources were indicating that the majority should not reach this result, including the statutory history, its design, context and structure, which, as Justice Jackson describes, you know, the savings clause expressed a congressional intention to maintain an equivalence between what an incarcerated individual could claim before and after the limitations on second or successive petitions were adopted. And instead the majority does basically the opposite of what Congress set out to do. She also points to the case law proceeding at AEDPA’s enactment. We already mentioned the clear statement rules and constitutional concerns she identifies, and the majority responds. Basically, there are no constitutional concerns with imprisoning the innocent, to which Justice Jackson responds. I am also deeply troubled by the constitutional implications of the nothing to see here approach that the majority takes with respect to the incarceration of potential legal. In a sense. Alas, here Neil Gorsuch and the habeas trials have done it again. You know, it was Justice Gorsuch, his historical musings that put this historical theory of habeas into a majority opinion for the court for the first time, and the court has subsequently picked it up and ran with it.


Kate Shaw All of this I know sounds a little bit technical, but the implications are truly ghastly. So we’re going to read a bit more from some of the dissents. And once again, there were the two dissents, a joint one by Sotomayor and Kagan, and not like one authored and the other joined. This was without a single identified. Author. So they’re identified together as the author of the opinion. And that’s pretty unusual. I mean, then there’s a separate lone dissenter by Justice Jackson. Okay. So first from the joint dissent, quote, A prisoner who is actually innocent in prison for conduct that Congress did not criminalize is forever barred from raising that claim merely because he previously sought post-conviction relief. It does not matter that an intervening decision of this court confirms his innocence by challenging his conviction once before he forfeited his freedom.


Leah Litman Justice Jackson also says, quote, Apparently legally, innocent or not, Jones must just carry on in prison regardless.


Kate Shaw Also, Justice Jackson. Today’s ruling follows a recent series of troubling interpretations. All of these opinions have now collectively managed to transform a statute that Congress designed to provide for a rational and orderly process a federal post-conviction judicial review into an aimless and chaotic exercise in futility. It is quite clear that the court’s rulings in this area of the law reflect a general ethos that convicted prisoners should not be permitted to file 2255 motions or obtain post-conviction relief at all.


Leah Litman She’s got their number one closing thought. If you know, the court’s lack of concern for innocent individuals. Sounds familiar. You know, I wanted to remind listeners of a decision from the end of last term, Austin versus Ramirez, that involved the case of Barry Jones. In that case, the then Arizona attorney general had stood up in court and loudly proclaimed, quote, Innocence is not enough. And in shed a majority of the court, the same six justice majority in this case said it doesn’t matter if you didn’t commit the crime you were convicted of, you know, basically tough luck. You can’t get a federal court to hear evidence of your innocence, even if that evidence wasn’t introduced because the state appointed you an ineffective lawyer. This seems to basically be a core principle of this court. We don’t care whether you are innocent or not. Basically, they cannot be bothered with your problems, but everyone needs to be bothered with their problems, which are ProPublica’s negative press coverage of them. This opinion, like Shin, was authored by Justice Thomas, and I think the opinions are similar in other ways as well. Just as far as like their lack of serious engagement with the opposing arguments and evidence on the other side as far as like what the law actually means.


Leah Litman [AD]


Kate Shaw Okay, so we got a bunch of other opinions last week, so let’s maybe tick through them a little bit more quickly. And the next one we wanted to talk about was Arizona versus Navajo Nation, which was a54 opinion by Justice Kavanaugh siding with Arizona and against the Navajo Nation. So the case involved the nature and scope of the nation’s water rights under an 1868 treaty with the federal government, and in brief, the five member majority in the Justice Kavanaugh opinion held that while the treaty with the Navajo Nation implicitly reserved water rights to the nation, the treaty did not require the United States to take affirmative steps to actually provide for those rights or to facilitate their exercise.


Leah Litman To understand the stakes of the case. I just wanted to remind our listeners of really great reporting done by Lawrence Hurley for NBC and Matt Forde of The New Republic about the water crisis facing the nation. The nation’s brief had described how something like 30% of the nation’s members, or roughly 170,000 people, do not have access to running water, forcing them to find it at considerable cost and effort. And the brief continues. This contributed, they say, to higher coca death rates on the reservation.


Kate Shaw So the Kavanaugh opinion siding with the federal government is short, maybe like 13 pages. And that in and of itself I think is not problematic. But I did think it was pretty cursory considering how important the cases. So there’s huge impact for the 170,000 members of the Navajo Nation who live on this reservation. And also, I think more fundamentally for our understanding of the nature of the relationship between tribes and the federal government, which the opinion seems to say is a trust relationship. This is a sort of core feature of federal Indian law. But the opinion also seems to suggest like only to a point. And yet there was just this kind of pretty dismissive discussion of the key arguments brought by the nation in the case.


Leah Litman And Justice Gorsuch wrote a dissent for himself and the three Democratic appointees in the case. The question was really, since the treaty does reserve water rights, like what, if anything, does the United States have to do to make those rights a reality? And the Kavanaugh majority rejects the idea that the United States has to take affirmative steps to secure those rights. The Gorsuch dissent says that’s not really what the nation was asking for, he said. They just wanted the United States to identify what water rights it holds for them. And to the extent the United States had misappropriated the water then to formulate a plan to stop doing so. And the Gorsuch dissent is about two times as long as you know what you know, It was a pretty short Kavanaugh opinion. Another area of disagreement between the majority and the dissent was just about how to interpret treaties with tribes. So the Gorsuch dissent would have applied, among other things, the so-called Indian canon, to interpreting treaties that Canon counsels in favor of interpreting ambiguous text to favor tribes. Justice Gorsuch also takes a very pro context that is pro considering context approach to interpreting the language, saying basically you have to have a clear view of history and the purpose and context underlying all of these agreements in order to understand like how this case should be resolved.


Kate Shaw Yeah, that’s one of the things I find frustrating about the kind of shortness of the Kavanaugh opinion. Like there’s no context and there’s no history there. Just like we plunge right into the present dispute, brief mention of like a little bit of the language of this little 1848 history language of the 1868 statute. And like, boom, we’re kind of done. And the history as Gorsuch shows, I think is really, really significant. And the dissent in general, I think, continues. Gorsuch, is pattern of really remarkable writings in federal Indian law cases. So this is the closing to his dissent. He writes, If there’s any silver lining here, it may be this as they did at Bosque Redondo. They must they, meaning the Navajo Nation, must again fight for themselves to secure their homeland. And all that must necessarily come with it. Perhaps here, as there are some measure of justice will prevail in the end.


Leah Litman This decision also continues. Another pattern we discussed on the episode with Rebecca Nagle about the ICWA Indian Child Welfare Act decision, and that is the wild swings back and forth on federal Indian law we have seen on this court and may continue to see you know, you think back to McGirt versus Oklahoma, you know, finally enforcing treaties with tribes and recognizing that reservations remain. From there. You had Castro who wiretapped versus Oklahoma suddenly saying actually states do have authority over crimes involving native people on native lands, despite what John Marshall may have said to the contrary. And then you had the equa opinion, right, reaffirming congressional power and state’s lack of authority over Native American affairs and relationships with tribes and nations. And now this. So really unpredictable here. Justice Thomas wrote a concurrence in which he basically said, Let’s blow up all the federal Indian law and say that the United States does not have a trust relationship with tribes and that there is no such thing as the Indian canon.


Kate Shaw Fortunately, at the moment he’s just writing for himself. But we have seen Thomas positions sort of migrate to begin to attract more support in the court. I mean, Gorsuch, I think, is an important bulwark against that. But, you know, you could be able to get to five on some questions without Gorsuch. And so I do think that’s that was a very alarming concurrence to my mind. On two other cases we are not really going to cover, but we’ll just briefly mention the first was Pujan versus Garland A. Six three opinion holding that offenses quote relating to obstruction of justice unquote can occur even if there isn’t a pending judicial proceeding or investigation that is being obstructed and that noncitizens can be removed when they’re convicted of those crimes. So this is another Kavanaugh opinion, Gorsuch dissent with Justice Kagan and Justice Sotomayor. Slightly odd line up because you had Justice Jackson actually on the other, you know, with the majority on the other side from Gorsuch and the other two Democratic appointees. And Jackson wrote a short solo concurrence in which, you know, she basically repeated the point. This is, you know, something she has returned to again and again, that really what mattered here was what Congress intended or wanted with respect to this statute. And she just saw a lot of evidence that the majority’s reading of the statute and evidence, not just in the words of the statute, but contextual and other evidence that the majority’s reading is the one that Congress wanted. And so that’s how she voted.


Leah Litman One other quick note of an opinion is Ghazarian versus me. Again, that was a63 opinion on when plaintiffs could file civil RICO cases. RICO just refers to the Racketeer Influenced and Corrupt Organization Act, and it’s about when plaintiffs can file civil RICO cases based on a domestic injury. Justice Sotomayor wrote for a majority that a plaintiff establishes a domestic injury where the circumstances surrounding the injury sufficiently ground the injury in the United States. Justice Alito dissented together with Justice Thomas and Justice Gorsuch. Okay. So a few more opinions We are also going to describe quickly, but in a bit more depth than we did those two.


Kate Shaw First is United States versus Texas, which is the challenge to President Biden’s immigration enforcement guidelines, which basically give immigration officers guidance on how to prioritize immigration arrests. And that guidance suggests primarily focusing on individuals who are dangerous or who came to the United States recently, as opposed to have been here for quite some time.


Leah Litman Texas and Louisiana sued to challenge the enforcement guidelines because they don’t believe that Democratic presidents are allowed to make immigration policy. Only Texas and district courts in Texas and the Fifth Circuit can.


Kate Shaw Yeah, that is obviously what the separation of powers means, Leo. Or maybe that’s federalism. I forget both. I think that’s both.


Leah Litman Constitutionalism. Constitutionalism. Okay. So the theory of injury in this case was the state’s outlandish claim that these immigration enforcement priorities would somehow affect immigration and that altering immigration would affect the states. So eight justices concluded that the states did not have standing. And just to refresh listeners recollection. Standing requires plaintiffs to show that they have been or will be injured that is harmed that the injury was caused by what it is they are challenging and that a judicial decision would fix their injury. So any guesses as to which justice thinks that speculative claims by Republican led states about too much immigration create an injury that allows district courts in Texas to order Democratic presidents to enforce immigration law. Probably shouldn’t have taken you that long.


Kate Shaw So I was literally I was I was I was looking for a sushi joke of some sort. And it was just I was it was slow to come to the labs. But but but our favorite fishermen. Sam But here it’s it’s not he’s not, it’s not like salmon unethical-ito or Salmon not impartial-ito but rather Sam Xenophol-ito.


Leah Litman Well it might be Sam Not impartial-ITO right in immigration cases, right?


Kate Shaw It’s a different kind of


Leah Litman Sure. Yeah.


Kate Shaw Impartial-ito but yes, impartial-ito, maybe. Xenophol-ito Definitely. Yeah, it was him


Leah Litman For sure. But he had to file a dissent because if no one filed it, then the space would remain empty. So he had no choice but to fill it.


Kate Shaw For the taxpayers.


Leah Litman And the earth.


Kate Shaw And the Earth. The Earth wanted him to file this dissent as well. So the principle majority opinion was by Justice Kavanaugh. Joining him in full were the chief and the three Democratic appointees. They all concluded that there was no standing because there was not a historical tradition of courts being able to order presidents to take enforcement actions in immigration proceedings, which seems almost too obvious to require saying. And yet so. But they’d just basically say this isn’t the kind of case federal courts have traditionally heard, and the states here lack a judicially cognizable interest so great that this insane suit goes away and great that it goes away on standing grounds. I didn’t love that. We now get kind of history and traditions stuffed in our faces, not just when it comes to our substantive rights, but also now in the standing analysis. I mean, there’s lots of like lines from earlier cases that reference tradition, but there definitely is not a single standing case that seems so fixated on history and tradition as this one. So here we are.


Leah Litman Joy. So the three other Republican appointees wrote separately, Justice Gorsuch had a concurrence agreeing there was no standing that was joined by Justice Thomas and Justice Barrett. And these three took the position that the relevant federal laws here did not permit the remedy that the district court had ordered, setting aside the guidelines and ordering enforcement of certain provisions. So the concurrence relies on a provision. Of immigration law that basically limits the extent to which trial courts can issue injunctions, you know, regarding provisions of immigration law. But then it also gestures toward a provision of the Administrative Procedure Act that, you know, has been relevant in several cases, because that’s a provision that allows courts to set aside unlawful agency actions. And some courts have relied on that provision to effectively order nationwide injunctions. And the concurrence says, we’re not totally sure. This provision authorized the remedy, even assuming that federal immigration law didn’t prohibit it. And if that’s so, then district courts would lack the authority to do things under the APA that amount to nationwide injunctions. And they that is the concurrence therefore conclude that whatever the injury is, a federal court couldn’t fix it because it’s not addressable, given that the Federal Court couldn’t order this remedy here.


Kate Shaw Yeah, this is a really interesting part of the discussion. I don’t think the concurrence quite says like definitively that the APA doesn’t allow courts to set aside agency action, but they they’re clearly very open to it. That’s not news. They have been signaling that in their questions, in oral arguments and Gorsuch in at least one separate writing for some time. But there’s this interesting invitation to lower courts to help them. They Gorsuch writes. The questions here are serious ones. And given the volume of litigation under the APA, this court will have to address them sooner or later. Until then, we would greatly benefit from the considered views of our lower court colleagues. I just I feel like the Fifth Circuit does not need any more encouragement. I mean, no, that’s I think on the other hand here, I mean, if if what he’s asking for is less intervention or courts taking a more skeptical view of their own ability to set aside agency action, I suppose that actually could redound to kind of the benefit of administration policies. But I’m sure the Fifth Circuit would find some way to screw this up. But it is interestingly, none of the justices who are formally on the D.C. Circuit who were very defensive when the suggestion that, you know, the APA provision that has long been read to allow courts to set aside agency action and has resulted in a lot of these nationwide injunctions, it might not mean well, lower courts have long understood it to mean. So we may see, you know, this clash come to the fore in an opinion, I think in the relatively kind of near future.


Leah Litman Yeah, Thomas was on the D.C. circuit, but he was not part of the D.C. Circuit Mafia. That. That’s right. You know, defended the D.C. Circuit practice during the oral arguments where this came up. That’s right. While Gorsuch says this issue is worth a closer look, you know, he then does cite all of this material raising constitutional questions about nationwide injunctions and says there are many reasons to think that the Administrative Procedure Act is a set aside to mean disregard rather than vacate. I think it’s like a pretty strong nod to where these justices are on the issue.


Kate Shaw Yeah, I think that’s right. So Barrett concurs. Separately, she’s joined by Gorsuch, and she says she doesn’t think the majority’s right, that non-prosecution or non-enforcement of a law can never be a judicially cognizable injury, or that there could never be a case where a party has a judicially cognizable interest in the enforcement of federal law.


Leah Litman I have to say, like I am not sure that a fight between her and Justice Kavanaugh is a fair fight. You know, I think she has some like pretty compelling rejoinder as to what the majority says, basically saying they’re relying on the case’s, quote, bonus discussions in order to announce a general rule about standing. She also challenges that the states here are even seeking prosecution, that is deportation or removal rather than detention. But the longest opinion in this case came from the dissent, Sam Alito, which is almost two times as long as any other opinion and more than two times as long as the majority in this dissent. He also attempts a read on Solicitor General Prelogar And again, I just have to ask like, dude, are you insane? So like, he has this big lead up where he says the Solicitor General is asked whether it is the position of the United States that the Constitution does not allow any party to challenge a decisions not to enforce laws he does not like. You know, would the Constitution bar an injured party from bringing suit? She responded, That’s correct under this court’s precedent. But the framers intended political checks in that circumstance. It’s just like, you know.


Kate Shaw It didn’t land at all. No


Leah Litman No!


Kate Shaw It’s not doing the work you think it’s doing it. Nope, no. But he really, like, has it out for her. It’s clear in kind of every oral argument.


Leah Litman She triggers him.


Kate Shaw She really does trigger him. She’s a powerful, brilliant lady


Leah Litman Right


Kate Shaw And she has the right answers and he hates that. It’s clear. He also does helpfully say, I would be less troubled than I am today if Justice Gorsuch’s concurrence, had commanded a majority. So I don’t know. I guess I guess he just wants


Leah Litman It’s just weird.


Kate Shaw It is weird. He’s like, I don’t know what bad blood there is between him and Kavanaugh, but he’s somehow like, trying to forge some Gorsuch alliance. And I just it’s it’s a weird line.


Leah Litman He’s like, hate ranking the different opinions of his burn book. And that’s how it came out.


Kate Shaw You can do that, but we don’t need to know.


Leah Litman Exactly. Exactly. Well, alternatively, he could have written to The Wall Street Journal, but maybe they just weren’t interested in that particular piece. So, you know, he also, in this dissent cited a bunch of law review articles in a footnote. The articles had argued that the deferred action. For Childhood Arrivals program was unlawful. And the dissent is kind of a long rant about how presidents cannot decline to enforce federal statutes. Which, of course reminds me of the time that Sam Alito said that a federal court could declare mifepristone the medication abortion drug, an unauthorized unapproved drug, because that would be no big deal, because, of course, the FDA, the Food and Drug Administration, could merely choose not to enforce federal law against distributors. Wink.


Kate Shaw Principles all the way up, all the way down. It’s just


Leah Litman No shame.


Kate Shaw It’s just pure principle with him, Leah. So this ended up being another case like Allen versus Milligan, the Voting Rights Act case, where the court’s shadow docket order slash activity did not predict the eventual decision in the case. So in the Voting Rights Act case, the court seemed to side against the lower court, stayed its order, declaring the map unlawful, but then ultimately came out the other way. So it basically like froze it, put into place a status quo that was then not consistent with the merits result that it reached, like when it had a chance to actually consider the Voting Rights Act. In that case here, the court left the nationwide injunction against these enforcement guidelines in place, so did not allow the Biden administration to actually enforce its immigration priorities for, I don’t know, over a year, maybe up to two years. I don’t remember the exact timing, but for an extended period. And then here, eight one says, like the states had no authority to be here in the first place. Like, do you think this will cause them to actually do a little soul searching about what the fuck they doing in the shadow docket?


Leah Litman No, of course not.


Kate Shaw No, of course not.


Leah Litman No, no. Yeah, I do not think so.


Kate Shaw Nope.


Leah Litman So another opinion we got is United States versus Hanson. This ended up being a 7-2 opinion by Justice Barrett, where the court upheld a federal immigration statute against a challenge that the law was overbroad in violation of the First Amendment. The statute is the one that prohibits encouraging or inducing unlawful immigration. And the argument which had succeeded in the Court of Appeals was that the statute criminalized immigration advocacy and other forms of protected speech. The court here reversed that decision upholding the statute, but said the provision, properly understood is narrow enough such that it only forbids the intentional solicitation or facilitation of certain unlawful acts. And so therefore, there is no First Amendment problem.


Kate Shaw And listeners might recall from when we previewed the case, there was a lot of concern among advocacy groups and state and local governments about this case and the opinion through this very narrow construction that it adopts tries to assuage those concerns by basically saying the statute doesn’t reach some of the kinds of speech and conduct that were discussed at the oral argument. And the opinion sort of says things like the author of an op ed criticizing the immigration system or a minister who welcomes undocumented people into the congregation and expresses the community’s love and support. Or a government official who instructs undocumented members of the community to shelter in place during a natural disaster. So on. Barrett’s telling None of these examples are solicitation or facilitation, which includes the intent to bring about a specific result. And so they would not fall within the reach of the statute.


Leah Litman And Justice Jackson, joined by Justice Sotomayor, dissented, saying that the majority was basically rewriting the statute in order to uphold it and disagreed that they could do so fairly here.


Kate Shaw Okay. Couple more cases to briefly cover. First, Coinbase, which was a short 5-4 opinion holding that when there is an interlocutory appeal, which just means an appeal before a case is totally over. And that appeal is about whether a case should be in arbitration rather than in federal court. The district court should issue a stay, which is basically, you know, a pause. And this was an opinion written by Justice Kavanaugh.


Leah Litman Justice Jackson had the dissent joined by the Democratic appointees, as well as Justice Thomas, who has somewhat idiosyncratic views about the federal law on arbitration, the Federal Arbitration Act, and dangle the first part of her dissent, which is the part that Justice Thomas did not join, is just full of zingers. So she writes, quote, The majority opinion waves away these mandatory general state provisions by jerry rigging explanations for why Congress mandated those days expressly without doing so. She continues, quote, Given all of this, it is no surprise that Congress’s enactments barely figure into the majority opinion. The mandatory general stay rule is so untethered from Section 16 that the statutory tax has no role in the court’s reasoning.


Kate Shaw She also cites I think Thomas joins this part. She also cites, if you give a mouse a cookie, which is an excellent book and way better than its many sequels, like If you give a Pig a Party and Cat, a cupcake and moose a muffin, which really go downhill.


Leah Litman I love it. The final opinion we got I do not love and we’ll spend a little bit of time here and it is Salmiya versus United States and it is a confrontation clause case about defendant’s right to confront the witnesses. Against them. This is a 6-3 Thomas opinion that, in my view, is just a disaster like disaster in its consequences, disaster in its coherence. It adapts effectively a loophole or end run around the Supreme Court’s prior confrontation class opinions that had protected confrontation rights by limiting the government’s ability to introduce into evidence, even redacted confessions of co-defendants who do not testify. Because if the codefendant doesn’t testify, the other defendant can’t cross-examine them. So I’m just going to explain those terms for a second because they might be a little bit hard to follow. So these are circumstances where you are trying to defendants are multiple defendants, co-defendants at the same trial, but one of the defendants chooses not to testify and that defendant also happened to confess. And so the government wants to introduce into evidence that confession. And it is a trial where all of these people are sitting at the table. And so if you introduce the confession, the defendant doesn’t have the opportunity to cross-examine the person who made that confession if they choose not to testify. And that would seem to be in violation of the defendant’s confrontation clause rights. So an earlier Supreme Court case known as Bruton had said that the government cannot introduce confessions that name one defendant if the confessing defendant doesn’t testify. And that includes situations where a court tells the jury to ignore the confession. In the case of the defendant who didn’t actually confess because, you know, the confessions are just so damning that even if you give the jury a limiting instruction, it’s just not going to work. And then subsequently, in another case, Gray, the Supreme Court had said the government also just can’t slap a blank space over the name of the defendant to introduce the confession of the non testifying codefendant, because, again, it would just be so obvious who the redaction was referring to. Okay. So in this six three case, there is a Kagan dissent for the three Democratic appointees that sets up the issue so well and in the same way she did during the oral argument in the case that we’re just going to play that clip and it will kind of give you a gist of what the issue is and what the court did and why It makes no sense here.


Clip May I give you a hypothetical? So so John and Mary go out and they rob Bill and they’re found out and they’re put on trial and they’re put on trial together. And John has confessed. He said, let’s say he said, Mary and I went out and robbed Bill. Now, that’s obviously inadmissible under Bruton, correct? Correct. And then suppose instead there is something that says redacted, and I went out and robbed Bill. That’s obviously admissible under Gregg in an international under Gregg. So but it’s neither of those two things. Instead, the confession says she and I went out and robbed Bill or it says the woman and I went out and robbed bill. What do we do with that? I mean, so you’re saying that. Well, you know, look, I mean, the court could try to do something about that suggests what the issue is, right? Is that in in in the hypothetical I gave you and it’s a stylized one, if for sure it is, but it’s just as good to say the woman and I went out and robbed Bill as it is to say, Mary, the person sitting on my left went out and robbed Bill in that in that case, right. It does the same thing. It identifies the person.


Leah Litman So in this 6-3 opinion by Justice Thomas, the court said the government can do that. That is, they can admit a confession that says effectively she and I robbed the bank or they can admit a redacted confession like that that maybe provides some details about the person named in the confession who’s redacted that pretty clearly identifies the codefendant like here. The fact that the person described in the confession had lived with the non testifying codefendant. Right. It pretty clearly indicated them. And this ruling effectively guts the Supreme Court’s prior case in Bruton because if police prosecutors can replace a co-defendants name and a confession with a phrase like someone else or a woman, you know, the court is saying that doesn’t directly implicate the other defendant. So there’s no Sixth Amendment violation, even though the government couldn’t just put a stamp or a redaction over the defendant’s name. And it doesn’t matter like how many other defendants are sitting at the co-defendants table. So that is what the court did here.


Kate Shaw And as Justice Kagan writes, So how does the majority reach a contrary result? The majority distorts the distinction between directly implicating and indirectly. Implicating beyond recognition when applying it to the facts of this case. In one blink and you miss a paragraph of analysis, the majority holds that the confession does not directly implicate some effort to reasons. It was redacted to avoid naming Samia, and the redaction was not akin to an obvious blank or the word deleted. But she notes that this court has already made clear that the first fact is not dispositive since a confession, redacted with a blank space, also avoids naming the defendant. Yet Gray held that impermissible. So that leaves the fact that the placeholder used e.g. the other person was neither a blank space nor the word deleted. But that distinction makes nonsense of the rule. As the John and Mary examples make clear a confession that swaps in a phrase like the other person for a defendant’s name may incriminate just as powerfully as one that swaps in a blank space.


Leah Litman And of course, I have to say I’ve got a blank space baby, and I’ll just write in the other person and eviscerate your confrontation clause rights in the process.


Kate Shaw Don’t. Do you think this was a subtle Taylor reference?


Leah Litman I mean, you know, I am obviously always going to think that things are subtle Taylor references. So I’m inclined to say yes. P.S. Taylor If you’re listening, I would like you to repeat Hits Different at the Cincinnati show on June 30th and Supreme Court. You need to finish up your term well before then, because I am going to the concert then and you can’t fucking make me miss it. So just a side note to everybody involved here.


Kate Shaw Leah deserves both of these things. Please, please. I want to help you manifest them. I want them so badly for you.


Leah Litman Trying so hard. The end of the Kagan to send in Samir touches on a theme that I think is worth emphasizing. So she writes, quote, And so one might wonder, after reading today’s decision whether Bruton is the next president on this court’s chopping block. The one reason it may not be is that there is now no need for a formal overruling, end quote.


Kate Shaw And Justice Jackson also dissents writing that the majority’s approach inverts the constitutional principles that govern this case. So it’s been a mixed bag of decisions the last two weeks. But one thing that has not been a mixed bag is just how amazing the emergence of Justice Jackson’s voice in opinions is. Like we’ve loved watching her emerge from the bench like as a questioner, and she’s phenomenal. But it is just like seeing her in dissent in concurrences in the majority. She’s like an incredible writer and thinker, and I’m loving that part of this term, even if not every other part of this term.


Leah Litman Here, here.


Kate Shaw All right. We’ll leave it there and we’ll be back with probably a few emergency episodes to drop this week. So refresh your feed regularly. Strict Scrutiny is a Crooked media production hosted and executive produced by Leah Litman, Melissa Murray, and me. Kate Shaw. Produced and edited by Melody Rowell, Ashley Mizuho is our associate producer. Audio support from Kyle Seglin and Veronica Simonetti. Music by Eddie Cooper. Production support from Michael Martinez, Leo Duran and Ari Schwartz. And digital support from Amelia Montooth.