Affirmative Action Reaction | Crooked Media
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November 07, 2022
Strict Scrutiny
Affirmative Action Reaction

In This Episode

Leah, Kate, and Melissa recap the many, many hours of oral arguments in the affirmative action cases SCOTUS heard last week.






Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but, when a argued man, man argues against two beautiful ladies like this. They’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.


Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court’s efforts to dismantle any potential we have for a multiracial democracy and the legal culture that surrounds it where your hosts. I’m Melissa Murray.


Kate Shaw I’m Kate Shaw.


Leah Litman And I’m Leah Litman. And today we have a jam packed episode because with so many big cases the court heard last week and so many cases the court will hear this week, it’s going to be a little bit light on court culture, and we’re really mainly going to do recaps of last week’s cases and see if the upcoming cases, for one, will be recapping them in the next episode. So let’s get right into the recaps.


Kate Shaw Okay. So first, of course, are the two genuinely terrifying cases the court heard on Halloween to open. The sitting students prepare admissions versus Harvard, and students prepare admissions versus USC. So these are both challenges to affirmative action programs in higher education. The challengers argue that the school’s consideration of race as part of a holistic review of applicants that seeks to build a diverse student body, constitutes unlawful discrimination on the basis of race under both the Equal Protection Clause of the 14th Amendment, which applies to public universities, and also Title six of the Civil Rights Act, which applies to all universities that accept federal funds like Harvard.


Melissa Murray As we’ve explained on some of our earlier episodes, the court has repeatedly affirmed the constitutionality and lawfulness of affirmative action and race conscious admissions over the last 20 years, including most recently in 2016 and Fisher versus the University of Texas and before that in 2003 in Grutter versus Bollinger, a challenge to the University of Michigan Law School’s admissions policy. But now starry decisis is actually scary decisis. That is because the court obviously wanted to hear these on Halloween so that they could dismantle precedent in the spookiest fashion imaginable. You kidder’s you you you pranksters.


Leah Litman So we’ll get into the details of the argument. But just as a 10,000 foot overview the arguments had a real everybody knows were going to overrule Grutter and be in a post affirmative action world flavor to them. A lot of the justices energy seemed to be trained on answering what will universities be able to do to assemble diverse student bodies after the court overrules Grutter? But overruling Grutter just seemed to be a foregone conclusion.


Melissa Murray And with that foregone conclusion established right out of the gate, Justices Sotomayor, Kagan and Jackson are hobbled but indefatigable minority box, the lawyer for Students for Fair Admissions into conceding all of the ways that universities can actually consider race in admissions after the court overrules Gwerder.


Kate Shaw So these justices led the lawyer for Students for Fair Admissions to state something like the following position. You cannot have applicants check a box that indicates their race, but you can have applicants write essays about their family histories, about their own history, even about how race influenced or affected them or their family, like an experiential component of race. So it appeared that the Students for Fair Admissions lawyer conceded that this would be constitutional.


Melissa Murray But then he kind of took it back a little. So there were some very telling statements where it’s suggested that Students for Fair Admissions don’t necessarily think that all experiences should be weighed equally in the admissions protocol. So, for example, there’s one very telling exchange with coach slash Justice Kavanaugh where the coach asked, could a college give a plus to the descendants of slaves? Would that actually be race neutral? Here’s Mr. Strawbridge. His response?


Clip I think descendants of slaves, it’s a very difficult question because it’s so it’s so highly correlated with race in the history of our country. I’m not sure that any colleges proposed that kind of a preference. It would. I know we have to think forward about what will happen if you prevail in this case, and that seems a potential. So I’m curious about your answer to that question. My my instinct standing here is if that were the only basis, then that that that very quickly starts to look like just a pure proxy for race. It would obviously depend on the actual program as in as it was implemented.


Melissa Murray Wow. Exactly, sir. It is so fucking weird that slavery is so highly correlated with race in the history of our country. Wow.


Leah Litman I mean,.


Melissa Murray Wow.


Leah Litman This to me, this is one of the clips that has been replaying in my mind. It is almost like a parody and an insane version of a colorblind theory, like the idea that because slavery is about race or race, discrimination is about race means that universities, employers, public institutions cannot acknowledge slavery and race discrimination because they’re about race like the circularity. The insanity of it.


Melissa Murray Totally tautological. It’s totally tautological.


Leah Litman It is.


Leah Litman And stupid. And stupid. Like, let’s just be honest.


Leah Litman This was a.


Melissa Murray It’s anti black and it’s pro stupid.


Leah Litman We will get into the different shades of anti-blackness, like throughout the oral argument about.


Its a spectrum. Its a spectrum.


Leah Litman Devaluing black history, black experience in different manifestations. But this was one example of it.


Melissa Murray Sensing that allowing individuals to talk about their experiences is part of the admissions calculus would not further his desired project of keeping minorities in a box. Sam Alito attempted to step in with this microaggression, but happily, our girl good sister, Elena Kagan, was not having it. So let’s listen in.


Clip Mr. Strawbridge, let me give you a hypothetical along the lines of some of what you’ve been questioned about already. Suppose that a student is an immigrant from Africa and moves to a rural area in western North Carolina where the population is overwhelmingly white and the student in an essay doesn’t say this. I was subjected to any kind of overt discrimination, but I did have to deal with huge cultural differences. I had to find a way of relating to my classmates who came from very different backgrounds. Would that be permissible? I think that that would generally be permissible because the preference in that case is not being based upon the race, but upon the cultural experiences or the ability to adapt or the impact to encounter a new language in a new in a new environment. The race is part of the culture, and the culture is part of the race, isn’t it? I mean, that’s slicing the baloney awfully thin.


Kate Shaw I mean. The gall to suggest, like we are going to police because we think the Constitution is somehow draws a line that permits certain kinds of stories and doesn’t permit others, or that just there is a world in which race can be cleanly severed from culture and experience. And history is just truly shocking to me, even as we continue to feel.


Melissa Murray Is it? Is it truly shocking to you?


Kate Shaw Like we are beyond the capacity to feel shocked. I remain capable of feeling shock. Maybe this is my.


Melissa Murray No, no, no. If we had taken bets on who would offer the rural African hypothetical slash microaggression. I think we all would have said our boy Sam Alito.


Kate Shaw Clearly Sam Alito.


Melissa Murray The progenitor of the real African hypothetical. This is another one that I was like, for serious?Really?


Leah Litman But but. But, you know, seriously, like, credit to Elena Kagan for being like, I’m sorry, sir, what the fuck did you just say? Like, it is sometimes hard to in the moment when someone says something that galling and illiterate to come up with something to say. And I guess maybe working with him for like the last decade has given her some experience with this. But. Wow.


Melissa Murray This is the moment where I really wanted black Twitter and law Twitter to come together in a kind of Voltron style amalgam and like, like black Twitter would have dragged him for filth for this. I really wish they’d been there.


Kate Shaw I did not see this clip really circulating.


Melissa Murray It was wild. Like. You mean. Genuinely. Like. Like. It’s obviously culture. Like, the disorientation is cultural. Has nothing to do with race.


Leah Litman I Sam Alito, the expert on race, law and culture, can tell you.


Melissa Murray Another question that came up about a post affirmative action world was If affirmative action falls, what else might similarly be dismantled? And Justice Barrett seemed particularly concerned with the prospect of affinity groups like Balsa, the Black Law Students Association, or alternatively, affinity housing. And she did underscore she was principally concerned with affinity housing. And so this I mean, her concern for it was that like she thought it was impermissible or she was just questioning whether this would be the next challenge. I didn’t know, but I definitely got the sense that Mason Frazee wired Harambee House Tire. Can we also take a beat for all of the people who were suggesting somehow that she might be more open to affirmative action because she is the mother of adopted black children? Or that Brett Kavanaugh might be more receptive to pro affirmative action arguments because he’s hired a lot of diverse clerks. I don’t know that we saw any kind of concession on this. I mean, I don’t know that they necessarily signed up for the Alito Thomas project, but they did seem skeptical.


Kate Shaw Definitely. Although I do think Barrett was sort of a little hard to read kind of throughout. I definitely don’t think there’s any reason to believe she crosses over, but I think she wasn’t really showing her hand.


Melissa Murray I mean, I think if you’re talking about affinity housing.


Kate Shaw But but but it is possible. Yes, of course. You’re already in a post greeter world, no question. But at least there, I think, is the idea that it is pretty clear where Sam Alito stands on her on the house. I think that’s all we know. And. I think she to be not invited to play.


Leah Litman This gets back to something, Melissa, that you have written about, which is kind of the selective accusations and invocations of identity politics and how the Republican appointed justices often leverage something that looks, sounds, walks, talks an awful lot like identity politics to insulate themselves from accusations that they would revisit affirmative action or that they would overrule Roe versus Wade by saying, I’ve hired, you know, the all female class of law clerks, or I have hired a diverse slate of clerks. And the focus on what comes after overruling Grutter does not imply that the Democratic appointed justices were not resisting the end of affirmative action and the court overruling Crowder. Dear Reader, they were not going to go down without a fight if they know there’s a majority to overrule Grutter. And they do. They were still fighting mightily to stanch the bleeding.


Melissa Murray So both Justices Sotomayor and Jackson really wanted to drill down on how exactly race is being used in the admissions programs. I’m in USC where Justice Jackson was part of the argument, but then later this was reprised in the discussion of Harvard’s admissions policy. And Justice Jackson in the USC argument especially focused on this question of who exactly has been injured by the use of race. And she notes that the fact findings of the district court suggested that race was not a determinative factor here. In fact, race was not an automatic mechanism of getting any particular person in. There were like 40 different factors in play, and so it was hard to sort of isolate and identify race as the determinative or dispositive factor. And so she really pressed on this. And the Students for Fair Admissions lawyers kept wanting to describe both programs as solely about race, just race, race alone. And both Justices Sotomayor and Jackson repeatedly pointed out, no holistic means holistic. Like there’s a bunch of stuff here. It’s never about race standing alone.


Leah Litman And there was one psychiatric exchange that Justice Jackson had with the North Carolina solicitor general that just walked through exactly what the process looked like. She first asked him, what is the common for? You know, that’s just something all universities use. That’s not something specifically to North Carolina. Then she asked, What does the common form do? It just asks applicants to tell the school about themselves. One of the things that an applicant can tell a school right is what race they are. Then she asked him, Does that mean anyone gets an automatic point or an automatic boost, depending on what they say? And, you know, he emphatically said no. You know, does this mean anyone gets in automatically? You know, again, the solicitor general emphatically said, no, this is a holistic review. And I think it was important to have that explained and spelled out in the argument.


Melissa Murray I love this whole exchange because it was like she sort of stepped in and like, you’re doing an okay job, but I would do a phenomenal job lawyering this case. And so I’m going to do that. I’m going to limit you to yes or no answers, but I’m going to ask all the questions. I’m going to basically lawyer your case for you. So just buckle up, sit back, have a coffee and just say yes or no. Thank you. And she then was literally the most valuable advocate for that whole portion.


Leah Litman Best oralist. Best Advocate Award goes to KBJ.


Kate Shaw We actually had a couple of exchanges like that. She was fantastic. We’ll talk about her argument, but there were a couple of long exchanges. I think one was Sotomayor in which she said, yes, yes, yes, yes. Yes.


Melissa Murray She knew immediately to just let it go. Bryant Park was like trying to say words and she’s like, No, no, no more words. Your words are done. You get one word. It is, yes. Bye bye.


Kate Shaw Bryant Park, people didn’t listen as the North Carolina solicitor general, one of the people arguing along with the federal government’s lawyer, Elizabeth Pilger, in defense of the ANC and then later just Prolog in defense of Harvard. But so, you know, I totally agree. Gosh, maybe we could just talk about her performance basically for the entire episode. But it’s like that exchange that we just talked about was really so focused on the details. Right, the factual record in this like you a long time district judge way, and it’s just such an incredibly valuable perspective, she adds. But she also dominated sort of at history, high level kind of conceptual questions. She was just brilliant. So we’ll get into more. But in addition to kind of that focus that she kind of brought to.


Melissa Murray Can I ask a question? Of course, if Stephen Breyer had been on the court for this argument, would he have invoked history in the same way that she did?


Kate Shaw It would have been so fundamentally different?


Melissa Murray I think so, too. I mean, no shade on Justice Breyer. I think he’s added a lot to the discussion over the years. But I think there is something singularly important about having the voice of a black woman who has literally been raised in integrated institutions that have relied on affirmative. In the room.


Kate Shaw Not in the room. Like just dominant in the room is.


Melissa Murray Dominating the room.


Kate Shaw Asking just. And I don’t mean like in terms of, you know, asking more questions than anyone else she does. She is like one of the most active questioners. But just asking the most penetrating, most the most.


Melissa Murray Twirling on her haters. Literally twirling on her haters.


Kate Shaw Yeah. So as Justice Jackson really drilled down in the history in the Merrill oral argument about the Voting Rights Act, which we talked about in a couple episodes ago here, actually Justice Sotomayor and also Justice Kagan talked about the 14th Amendment and specifically the race conscious history of the 14th Amendment. And Justice Kagan asked the solicitor general to talk about that. So maybe let’s play that clip here.


Clip One notable thing about the argument here is that on both sides, there’s been very little discussion of what originalism suggests about this question. And so I just want to ask, what would a committed originalist think about the kind of raised consciousness that’s at issue here?


Leah Litman I think that an originalist would think that this is clearly consistent with the original understanding of the 14th Amendment, that universities have come forward with powerful evidence that surrounding the time of enactment of the 14th Amendment, there were federal and state laws that took race into account for purposes of trying to achieve the central premise of the 14th Amendment to bring African-American citizens to a point of equality in our society. And I think what’s so notable, if the court is focused on history here, is that petitioner has come forward with essentially no history to support this colorblind interpretation of the Constitution that would make all racial classifications automatically unconstitutional. There’s nothing in history to support that. So the students are fair. Admissions lawyer with maybe the hottest take of both oral arguments, said that the Freedmen’s Bureau was not about race, but affirmative action is. I just want to pause on this because the Freedmen’s Bureau has freedmen in the title.


Kate Shaw Yeah, but he really well actually the title because.


Melissa Murray Like note the inconsistency here. This is the same guy who was talking about how slavery was too closely correlated with race. But the Freedmen’s Bureau, which is literally about. The people who had been freed post slavery. Is not. But so as as he noted. Yes, but the full agency was titled the Bureau of Refugees Freedmen and Abandoned Lands, and he focused on the extremely determinative term refugees here. Like it’s really about refugees. And in reality, I think he probably should have just focused on abandoned land.


Kate Shaw Yeah, he should have just pivoted. Like we all know. That’s really what this bureau took place.


Melissa Murray The lands, the abandoned lands.


Kate Shaw And you know what? Who doesn’t have a race? Abandoned lands.


Melissa Murray A race neutral land is neutral. Blacks at the court. No black acre is definitely race conscious. Yeah.


Kate Shaw But since we are talking about the history. Right, we should maybe mention a couple of things from the amicus brief of the professors of law and history that I think we actually mentioned briefly on our last episode with Johnny Nelson. So that brief speaks, I think, really powerfully to this question of whether the Civil Rights Act of 1866, which, you know, whether it was indeed race conscious, which apparently is an issue we need to clarify in the year 2022 as we approach the end times, the end of reality. So just to make things clear, this is what the historians tell us. The benefits of these ameliorative acts and similar policies were not exclusively available to formerly enslaved people. Rather, as a matter of express policy or practical implementation, they were generally open to All Blacks, not only to recently freed slaves, and were adopted over repeatedly expressed objections that such racially exclusive measures were unfair to whites. So those objections were raised. They did not carry the day. The actual text of the Enacted Civil Rights Act of 1866 explicitly acknowledged that white citizens had certain rights and were treated as a privileged class, and there was a requirement that nonwhite citizens be permitted to enjoy those rights. President Andrew Johnson vetoed the act, in part because he viewed it as providing black citizens with special treatment relative to white citizens. The Reconstruction Congress rejected these arguments and overrode President Johnson’s veto. But of course, this argument seems to be the revenge of Andrew Johnson. I felt like that’s what we listened to for over 5 hours on Monday.


Leah Litman Because it is still time to teach some lessons. Let’s talk about that veto message again so you can just kind of hear some of the parallels between the objections to the Civil Rights Act of 1866 and these ongoing challenges. So Andrew Johnson vetoed the bill because he claimed that, quote, the institution of slavery has been already effectually and finally abrogated throughout the whole country. I am not therefore able to discern in the condition of the country anything to justify a continued need for the. Freedman’s Bureau. He goes on the idea on which the slaves were assisted to freedom was that on becoming free, they would be a self-sustaining population. Any legislation that shall imply that they are not expected to attain a self-sustaining condition must have a tendency injurious alike to their character and prospects. One year after the Civil War. Get over it. Right. Like that is the message.


Melissa Murray Stop whining. Move on with your lives. Slavery is over. What are you whining about? You’re free to go. Be free. I’m sorry. This whole oral argument. Was like a macoagression. Yes. And anyway. Maybe let’s now turn to some other nuclear moments during the argument when it was once again clear that the Democratic appointees were not going to go gently into that post-career night. They revealed, quite honestly, that they are truly in a class, literally in a class all by themselves on this court. So again, cue the usual jokes about who the actual beneficiaries of affirmative action are. Spoiler alert it’s not KBJ, SS, or Elena Kagan. Justice Kagan, also known as Good Sis Elena, decided to drill down on how Students for Fair Admissions supported race neutral criteria that excluded people of color from college and how they would allow colleges and universities to become extremely unrepresentative. So let’s play that exchange.


Clip I guess what I’m saying is your brief and this is very explicit in your brief is like it just doesn’t matter if our institutions look like America. You say this on page 11, in your reply brief. And I guess what I’m asking you is, doesn’t it? I mean, doesn’t it these are the pipelines to leadership in our society. It might be military leadership. It might be business leadership. It might be leadership in the law. It might be leadership in all kinds of different areas. Universities are the pipeline to that leadership. Now, if universities are not racially diverse and your rule suggests that it doesn’t matter, well, then all of those institutions are not going to be racially diverse either. I don’t. And I thought that part of what it meant to be an American and to believe in American pluralism is that actually our institutions, you know, are reflective of who we are as as a people in all our variety.


Leah Litman I like this energy, like you say this, but seriously, bro.


Kate Shaw I just really loved that it was you know, Kagan is obviously such expert, careful lawyers, lawyer in so many of these arguments. But here she was just like there are substantive values in the mix and they are unavoidable. And you either do have a view that pluralism and diversity are values that we want to pursue or you don’t and you just don’t care. You may even think the world is better without those values centered, but let’s be explicit about like whether we think those are affirmative goods or not. And it seems to me that you, all my colleagues on this bench don’t think those are affirmative goods. And that was, I thought, a really valuable and clarifying moment.


Leah Litman Yeah. Like requiring them to own it.


Kate Shaw Yeah.


Leah Litman So along these lines, Justice Sotomayor brought up how every simulation that Students for Fair Admissions offered at the trial court level, you know, about how admissions would work under their proposed criteria showed dramatic decreases in enrollment by black students and how their proposals were asking us to take a step backwards. And I think that is what Justice Kagan was in part alluding to.


Melissa Murray Justice Jackson had just a brutal eye popping question slash hypothetical that I think really blew this case wide open and really changed, I think, the tenor of argument once she put it in the mic. So recall from our opening that the plaintiffs here seem to think that the Constitution says you cannot check any boxes regarding race, but it’s probably fine, maybe with applicant essays that tell personal stories as long as they’re not closely correlated with race. So Justice Jackson asked about the implications of student for fair admissions arguments for two hypothetical applicants. Let’s play that.


Clip And so what I’m worried about is that the rule that you’re advocating that in the context of a holistic review process, the university can take into account and value all of the other background and personal characteristics of other applicants, but they can’t value race. What I’m worried about is that that seems to me to have the potential of causing more of an equal protection problem than it’s actually solving. And the reason why I get to that possible conclusion is thinking about two applicants who would like to have their family backgrounds credited in this applications process. And I’m hoping to get your reaction to this hypothetical. The first applicant says, I’m from North Carolina. My family has been in this area for generations since before the Civil War. And I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that. And given my family background, it’s important to me that I get to attend this university. I want to honor my family’s legacy by going to this school. The second applicant says, I’m from North Carolina. My family’s been in this area for generations since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. As an African-American, I now have that opportunity. And given my family, family background, it’s important to me to attend this university. I want to honor my family legacy by going to this school. Now, as I understand, your know, race conscious admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count. The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him. While the second one wouldn’t be able to, because his story is in many ways bound up with his race and with the race of his ancestors. So I want to know, based on how your rule would likely play out in scenarios like that, why excluding consideration of race in a situation in which the person is not saying that his race is something that has impacted him in a negative way, he just wants to have it honored, just like the other person has their personal background, family story honored. Why is telling him no, not an equal protection violation?


Melissa Murray Again. This was like an earthquake. Like shake it like an earthquake. She literally blew this up. Yeah.


Leah Litman I have to. Here, just mention the work of my colleague, Elise Botti, who has an essay on the indignities of color blindness that explains how you make colorblind approach to the Constitution, devalues and adopts an approach that requires people to erase and undervalues like certain identities because it doesn’t allow individuals to talk about their race as an aspect of their identity. And, you know, I took Justice Jackson’s question as kind of an example about like how that particularly happens.


Kate Shaw Yeah.


Melissa Murray I think she was saying that, too, is an equal protection violation. She also, I think, was suggesting it might actually be viewpoint discrimination, which, you know, maybe that was seeding the prospect of maybe a First Amendment challenge. Like there are other constitutional questions involved with this proposed race neutral landscape that Students for Fair Admissions would like to see.


Leah Litman Yeah, I also wanted to know whether her question about the family history of USC might have been inspired by Dr. Pauli Murray’s family history. You know, the white side of Dr. Murray’s family went to Unci for a few generations and Polley was rejected from USC, with USC telling them it was because of Holly’s race that they would not admit. Pauli So I was kind of curious whether the hypothetical was partially inspired.


Melissa Murray Maybe it’s an Easter egg. Easter egg.


Kate Shaw Yeah. We should say, because it was a while ago we had the filmmakers from the I Am Polyamory film on the episode are two, maybe two years ago, at least a year ago, and include in the film the actual image of the letter that is very explicit like sorry, we don’t accept black applicants like and it’s from you and Z. So yeah, I think it’s very possible that, that, that was a subtle reference to polyamory. So Justice Kagan had another off the cuff, just brutal, real time reaction to an advocate’s response. Let’s play that here.


Clip Colleges now, when they apply gender neutral criteria, get many more women than men and assume that that continues to be true. So that using gender neutral criteria, you know, men are 30% of a class are 35%. And a university said, you know, that’s neither healthy for our university life nor is it healthy for society that men are so undereducated as compared to women. Could a university put a thumb on the scales and say, you know, it’s important that we ensure that men continue to be receive college educations. And not perfect equality or, you know, but like roughly in the same ballpark.


Clip Well, of course, you know, under under this court’s precedent with respect to the equal protection clause, that that is subject to a somewhat lesser level of scrutiny than racial classifications are. So even if they could justify them under this court’s equal protection jurisprudence, I don’t think it follows that they can justify racial classifications.


Clip Yeah, I mean, I mean, you’re right about the levels of scrutiny, but that would be peculiar, wouldn’t it? Like white men get the thumb on the scale, but people who have been kicked in the teeth by our society for centuries do not.


Clip Well, of course, our position is that white men could not get a thumb on the scale. That sounds like a racial classification.


Clip Men could perhaps midpoint men.


Melissa Murray So was this like a very subtle rebuke of. Incel culture in.


Leah Litman The the like, dripping disdain of the hypothetical that like, maybe society would have an interest in avoiding men? Being undereducated was just like while she looks what she wants to her life looks to her right. And it’s like any problems with under education lack of education here I don’t know. And then coupled with oh yeah. You know, after the lawyer tells her that men. But not black people are allowed to benefit from affirmative action, it. Was really something, you know, and because. Our listeners really enjoyed us highlighting Justice Kagan interjecting. Not really. When a lawyer asked if he could interrupt or stop her. We wanted to to along those lines, call attention to another moment during this oral argument, which we’ll play here.


Clip Just fighting the question. I mean, the question is, you know, is there a limit beyond which you would say, oh, yes. If if you can’t achieve that level of diversity with race neutral criteria, then you’re allowed to use race conscious criteria.


Clip I don’t think there’s any level that justifies explicit racial classifications, but I’m going to fight the hypothetical one more time, if you’ll let me, because.


Clip I don’t think I will. So let me just go on and ask you a couple of other things. I mean I mean.


Leah Litman Yeah, I don’t think I will is like Justice Kagan reclaiming her time in like she is not here for this bullshit.


Melissa Murray Sit there and eat your food. Just shut up and eat your food? Yeah. No, I don’t think I will. I’m going to try that in class. See how that goes.


Leah Litman Exactly.


Melissa Murray Yeah. No, no, I don’t think I will.


Kate Shaw Kagan did have one lighthearted moment about Dartmouth. Let’s play that one here.


Clip I mean, I think that’s our point, that S.A.T. scores would go from the 99th percentile to the 90th percentile. That’s not sacrificing academic excellence. That’s moving Harvard from Harvard to Dartmouth. Dartmouth is still a great school. That’s that. They get 90th percentile SAT scores. You’ve got to make some sacrifices. I don’t I there are those who love it.


Melissa Murray I mean, we stan a well placed Daniel Webster quote. I mean, the opportunities for it are so.


Kate Shaw What’s the Daniel Webster quote?


Melissa Murray It is a small college. And yet there are those of us who love it. Yeah. Dartmouth College Versus Woodward.


Leah Litman Yeah. That’s Daniel Webster.


Kate Shaw That’s right. Okay. Sorry, you guys. I didn’t know that.


Melissa Murray I mean, Jeopardy team tournament contestant here.


Kate Shaw I wasn’t in any way challenging you. I was just asking to be educated. And now I am.


Melissa Murray You will not be one of those undereducated, men. So I want to say Elena Kagan, whatever your pitching we’re catching. We love these Daniel Webster quotes. We love it.


Melissa Murray [AD].


Leah Litman There was still more from these oral arguments that we did want to talk about, so maybe let’s keep ticking through.


Melissa Murray So in one very telling colloquy, skin care model Sam Alito asked whether there could be a scholarship for the children of immigrants. I’m just going to say as a sidebar. During his confirmation hearings in 2005, there’s actually quite a long discussion of his family’s history as immigrants from Italy. So interesting. Anyway, Patrick Strawbridge, the lawyer for Students for Fair Admissions in the USC case, responded that, yes, as long as these were not limited to certain countries, I’m guessing certain countries from the dark continent. So I think we can prepare ourselves for a spate of scholarships for the descendants of Christopher Columbus, but probably not for the descendants of Frederick Douglass. What do you think?


Leah Litman I mean, again, descendents of Christopher Columbus, not about race, but descendants of Frederick Douglass is about race. Or at least, you know, the races that we don’t want it to be about seems to be the undertones of speaking exactly the anti-blackness of this oral argument.


Kate Shaw Yes.


Melissa Murray Immigrants from Italy, great immigrants from Ethiopia, maybe not.


Leah Litman Immigrants from, quote Africa. I get there, but.


Melissa Murray I forgot to offer North Carolina Africa. Just the Africa.


Kate Shaw Yeah.


Leah Litman So this exchange called to mind something from the Voting Rights Act argument we discussed with Duele Ross when he was on the show. And that particular moment from the Voting Rights Act argument was also revealing about the relationship between color blindness and anti-blackness in the Voting Rights Act case. Recall, Alabama is arguing that they did not draw another majority black district because they wanted to keep together a particular community of interest, namely descendants of French colonial heritage. And they were arguing that they could do that, but that they could not try to keep together Alabama’s black community as a community of interest, because somehow colorblindness allows them to consider and protect descendants of French colonial heritage, but not black people.


Kate Shaw So sticking with Kagan for just another minute, there was a moment at oral argument that felt like it was a call out to Brett Kavanaugh, even if not explicitly. Right. And that was Kagan basically getting students for their admissions lawyer to say that Kavanaugh’s law clerk hiring practices were unconstitutional.


Clip If you’re a hospital and you serve a diverse group of patients, is it super important to you to have a diverse set of doctors?


Clip I don’t know that the evidence about the diversity of doctors and patients or anything about the medical field, it wouldn’t matter.


Clip Yeah, okay. Or maybe it was. You don’t know if you’re a police department and you serve a diverse community, is it super important to you to have a diverse set of police officers?


Clip I mean, I believe that’s important. If there’s good evidence that that that a racial classification was needed, that has nothing to do with the educational benefits of diversity in universities that the interest at Grutter.


Clip Do you think that if you’re a law firm or if you’re a judge, if you’re a judge and you want to have a diverse set of clerks, do you think a judge can’t think about that in making clerkship decisions?


Clip Absolutely can think about it. That’s court’s decision. And Feeney says knowledge of race is not the violation, is using it as a factor.


Clip I’m saying let’s let’s say a judge says I want a diverse set of clerks. That’s you know, I want clerks who would, you know, grade on any number of criteria. But I also want a diverse set of clerks. So over the years, people will look at that and they’ll say, there are Asian-Americans there, there are Hispanics there, there are African-Americans there, as well as there are whites there. Can a judge not do that?


Clip I mean, I think that’s a that’s a that is a admirable goal. I don’t think a judge could implement that goal by putting a thumb on the scale against Asian applicants or giving a big preference to black and Hispanic applicants.


Leah Litman So Stephen Macy, who’s the legal correspondent for The Economist, noted on Twitter that Justice Kavanaugh seemed to give Justice Kagan a bit of a surprise look when she was asking these questions. And, you know, just for those listeners who might not recall Justice Kavanaugh’s hiring practices from his opening statement for his Supreme Court confirmation hearing, he said as follows, quote, A majority of my 48 law clerks have been women. More than a quarter of my law clerks have been minorities. And I have had far more African-American law clerks than the percentage of African-American students in U.S. law schools.


Melissa Murray Was that meant to be like a snarky kind of deal or was she genuinely kind of? I thought she was sort of like it was an opening to him. Like you profess to prioritize this, like, is this an opportunity for you to kind of join us in moderating whatever these to Clarence and Sam here are trying to do?


Kate Shaw Yeah. Yeah. Or just to yes. To highlight to him and to the world that the logical extension of the position that these plaintiffs are making is that it was constitutionally impermissible for Kavanaugh to have prioritized diversity in his chambers, you know, even not like in any enforceable way, but like in principle. And at least if he signs on to Sam Alito’s don’t even want to speculate about who’s writing this majority opinion. Let’s not. I can’t do it today. Thomas.


Melissa Murray Isn’t it Clarence Thomas. Right. Yeah.


Melissa Murray We have we haven’t talked about him. We’re going to get to that.


Kate Shaw We’ll get there. Yeah, but I just want I think she wanted Kavanaugh to at least have in mind that he has done and said things that are really not very different from what you would see at Harvard in their admissions policies have done. And obviously, in Kagan’s view, the Constitution has no problem with that. And I think she thinks in his heart of hearts, maybe Kavanaugh understands it’s permissible to. And so I think you’re right. It is an attempt to appeal to whatever shred of decency remains in him. An open mindedness. But also in the event that that’s unsuccessful, just to kind of remind the world that there’s just like Rand.


Melissa Murray Paul, Brett Kavanaugh by the Constitution, he’s not in violation. Okay. So maybe just continuing on.


Leah Litman In the interest of time, you know, throughout the arguments, there was just overwhelming anti-affirmative action, colorblind anxiety bubbling up all over with several justices asking when will it end? When will this scourge of affirmative action finally end? There has to be an end point. And it’s like I have missed your similar anxiety and concern about the scourge of systemic racism, but I guess I’ll just wait for that to appear.


Kate Shaw Your honors. There was so gaslighting in that like, well, you can’t pick an endpoint, you can’t name an endpoint. And if you can’t name an endpoint, like we have to just write the whole thing down now. And just like you all constructed this idea of an endpoint in Grutter with this like sunset after 25 years idea and to hold the admissions officers who continue to reside in a structurally racist society responsible for the fact that racism hasn’t been solved and say, well, it’s not our fault, and so we have to strike down your program. Just like felt like the ultimate circularity and gaslighting, and it came up again and again.


Melissa Murray What about just in driver’s take on this, that, you know, perhaps there is a compromise here where the justices give some sort of long leash reprieve for winding down affirmative action based on the 25 year language dicta in Grutter. I mean, is that plausible? Plausible? I did not think.


Leah Litman I also did not think going into that. I mean, have these justices shown that they are like open to compromise? I mean, sure, Justice Kavanaugh asked about the sunset, but like the flavor of his questions was basically like, well, if we overrule it now, we’re effectively ending it for the class of 2028. So we’re basically satisfying the 25 year window. Again, him invoking being faithful to precedent, like, is this a fucking joke? It’s just ridiculous.


Kate Shaw It also felt like get a little bit cut in exactly the opposite direction, which was that because there was the expiration date, if they really credited the 25 year part of Grutter as part of the holding, basically they don’t even really need to overrule Grutter. They’re just like giving it.


Melissa Murray They would announce that Souter had.


Leah Litman Abandoned the use of race conscious remedies effective 2020.


Kate Shaw They’re reaffirming it. And so they’re like, So you two, in your end of of term scorecards, this isn’t even an overruling of a precedent case.


Melissa Murray It was a last chance. It’s like the Apple phone. We’re coming out with a new race neutral model.


Kate Shaw Early, two years early.


Melissa Murray Really after Apple Phone 14 coming soon from Brett Kavanaugh. Yeah.


Melissa Murray Anyway, the chief justice also had a question that, again, as a black person, I was just sort of like my dude. So he asked this question, What about the black kid who grew up comfortably in Grosse Pointe, Michigan? So Grosse Pointe is a very fancy suburb of Detroit and I imagine comfortably means this kid has parents with some cash. And his point was this kid’s views are indistinguishable from a white applicant. Why should he get the benefit of having his race considered? Why is it fair to give him a preference for this? And again, as a black mother who tells her kids never go into stores with a backpack on and always make sure you get a receipt before you leave. I just think you can’t understand the way in which wealth cannot insulate you from the impact of racism. And trust me, black people are trying to insulate themselves. But it’s just so overwhelming in so many cases how you’re perceived and how you move in the world. So please do go on. John Roberts, he who knows so much about the black experience. Sir, again, where was black Twitter on this? Because I think this would have been like people would’ve been like for serious like how about we go shopping in an expensive store together and see how that plays out?


Kate Shaw Yeah. So sort of incredible disconnect from lived experiences on display from Robert and many other justices. Another kind of mode of sort of gaslighting or bad faith questions to my mind, in addition to, well, racism isn’t over. Ergo, we have to strike these programs down. We’re kind of a line of questions that seemed born from the Supreme Court itself, having kind of pinned the future of affirmative action to the diversity rationale basically in Grutter. Right. The court says the only constitutionally permissible justification for race consciousness in admissions is the pursuit of diversity, both in classrooms and, you know, to create diverse pipelines of leaders and business in the military and other places in society, but not in order to remedy a history of discrimination, although there are pockets of that kind of remedial justification that may survive elsewhere for, you know, a little bit longer, who knows? But at least in higher education, I mean. Diversity is the only thing that’s compelling enough to justify race consciousness. But so the justices sort of use this kind of gotcha logic to say, well, you know, but you’re not even relying on a remedial justification. And so if all you’re doing is this kind of amorphous pursuit of diversity, were not even totally sure what that means. That can’t be good enough to justify the kind of racial classifications that these programs represent. And it’s like the reasons the advocates are not offering remedial justifications and the schools are not relying on them is because the courts cases have ruled them out, even though that’s a rationale that makes a tremendous amount of sense here. So they were just boxing these advocates in in a way that just felt so bad faith and unfair to me.


Melissa Murray It did feel like a lot of gaslighting. And Neil Gorsuch actually had something very interesting to say here. So he was talking about the Harvard plan that Justice Powell talked about in Berkeley. So, you know, this was like the farm boy from Iowa could be admitted to Harvard and again, diversity. But he actually pegged the origin story of the Harvard plan, not to Powell or Harvard in the 1970s, but rather to Harvard in the 1920s, when the president of Harvard, Henry Cabot Lowell, used this questionnaire that was meant to sort of identify certain kinds of characteristics as a means of limiting the enrollment of Jewish students. And this was such a classic Roberts court move, like creating a new origin story for this practice as a means of rooting it in racism and undermining it going forward. So I thought this is very much like the eugenics and abortion move, the move that they did on Ramos with regard to the Non-Unanimous jury rule. And he was right there. Isn’t this really have always been about racism.


Leah Litman And equating these race conscious measures that are designed to achieve racial integration as the same as like race conscious measures once used to exclude black and Jewish students is to my mind, disrespectful to like basic accounts of history and intelligence because the school wants to use holistic review and diversity for bad purposes. That means all holistic review and diversity is bad. I mean, like law was used til subordinate and subjugate people. Does that mean like all laws are bad? It’s this reductive, ridiculous mockery of analogy in history that endlessly frustrates me. But it also, I think, ties into like another theme of the arguments, which was basically like, fuck the facts, fuck the fact finding right here, my feelings, because it’s clear the justices were willing to just kind of discard the rules about factual findings and deference. You know, there was an actual trial here where the trial court made findings about the fact that there is no discrimination against Asian-American students in other things. But still, Justice Alito, Justice Gorsuch and the other justices are like, well, I have some hunches about what’s going on here, so like, I’m just going to offer you those.


Melissa Murray Well, interestingly, there was one justice who didn’t really care about anybody’s feelings, whether on his side or the other side. And so Justice Thomas made clear, he actually said a couple of times, like, I don’t care about feelings. I don’t care about how you’re supposed to feel in college. You are supposed to go to college to learn and get an education. So I want to know, one, what is diversity? Which also seems. Like a. Gaslighting kind of question. And two, what are its academic benefits? And when the advocates tried to talk about this, you know, improved understanding of different perspectives like opening lines of conversation, he was like, nope, nope, nope. How does it make you a better organic chemist? That is what Justice Clarence Thomas would like to know. Where does it help you understand how to divide a molecule? It doesn’t. Thank you. And that’s why it’s over. It was a really interesting and again, an intergenerational comparison between Jackson and Thomas was really striking is just sort of like the guy who grew up in segregated institutions, the woman who grew up in integrated institutions, two very different views of school.


Leah Litman This kind of gets to something we were talking a little bit about before recording, which is like a very myopic account of what schools and education is for. Like going to school is not just about knowledge. You learn to recite or apply on a test or like at a subsequent job, but about how you perceive the world around you, how you process facts, how you interact with other people. That is an important.


Melissa Murray How you understand the world processing you. I mean, this was the point of brown like little kids who go to segregated schools growing up feeling that they’re inferior like this was the bottom line in BROWN.


Leah Litman Yeah. And if the justices are effectively like creating a future generation of schools that will not provide people with the education, that like more pluralist schools, more multiracial schools does then like our democracy and like our polity is going to be weaker for it.


Kate Shaw Yeah, you know, Thomas was so kind of derisive and dismissive of the in-classroom benefits of diversity. I think it’s pretty clear there both are the in classroom benefits, but much more broadly like. After they finish school, like our participants in democracy. And this is a moment which we, as we’ve talked about on the podcast repeatedly, democracy is in pretty rough shape. And so to kind of compound the dismantling of a lot of the structures of our democracy by actually really like resegregating our institutions of higher education learning or at least like, you know, rolling back immense progress on integration. Like nowhere near enough progress. But at least these schools have definitely made some progress is just, I think, like another huge flashing kind of warning sign in terms of the long term health of our democracy. So the effects are on the individual students, on classrooms, on institutions and, you know, kind of our democracy more broadly, if the court goes the way, it’s almost certain to go.


Leah Litman And again, like there were factual findings about the benefits of diversity and about like what diversity is in this case. And in particular, the counsel for Harvard’s Seth Waxman would routinely say something along the lines of, here’s what the record shows. The district court found this specific fact and the appellate court affirmed it on this page of the record. And then the justices would just respond with, well, just accept my version of the facts. For purposes of this question and answer my question, you know, let’s assume this is a quota system or like let’s assume right there is like a self-sustaining endowment. And it’s like, I understand that this case has particular facts, but what if it did it?


Melissa Murray And like, what if I’m just, like, occupying this alternative universe? What about then?


Kate Shaw Yeah, I mean, maybe the best encapsulation of that was when Waxman said, look, the district court found, considering all the evidence, that there is no credible evidence that corroborates the improper discrimination suggested by as far as interpretation of the personal rating. And then Justice Alito was like, all right, well, I’ll try one more time. And just like pressed ahead, like he didn’t even like that answer. Didn’t even penetrate.


Melissa Murray Yeah. It’s also worth noting that they were weirdly very chummy when Waxman got to the lectern. He is, of course, a former solicitor general, also a repeat player here. But what was notable to me is that there were a couple of times when some of the male justices interrupted him and apologized for doing so. And I actually never heard them apologize to Solicitor General Prager when they interrupted her. So I thought it was notable.


Leah Litman I actually think there might have been a apology to pre locker this argument this right yeah yeah.


Melissa Murray I may have missed it. I wasn’t I wasn’t following was it in the Harvard like in the Harvard case? I did, yeah.


Melissa Murray There were some.


Melissa Murray Interruptions in the.


Melissa Murray Ramsey case. Yeah. All right. Well, all right. We’ve got.


Kate Shaw Hours long. If you had to, like I don’t know about you.


Melissa Murray Want to step out.


Kate Shaw To attend a Halloween stuff for my children. And so I was I listened to 95% of it, I would say, in real time, but.


Melissa Murray Not my point is.


Melissa Murray Simply like, one, there is, you know, a gender disparity and certainly and people represented at the lectern also just a kind of insularity in terms of the sort of clubby feel of the.


Leah Litman But I’m sure it has something to do with culture and not.


Melissa Murray But not rape.


Leah Litman Culture. That’s just correct.


Kate Shaw Gender, probably.


Melissa Murray Not a culture. It’s culture. It’s like race neutral culture or race in gender neutral culture.


Kate Shaw All right. Well, she is also blogger. You know, despite maybe not getting quite the same charming treatment as Waxman was. Incredible, I thought, in both arguments. And I wanted to highlight part of her opening statement in the UN’s case about the national security imperatives of building a diverse pipeline and using race in admissions to do that, where necessary, in the military academy. So of course, this call to mind, the amicus briefs in Grutter that the court found super persuasive, relate, you know, referenced a bunch in oral arguments relied upon in the written opinion that were from a bunch of former military leaders who basically said it’s absolutely critical that we have a diverse officer corps in order to lead a diverse fighting force like our the enlisted ranks of our military is very, very diverse. And it is super important that the leadership of our military also be super diverse in order to effectively lead. And so, like there’s a national security imperative that you not invalidate the military academies ability to use race in admissions. And I mean, it can’t be that the justices completely dismiss that. I mean, it may be like literally the YOLO Court might be like, well, if we actually need to completely undermine national security because of this warped vision of a colorblind constitution, so be it. Like I don’t at all. I wouldn’t put that past them. But I also think it’s possible that they will carve something out explicitly that says because of the president’s article two powers, military academies and the federal government, of course, it’s, you know, a federal government, not a state university like USC. So there are these potential constitutional differences or not touching those schools. I mean, I presume a case involving one of those schools would then end up before the court. So they would just be deferring answering it. But they can’t, I don’t think, ignore those potential implications of whatever they do here.


Melissa Murray Well, I think this line of argument had two main points. One was not just an echo of the brief in Grutter, but an echo of the brief that was filed years earlier in Brown, in which the Department of Defense in the State Department essentially said we cannot be the United States, a major leader on the world stage while we nurture this climate of apartheid at. Home like to be moral leaders in the world. We have to desegregate. So I think that was part of it. I also think it was part of the fact that national security interests have been deemed compelling governmental interests that have justified the use of race in, for example, Korematsu, the now discredited Korematsu as see Trump versus Hawaii. So I think there was a lot going on in that exchange. And I think you’re right that there likely will be a carve out for the service academies, maybe even. Again, she was pushing on the question of ROTC programs on standard campuses as well. I don’t know if it will go that far, but it did seem like she was getting some traction there. And the reason we know she was getting some traction was because Justice Alito seemed to be spitting mad about the prospect of any kind of carve out for the military. So let’s play that exchange.


Clip Well, what you say about the military is something that we have to take very seriously. You represent the entire executive branch, including the military, and we have to presume that you are reflecting the views of the military. But what do we do with the fact that the United States was on the opposite side in the Harvard case when the case was in the lower court? And what do we make of the arguments that were made by your predecessor in Grutter? Were they not were they insensitive to the needs of the military? Only. Only you have accurately represented the interests of the military.


Leah Litman Well, let me take each of those questions and turn with respect to the Harvard case. It’s true that the United States participated below on the side of petitioners, but only with respect to the factual record and what we thought my predecessor thought the evidence showed in the case on the factual issues. We did not take a different position on the legal interests here or assert a different interest on behalf of the military. With respect to the Grutter case there to the United States, did not take a position to call into question whether diversity could qualify as a compelling interest in this context. Instead, the participation of the United States was confined to the narrow tailoring prong of the analysis and whether race neutral turn ITVS were permitted. And my predecessor was asked specifically in that argument whether he thought that the military’s and the Academy’s race conscious admissions programs were unconstitutional, and he declined to say that they were. So I do not think that there is a distinction that’s been drawn, and it has, in fact, been the consistent judgment of our senior military leaders across the decades and across administrations, including in the last administration, that it is critically important to our national security to have a diverse officer corps. So that has been a constant and a.


Melissa Murray Through line here.


Leah Litman He’s like, How dare you? What are you saying? The Trump administration didn’t care about the military. That simply cannot be esprit Léger is performance also had this notable moment that we wanted to highlight because it’s something we’ve repeatedly talked about on the podcast, and that is the lack of women at the lectern, the podium arguing before the Supreme Court. And the solicitor general invoked that as an example of the kinds of harms that can follow from an unrepresentative institution. So let’s play that clip here, if I could. Maybe I could just give a, I think, a common sense example of that that I would hope would resonate with this court. The court is going to hear from 27 advocates in this sitting of the oral argument calendar, and two are women, even though women today are 50% or more of law school graduates. And I think it would be reasonable for a woman to look at that and wonder, is that a path that’s open to me to be a Supreme Court advocate? Are private clients willing to hire women to argue their Supreme Court cases when there is that kind of gross disparity in representation? It can matter. And it’s common sense. It’s notable that while only two women were arguing during this sitting, there were the same number of women arguing as. MATTHEWS arguing this sitting. So there was parity and that.


Melissa Murray Perfect.


Melissa Murray Parity for Matthew.


Kate Shaw I mean, props to Prologis for making this point. It was like we all know the justices hate to ever have like the mirror turned on them. They hate ever being reminded that they are an institution like with their own practices and folkways and dysfunctions. And I thought that was really kind of bold of her to turn the spotlight onto them.


Melissa Murray You could you could just hear her posture when she said that, like.


Kate Shaw Well, it’s always perfect. Her postures always.


Melissa Murray It’s I mean, it was perfect here.


Kate Shaw It was so and then maybe one more point on Prolog or so, Kagan asked her literally three and a half hours into the argument tears, but which wasn’t even near the end of the argument. But how do you respond to the petitioners argument that they are the ones that actually are rightfully claiming the mantle of Brown and that Brown versus Board of Education of its own force essentially invalidates these race conscious admissions programs. And Kagan rarely throws a really like a softball quite like that to an advocate. Like even when she’s sympathetic to a side, I feel like she usually asks pretty tough and sharp questions, but I think she was just like, somebody needs to get this argument on the table. And it is worth, I think, playing prologis answer to that question in its entirety.


Clip I. I think that argument is wrong in just about every respect. There is a world of difference between the situation this court confronted and Brown. The separate but equal doctrine that was designed to exclude African-Americans based on notions of racial inferiority and subjugate them, which is this court recognized with schoolchildren, affected their hearts and minds in a way unlikely ever to be undone. A world of difference between that and the university policies at issue in this case, which are not intended to exclude anyone on the basis of race or even to benefit particular racial groups on the basis of race, but rather are designed to bring individuals of all races together so that they can all learn together and benefit from that diverse educational environment. And I think it is profoundly ahistorical to say, as petitioners do, that those situations are precisely equivalent. And it also trivializes the grievous moral and legal wrongs of state sponsored segregation and the enormous harms that millions of Americans suffered under it.


Melissa Murray One final note. Again, going back in time to history, we’re going to go forward from Brown and just talk about the moment where our friend of the pod, Sam Alito, revealed his Concerned Alumni of Princeton roots. So he asked the following question, which he said was designed to figure out whether an applicant could claim they were actually a member of an underrepresented minority.


Clip Factors that we. It’s family lore that we have an ancestor who was an American Indian. So I think in that particular circumstance, it would be not accurate for them to say, well, I am identified as an American Indian because I’ve always been told that some ancestor back in the old days was an American and was an American Indian.


Leah Litman I really feel like we should have predicted that Sam Alito would try to nag Elizabeth Warren during this oral argument in hindsight.


Melissa Murray There’s definitely going to be a sub-tweet.


Leah Litman Exactly. It’s so obvious and not to pat our own backs here when we failed to make that prediction. But I do think an important service that we offer the public is just playing things that Sam Alito actually says at oral arguments. Just so people know what the hell is actually happening and how the justices are deciding these cases, because, again, summarizing, it just would not do it justice.


Kate Shaw No.


Melissa Murray Well, and if you had forgotten about the whole Elizabeth Warren Native American flap from a couple of years ago, it was played endlessly on Fox News, which is probably where you heard about it.


Kate Shaw I’m sorry to our listeners that we’re making you listen to these clips, but honestly, like, it’s important.


Leah Litman Yeah.


Melissa Murray Wow. I literally don’t know how I survived that entire 5 hours with my piece intact, but here I am, like by the grace of our Lord Beyoncé, Giselle Knowles. I have survived.




Melissa Murray


Kate Shaw Okay. So on the day after the big affirmative action cases were on Monday, the court heard two cases the next day where the court seems poised to make it harder for people to vindicate their rights in federal courts and also harder to correct wrongful convictions. So if you thought things were going to take a turn for the more uplifting in the last part of the episode. Sorry.


Melissa Murray Yeah. You don’t know this court. Anyway, first up on the docket was a case called Jones versus Hendricks, a case about whether people who were convicted in federal court because of an error of statutory interpretation can challenge their convictions. If the error in their case means they were convicted of something that isn’t actually a crime under federal law. You would think this would be an easy one. You would be wrong. This would also affect whether people can challenge wrongful sentences where they were sentenced to more time than the law actually says that they can.


Kate Shaw Serve as a reminder. In this case, the federal government partly agrees with the petitioner. So the court appointed an amicus to defend the rule of the lower court. Here they appointed Amicus was Morgan Ratner, who is a lawyer at Sullivan Cromwell. She’s formerly of the Solicitor General’s Office, and she’s a former clerk to Kavanaugh and Roberts. So this was I, you know, like fixated on these appointments. This was kind of a weird amicus appointment in that the justices do almost invariably tap their former law clerks, but they often do it to give a former clerk a first argument at the court. And Ratner, you know, is already done a bunch of arguments. So I honestly wasn’t sure why she got the nod. On the other hand, I suppose she is the reason for longer wasn’t the only woman arguing in the month of November. So that’s something.


Leah Litman This argument was about as bleak as it could be. You know, my guess is coming out of the argument is it will be a63 ruling for the court appointed amicus saying people who are convicted of something that isn’t a crime cannot file a habeas petition challenging their conviction. And Justice Gorsuch is basically just beside himself with joy, just like proud as a peacock that he is about to impose. His innocent people can’t file habeas claims view on the entire country. Of course, he pioneered this view as a judge on the 10th Circuit. I wrote about it in a short essay when he was on the short list of nominees, you know, for President Trump’s Supreme Court seat. And I was like, you know, this is emblematic of his jurisprudence and his approach to the law. And anyways, don’t get me started on that. And then Sam Alito, for his part, is like Santa. Is that you not providing criminal defendants with a remedy? Yes. I’ll take that in my stocking, please. In a breath of fresh air for me at the oral argument, Justice Jackson suggested that the rule of vanity, which is a principle that criminal law, should be interpreted against the government and in favor of criminal defendants. She suggested that principle might be applicable to statutes that are about whether to remedy legal violations of the rights of criminal defendants. And I just want to say, I want you to live in a world in which that is true, but maybe we can just play a few nuggets on this argument.


Kate Shaw So let’s start with a clip of Justice Jackson basically boiling down the case. To kind of a nutshell.


Clip Can I just ask one more thing? You said 2255. You sort of agreed with Justice Kagan’s premise that maybe the savings clause is generally about when is 22, 55 not working. And you suggested a couple of situations in which that wouldn’t be when it wouldn’t work because the court is not there or because the nature of the relief is such that you couldn’t get it, or some sort of technical situations like that when I’m still not so clear on is why 2555 could not be working if because of one of its provisions it’s, you know, unconstitutional or it doesn’t allow you or doesn’t allow for.


Melissa Murray Actually.


Clip Innocent people to have one clear shot at relief. Like, why isn’t that a species of 22, 55 is not working and therefore you need to be in the habeas lean.


Melissa Murray Also free tip, free advice to litigants. Be careful before you try and propose hypotheticals back to the court because it does not always work out so well. So here is a little clip between Ms.. Ratner and Justice Kagan.


Clip Why wouldn’t Congress have just said and and and these statutory claims are precluded? I mean, Congress did not say that. It knows that it has a savings clause. It knows that the statutory claims under the savings clause are going into the habeas court. Why not just say it? So I you know, let me take the saving clause part separate. Why not say it? I think they probably would think it’s pretty obvious when when I tell my kids they can have a second snack, but only if it’s fruits or vegetables. I don’t usually feel the need to say, but definitely not ice cream. I feel like that’s. A different situation. I mean, because whatever. I agree with that they had ice cream before that. But what if they had ice cream before? What about the dreamer age means I mean, it’s referring to it referring to 20 to 55 emotions. And and so you have to. Make the jump to habeas and the savings clause tells you when and where to make the jump and without. 2255 H that jump would have been made for statutory claims. So why not say in 2255? And we mean statutory claims too.


Leah Litman I just wasn’t so sure about analogizing like giving your kids a second snack to how we should be thinking about whether innocent people should get out of jail. Was the best analogy really.


Melissa Murray Depends on the snack, Leah. I mean, if it’s like vegetable chips, maybe.


Leah Litman And it reminded me of, you know, an analogy we highlighted in a previous opinion of the court about ceviche. So this was from Yellen versus Confederated Tribes of Chinchillas. And the court attempted to analogize Savage to whether Indian tribes were, like eligible for funds under this federal law. And it’s just like a wearied argument attack that does not always work. And when it doesn’t work, it’s just exceptionally poor.


Kate Shaw Just one little note I wanted to flag that I think was a true Alito, although it might have been a slightly different persona of Alito. But basically, at one point, Alito asked Deputy Solicitor General Eric Fegan about whether it would be too burdensome to require district courts to analyze the traditional scope of habeas. So maybe let’s play that clip here.


Clip Do you have any concern about the complexity of the rule that you are advocating? If it were limited strictly to a situation like RIF, fine, everybody could understand that. But are you concerned that every federal prisoner who wants to bring a successive or successive motion is going to claim that this falls within the traditional scope of habeas, and this would be an escape clause that will be invoked again and again and again. And all the district judges are going to have to analyze the traditional scope of of habeas and see whether the claim actually falls within that.


Kate Shaw I mean, I was listening to that with my jaw kind of on the floor because I was like, Sir, are you familiar with what you all just unleashed in Bruen? Right. District courts are supposed to be combing historical archives for analogies to rules against, like altering serial numbers on guns. And all of a sudden you’re concerned with burdens on district court judges. It seems like a pretty selective concern, Sam.


Leah Litman Yes. One district judge, Judge Carlton Reeves, suggested in a recent order that he’s considering appointing a historian to help him comb through the records so that he can actually apply the court’s historical tradition test from Bruen and assess a Second Amendment claim that’s before him. Now.


Kate Shaw For the second case in the horror show that was Tuesday is Cruz versus Arizona, which is a case about whether state post-conviction courts can decline, basically to give effect to a Supreme Court decision, because that decision corrected the state courts error that was so obvious that it didn’t result in new law. And yet the state court somehow failed to appreciate the error at the time. So the backdrop here is that the Supreme Court had held in a previous case called Simmons that states have to inform juries in death penalty cases about whether the defendant would be eligible for parole if the jury doesn’t impose the death penalty. Arizona did not inform juries in death penalty cases about whether defendants would be eligible for parole. Even though Arizona had abolished parole for felonies. Juries were sentencing individuals to death because they thought these defendants would be eligible for parole if they were given a life sentence. So, you know, facially inconsistent with Simmons. Supreme Court finally corrected that error in a per curiam summary reversal. And now the Arizona courts are declining to apply that decision to cases that have become final because they say the error was so obvious that the decision correcting it didn’t make new law. This sounds like I have said something wrong in describing the case. I don’t think I have. That’s really what this case is about.


Melissa Murray No, no. The error is going to be when they announce this decision because. This case seems to be headed for not great, Bob. I think you understand what I mean when we talk about this next exchange between Justice Alito and one of the lawyers. Justice Alito brought the same assume this is a different case, but with really different facts, energy to the argument, asking the lawyer from Arizona to look at it again. But assume for the sake of argument that the rule has always been what the Arizona Supreme Court now says the rule is, and then asked him, you know, what’s your argument now? And it was just, again, that’s not what’s happened here. That’s not what’s going on at all. And but you’ve definitely got a tenor for where he is going on this. And it’s no, we’re good for criminal defendants.


Leah Litman I did also want to note during this oral argument that Justice Sotomayor was just extremely nice. You know, the lawyer for Mr. Cruz blanked up at the podium on a case when they were asked about a case name by another justice. And at her next turn, asking questions. Justice Sotomayor pipes up with the pages of the brief on which that. He says reference to the lawyer can check it out and come ready to talk during rebuttal. And it was just something that like she did, you know, not in like a showy way, but like genuinely trying to be nice and helpful. That is not always true of justices when they were questioning advocates. So I wanted to note that and then some exchanges to highlight from the justices about whom the song question was written, because they also came ready for this argument.


Melissa Murray Here’s Elena Kagan explaining why the Arizona argument in this case is perplexing.


Clip If it doesn’t change the rule in Simone’s in Arizona, I mean, you know, maybe I’m just being simpleminded about this. But at Point Day, Simmons was not operative in Arizona. And in point B, Simmons was operative in California changing the law. Well, not every precedent has changed to some extent, but they. Well, that’s a big change. I mean, the right is not there to be invoked now. The right is there to be invoked. And that happened as a result of Lynch. No, it’s true. It should have happened earlier. But in Arizona, Simmons could not be invoked. The you know, the the defendant would have been told, too bad. Now the right can be invoked. That’s as big a change of law that there is.


Leah Litman And last question, which I’m going to pose as a question to our listeners, is this did Elena Kagan drop an Easter egg just for our listeners in this question.


Clip Bad faith or not? I think Kafka would have loved this. Cruz loses his Simmons claims on direct appeal because the Arizona courts say point blank, Simmons has never applied in Arizona. And then he loses the next time around because the Arizona courts say Simmons always applied in California. I mean, tells you in heads I lose whatever that expression is. I mean, how can you run a railroad that way?


Leah Litman I’d just like to know that we called Arizona’s argument in this case, Heads I win, tails you lose. On the last episode like Justice Kagan. Let me know when we can book you on the pod with Taylor, with Rege-Jean on your choice.


Kate Shaw Isn’t Alito going on a pause?


Leah Litman Yeah. He went on the Heritage Foundation podcast. Speaking of double standards for different justices like imagine. Right? If you.


Melissa Murray Imagine how embarrassing that is.


Leah Litman Yes. Right. So.


Kate Shaw We should was we should we should make ourselves listen to that podcast.


Leah Litman How about we delegate you to listen to it and then. You can report back to us?


Kate Shaw I’m enough of a masochist. I will


Melissa Murray I already listened to the Heritage Foundation conversation about, like, supporting the Crown.


Melissa Murray Because it’s consistent with the American Revolution already listening to that crap.


Kate Shaw And I made myself listen to Ted Cruz’s podcast when he had this kids Cruz versus FEC argument last year or so. Okay.


Melissa Murray So you’re ready you’re ready to do this now.


Leah Litman Thanks for volunteering, Kate.


Melissa Murray Way to go.


Kate Shaw This is my penance for not knowing the Daniel Webster quote.


Melissa Murray Right. So when we come back next week, we are going to highlight the big equa cases, the Indian Child Welfare Act cases. These are four cases, all sort of consolidated under the rubric of Holland versus Berkin and, you know, FBI, we have Justice Alito, who has been gunning for the Indian Child Welfare Act for some time, dying to categorize native status as a racial category, completely ending federal Indian law. And then we have, you know, wild card Neil Gorsuch. Well, his solicitude for tribal law continues. So we are going to leave those for the recaps next time and we’ll hear where all of the justices were on these incredibly important cases. And if you want to get a primer on what these cases are about, we really encourage you to listen to This Land, another crooked media podcast starring our friend of the pod, Rebecca Nagle.


Leah Litman Now for the Promise Court Culture segment, which is this the most nonpartisan, totally not ideological member of the Supreme Court, Samuel Alito, decided to speak to the totally nonpartisan, non-ideological organization, the Heritage Foundation, that is spending millions of dollars to elect Republicans in Congress. And he chose to speak to them about how the court is definitely not partizan. And the real problem are the people who criticize the court for being partizan.


Melissa Murray I guess that’s us.


Leah Litman Yes.


Melissa Murray Subtweets. Say our names. Say our names. During his speech, Justice Alito had the following to say, quote, to say that the court is exhibiting a lack of integrity, something quite different that goes to character and quote. And on suggesting that the court might have a legitimacy problem, Justice Alito had this to say, quote, I don’t think anybody in a position of authority should make that claim lightly. I’m looking at you, Elena Kagan. That is not ordinary criticism. That is something very. End quote. It is pointed directly at you criticism.


Leah Litman I have to say, I mean, first, just as a corrective, like no one is saying these things lightly. And you’re right that these criticisms are, in fact, very different now. And these criticisms reflect the fact that you as an institution are acting in different ways. And it is again, these criticisms are being made lightly and just thrown around, but are being made by people who know the institution, who follow it, who study it, and they are concerned. And hearing the speech did really give me another lens or perspective on Taylor Swift’s karma, the beginning of which goes as follows. You’re talking shit for the hell of it. Melissa, turn your camera back on. That’s not in the lyrics. So I’m going to restart that. You’re talking shit for the hell of it. Addicted to betrayal. But you’re relevant. You’re terrified to look down. Because if you dare, you’ll see the glare of everyone you burn just to get there. It’s coming back around for you. Sam Alito.


Melissa Murray My favorite Sam Alito line. Here was the following quote We follow precedent. Most of the time, I love it. I love it. Nothing to see here, folks, said the man who wrote Dobbs. We follow precedent most of the time.


Kate Shaw During his speech, Justice Alito also made the point that the leak of the draft opinion in Dobbs made the justices in the majority targets for assassination and led people to think about killing more of us. So there he’s obviously referencing the individual who was arrested outside of Brett Kavanaugh’s home with weapons in his backpack and charged with attempted murder. And this is a really scary moment. And the prospect of political violence is real and scary. Like really scary. That was really scary. Obviously, the attempted kidnaping, home invasion and brutal attack on the husband of Speaker Nancy Pelosi is horrifying. This is all these are all extremely serious dynamics. But when it comes to the Dobbs leak, it actually does seem important to make the point that Alito wants to kind of invoke the effects of the leak and the criticism of the court for the opinion as though kind of those are the only things that really matter for us to talk about when we talk about Dobbs. And to us, it’s also really important to talk about how the opinion has affected people’s lives and how it has threatened and risk the lives of the millions of women and other people who can become pregnant in the United States. And it is just extremely on brand for Alito to once again make Dobbs and Roe about him and the other justices in the majority, and to erase completely any acknowledgment of the women and pregnant people who are very materially harmed by the decision.


Leah Litman Yeah. And this speech is just another example of this pathology, which is it’s not enough for him, the conservative legal movement to win, to write the decision, overruling Roe. He also seems to think he has a right and is entitled to have everyone like a compliment him and tell him how awesome he is. No matter how he is behaving, no matter how the court is behaving like, it’s not enough for him to take away people’s rights to bodily autonomy, it’s that he expects everyone to thank him for doing so and to treat his position as reasonable and worthy of respect. It really called to my mind, like this exchange he had with Lugar in a case challenging that test and the policy of the Occupational Safety and Health Administration last term. So maybe we can play that clip here.


Clip I don’t want to be misunderstood. I’m sure I will be misunderstood. I just want to emphasize I’m not making that point. But is it not the case. That safe and effective there? And I’m not. Making that point. I tried to make it as clear as I could. I’m not making that point. I’m not making that point. I’m making that point. There is a


Leah Litman Whenever, you know, Sam Alito comes up, I keep coming back to Adam Serwer. There were who, you know, came on the podcast and is a previous target of Justice Alito’s brand of nastiness. So Justice Alito called out Adam Serwer, who is a columnist at The Atlantic. He called out Adam for describing how the court had nullified Roe when it allowed Texas as SBA to go into effect. And as Adam has said, like for Justice Alito, like he really thinks he is entitled to behave in these ways and that no one else can behave in the way that he does. And you also can’t say or acknowledge how he is behaving. And he just seems to think it’s wrong to like criticize government officials for their decisions. And it is just a really, again, like dark thing to behold.


Kate Shaw In related updates about our apolitical and nonpartisan SCOTUS, the organization American Oversight has announced that they have obtained emails regarding a June 23rd 2021 lunch that included Governor DeSantis, Justice Clarence Thomas and four clerks. Previously, this is still quote. From the press release from American Oversight. We obtained an email from that same month in which Ginni Thomas said her husband had recently been in touch with DeSantis. You know, people can have lunch like I, you know, just like let me make clear, we’re not anti lunch on this podcast. But the kind of continued erosion of the Thomas’s public position, which is that there is a firewall between their professional lives, I think is worth continuing to flag because there’s lots of evidence that their professional lives are quite intertwined.


Leah Litman So just to wrap up here, we wanted to give a shout out to Kate and my editor on the Wisconsin Law Review, who’s also a strict scrutiny listener and is working hard on a piece that we have written on the independent state legislature thing, and that is Patrick Sekulow.


Melissa Murray We also wanted to shout out our favorite I physician slash fanboy. That is Dr. Barry Farkas from New York City. We ran into your son when we were out and about this weekend, and he was gushing about how much you, Dr. Barry Farkas, loves the pod. So we love this. We’re definitely going to need readers at some point, like Justice Barrett. So, Barry Farkas, keep us in mind, we’re going to be coming to you.


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Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell with Audio Engineering by Kyle Seglin and Music by Eddie Cooper, production support by Michael Martinez, Sandy Girard and Ari Schwartz with digital support from Amelia Montooth. Thanks for listening.