Will the Government (as we know it) Still Be Constitutional? | Crooked Media
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September 25, 2023
Strict Scrutiny
Will the Government (as we know it) Still Be Constitutional?

In This Episode

Do you feel that chill in the air? It’s almost the first Monday of October and that means a new SCOTUS term! You may still be recovering from the last one (don’t worry, we are too) but Melissa, Kate and Leah talk about some themes that we can expect this term like the crazy cases coming out of the Fifth Circuit and whether government (as we know it) is constitutional. They also go through the justices’ latest questionable, and in some cases egregious (Justice Thomas, we’re looking at you) ethical lapses. So pour yourself a Ginni Tonic or Hot Ginni Toddy now that it’s fall, and settle in for this week’s live show from the Texas Tribune Festival. 

Cases we’re watching:

-Consumer Financial Protection Bureau v. Community Financial Services Association of America, Limited

-Loper Bright Enterprises v. Raimondo

-Securities and Exchange Commission v. Jarkesy

-Acheson Hotels, LLC v. Laufer

-Harrington v. Purdue Pharma L.P.

-Pulsifer v. United States

-United States v. Rahimi

-O’Connor-Ratcliff v. Garnier / Lindke v. Freed

 

TRANSCRIPT

 

Melissa Murray [AD]

 

Show Intro Mister 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 off our necks.

 

Melissa Murray Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. Where are your hosts? I’m Melissa Murray.

 

Leah Litman I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw, and we are delighted to be recording this episode live from the Texas Tribune Festival in beautiful Austin, Texas. And friend of the podcast, Sam Alito, once referred to Texas as an abstract entity. This was in an oral argument a couple of years ago, but it feels pretty real to us right now.

 

Leah Litman We are delighted to be here, even though Harlan Crow and Paul Singer did not fly us here on their personal jets or PJ’s, as we like to call them. Nor did any other billionaire for that matter. Despite my shameless attempts to beg Taylor Swift to let me on whatever is she uses.

 

Melissa Murray It’s a new Supreme Court term and both the court and let’s stay consistent, which is to say that Leah continues with her Taylor Swift thirst and the court continues with its steady drip, drip, drip of quote unquote, ethics issues. So because this is our term preview, we’re going to try and situate the court’s upcoming term in the context of new reporting that’s come out about the court.

 

Leah Litman And that includes reporting about none other than Fed stock prom king and Queen Ginni Thomas and Leonard Leo. Because while it may be fall everywhere else, it still feels like summer here in Texas, which means we’ve got time for another round of the season’s favorite cocktail, the Ginny Tonic.

 

Melissa Murray How do you make a gin and tonic? Well, definitely a splash of bitters.

 

Kate Shaw To be better.

 

Leah Litman Bitters, some grievance, some resentment, and some other things we will not say in front of a family friendly audience.

 

Melissa Murray And then you put it into a plastic bag marked unmarked and. Yeah, exactly.

 

Leah Litman Yeah. So we are going to be covering some court culture leading up to the current term, and then we’ll take stock of some big themes and cases we are watching for the upcoming term. And then we may touch on some additional court culture at the end of the episode if we have time.

 

Kate Shaw Okay, So because it is the start of the new term, ProPublica kicked things off with another bombshell story.

 

Melissa Murray That’s right. So ProPublica stays on its hustle, and we’ve heard lots of reporting from them over the last year about Clarence Thomas being flown around the country on a private jet by Harlan Crow and Clarence Thomas staying at a super luxurious home that is owned by Harlan Crow and Clarence Thomas partying at the Bohemian Grove. If you don’t know, the Bohemian Grove is an uber exclusive men’s only enclave whose members actually dreamed up the Manhattan Project back in the 1940. So they’re super secretive, super rich and super male, and he’s hanging out with them. But in between doing all of this, ProPublica reports that Clarence Thomas also found time to fly in on a private jet, naturally, for a series of fundraising events hosted by libertarian billionaires Charles and David Koch.

 

Leah Litman Yeah, So ProPublica found that Justice Thomas has attended the Koch network donor events at least twice. And they report and I quote here, quote, The justice was brought in to speak, staffers said, in the hopes that such access would encourage donors to continue giving him.

 

Melissa Murray ProPublica also got some really choice statements from former Coke staffers, including this statement describing how, quote, donors found it fascinating that Justice Thomas spoke so openly with them about his judicial philosophy at the summit. And as one source explained, quote, Donors want to feel special. They want to feel like they’re on the inside, end quote. So good for Justice Thomas for making them feel like they’re definitely on the inside.

 

Leah Litman You know, it’s really fascinating and special ethical lapses. And in case there was any question about whether this is a pay to play, a former staffer said the organization’s relationship to Justice Thomas was considered a valuable asset. So they said, quote, offering a high level donor. The experience of meeting someone like that, that’s huge.

 

Melissa Murray And it gets huger, big, bigger, if you will. So Justice Thomas has attended at least one top tier donor dinner where ProPublica reports you have to pay $100,000 to attend just to score an invite, $100,000. That better be some great check in. And at one of these Koch network events at which Justice Thomas is in attendance, the Koch Brothers network announced a new initiative to wait for it, install more conservative justices on the United States Supreme Court. But wait, it gets better. Guess who was tapped to lead this new effort to install more conservative justices on the Supreme Court? None other than a former employee of Ginni Thomas. Drink your gin and tonic.

 

Kate Shaw And because the prom king, of course, wasn’t far, Thomas’s appearance at these Koch network events were arranged with the help of, of course, Leonard Leo. In an incredibly trolly statement, Leo told ProPublica all the necessary due diligence was performed to ensure the justices attendance at the events was compliant with all ethics requirements. And in a certain way, stick with me for a second. That is true if you think there are no enforceable ethics. It’s requirements that apply to the Supreme Court. None have been violated. So I suppose there is a certain logic there, but it is definitely the case that there is a disclosure requirement that these justices are required to report activities and trips like this. The personal hospitality exception under which the justices claimed they excluded vacations and things of that sort doesn’t plausibly apply to attendance at these big network events. And these events were not disclosed even though in the year of one of the events that ProPublica writes about, Thomas filed a disclosure report that listed two other events. So this is how, you know, he knew it was dodgy. He filled out the form and deliberately excluded this one. The story also came out as the court is poised to begin a term where it will consider overruling Chevron. We’ll talk about that in a couple of minutes. A hugely important case about the future of the administrative state. And as ProPublica notes, some Koch network staff attorneys are involved in the case asking the court to overturn Chevron. But I’m sure they never, ever talk. No court business, ever.

 

Leah Litman Now, I realize some people might think this is a little concerning. I have some questions. Don’t worry, because the statements on behalf of the Coke Network told us that Thomas, quote, wasn’t present for fundraising conversations. That makes it all fine. He was just at the next table where he was sourcing Joi completely internally. That’s a reference to another story, not this one. But if you know, you know.

 

Melissa Murray Well, this does remind me of when Justice Thomas and Ginni Thomas were criticized for having Ginni having too many close associations with the court’s work, and they insisted that although they are husband and wife and live together, they never, ever, ever talk about each other’s work. And obviously.

 

Leah Litman Obviously, they never talk politics. She just texts all her friends about how the Biden crime family is about to be living off of barges on Guantanamo Bay to be tried for sedition. Yes, those were actual text.

 

Kate Shaw When he says, Ginni, what are you texting about? What do you think? She says back.

 

Leah Litman Nothing? No.

 

Kate Shaw Okay. So Thomas is not the only justice we want to bring you up to speed on today. We see you, Sam Alito, You are next. So some of you may remember that this past spring and summer with earlier waves of reporting by ProPublica and also The Times and other outlets breaking articles about the justices and the understandable questions and public outrage that started to follow, Justice Alito decided to take things into his own.

 

Leah Litman Hands, his own very clammy hands.

 

Melissa Murray Baby hands.

 

Kate Shaw We’re speculating, but this seems right. So Alito basically decided to fashion himself into a one man Supreme Court public information office, apparently feeling that the real SCOTUS press office wasn’t doing a vigorous enough job aggressively defending Alito and the other members of the court against, again, concerns and criticisms that people were understandably raising concerns and criticisms like maybe subjecting women to torture or jeopardizing women’s lives is bad. Or maybe the justices shouldn’t be accepting millions of dollars worth of travel and outdoor adventures from conservative billionaire activists with an ideological agenda they are pursuing in the courts and other such baseless attacks.

 

Leah Litman So Sam Alito decided to punch back, and among the punches he threw was an exclusive on the record interview published in one of his favorite safe spaces in the media, the opinion pages of The Wall Street Journal. Sam Alito has appeared in the opinion pages of The Wall Street Journal several times. But here we’re specifically referring to the interview Alito did with James Taranto and editor for the Journal’s opinion pages, and David Rifkin, who the piece identified as an appellate attorney in Washington.

 

Melissa Murray That may have been slicing the baloney rather thin.

 

Leah Litman There was a parenthetical later down in the article that noted, among other things, that Mr. Rivkin also happens to be a lawyer in the big constitutional tax challenge that the Supreme Court is hearing this term that we’ll talk about later more versus the United States. And among other things, that case, you know, could have the potential to affect whether Congress can enact a wealth tax. Rifkin has also issued statements on behalf of prom king of the Fed, SAC Leonard Leo in response to stories about Leo’s networks and influence and access schemes around the courts. Rivkin is also apparently Leo’s lawyer in the DC Attorney General’s investigation into Leo’s network.

 

Melissa Murray So if you’re getting the sense that this is a coordinated network, you might be right. But anyway, Justice Alito gave this hours long interview about his colleagues philosophies, as well as his views of recent Supreme Court cases and some issues in pending Supreme Court cases. To one of the lawyers who is going to represent certain interests in a pending Supreme Court case. Checks out.

 

Leah Litman You know, I mean, yeah, it does, because this is kind of like what Justice Thomas was doing for the Koch network donor event. And after Sam Alito, you know, pulled these latest high jinks, Senator Sheldon White Board, White House said, not today, sir. And he filed a letter with the chief justice, urging the chief to take appropriate actions, including ensuring that Justice Alito would recuse in the constitutional tax case.

 

Melissa Murray And the chief justice, channeling his inner Carrie Bradshaw, ghosted Senator Durbin via a Post-it note that said, I’m sorry, I can’t. Don’t hate me or something to that effect. I’m paraphrasing. But basically he’s like, Yeah, I can’t make it. I can’t make it over this across the street to Capitol Hill to testify here. Sorry, my.

 

Kate Shaw Bad. But Sam stepped into the breach and issued a statement of his own explaining why he is not recusing. And listeners, it’s a good one. So on the question about Rifkin’s participation in the interview, Sam had this to say. When Mr. Rifkin participated in the interviews and coauthored the articles, he did so as a journalist, not an advocate. So which we understand to mean he wasn’t wearing his lawyer in a pending case hat. So that’s fine. Which makes us think that when the justices are accepting gifts from billionaires, they wear their friend of billionaire or grifter hat. Not there. I’m on the Supreme Court hat, and that makes it totally legal and totally cool.

 

Leah Litman And if you didn’t read the Alito Rifkin Toronto piece, the entire piece was about the Supreme Court, the Supreme Court’s jurisprudence and the public’s relationship with the court. As Justice Kagan would say, this is slicing the baloney, awfully thin, kind of like when Justice Thomas and the Koch response was that Thomas wasn’t present for any fund raising conversations. Yeah, so it’s not great.

 

Kate Shaw So Alito concluded the statement basically by saying, look, I’m in good company. Over the years, many justices have participated in interviews with representatives of media entities that have frequently been parties before the court. Okay. But the interviews were by journalists employed. By media entities, right? The interviews were not conducted by parties to cases or lawyers for parties to cases. And in any event, any of these interviews between a justice and a member of the media, either part time or full time, has to be evaluated on a case by case basis. And Sam’s case is very, very bad here.

 

Melissa Murray It doesn’t matter if Justice Alito had a bad case because he was still going to prosecute it. So he went on to say, quote, Similarly, many of my colleagues have been interviewed by attorneys who have also practiced in this court, and some have coauthored books with such attorneys. And he noted Ruth Bader Ginsburg’s book with Professor Amanda Tyler. I’m just going to note that Justice Ginsburg is no longer alive. So not a great comparison. And Amanda Tyler is a law professor, not a litigator who practices before the Supreme Court. So also not a terrific comparison. He also noted that law professor Bryan Garner had authored books with Antonin Scalia. Again, I will note the Justice Scalia is not alive. So perhaps not the best comparison. And again, all of these interviews were publicly posted on YouTube and therefore, it’s really not the same. Right.

 

Kate Shaw Okay, we could go on. But that is basically the highlights of what Sam has been up to this summer. But we are confident that he has cooled down enough at this point to have a judicial and judicious and normal one this upcoming term.

 

Melissa Murray Right. For sure. But we haven’t covered everyone. We’ve only covered two. There are seven more. We also have the familiar drum of the justices thoughts on public engagement with the court, this time being channeled by our favorite basketball coach and justice, Brett Kavanaugh. So a few weeks ago at the Sixth Circuit Judicial Conference, Justice Kavanaugh shared his thoughts on these ethical lapses and steps that could be taken to remedy this. And when asked about efforts to revamp the court’s ethics rules, Justice Kavanaugh noted that, quote, We’re working on it.

 

Leah Litman That makes me feel better. Right. They’re trying. Therefore, no one could criticize them.

 

Kate Shaw He also did concede we can increase confidence and again said we’re working on that.

 

Melissa Murray Doing a hell of a job. A hell of a job. He’s going to run FEMA next stop. But just as Kavanaugh also said that the court was, quote, an institution of law, not politics, and that his job is akin to being a baseball umpire. Where have I heard that before?

 

Leah Litman Has Brett Kavanaugh ever had an original idea? You know, it makes me wonder. I know he loves the chief, but you don’t necessarily need to recycle his talking points from his confirmation hearing in order to convey that admiration. It did make you wonder, though, how many times a day do you think Brett Kavanaugh thinks about the Roman Empire? And while no one may remember what Kavanaugh may have ever said about the Roman Empire, their short was so profound.

 

Melissa Murray So profound, so profound. Again, number four on deck. At a separate event, Justice Amy Coney Barrett said that she welcomes scrutiny of the court. Well, Justice Barrett, have I got a podcast for you?

 

Kate Shaw So we know she’s a friend of the pot and a friend of mine.

 

Show Intro Absolutely.

 

Melissa Murray For sure.

 

Kate Shaw Okay. Before we actually turn to the cases on deck this term, we do want to mention one other piece of important recent reporting on the court. You may want to pour yourself another Ginni Tonic for this segment. Before we switch to both the court’s cases and also seasonally switch to hot Ginni Toddies for the fall and winter, which is our seasonal drink up next. But a couple of weeks ago, Politico’s Heidi Press had an incredible story about Ginni Thomas that we haven’t had a chance to talk about on the podcast. And so I wanted to briefly talk about it today. Also features Leonard Leo also involves the Supreme Court’s 2010 decision in Citizens United. Just, you know, briefly to refresh everyone’s memory, that opinion said that huge amounts of political spending do not give rise to the appearance of corruption and are perfectly permissible based on this claim. Citizens United and related subsequent decisions basically invalidated a host of laws and regulations that had previously limited political spending. That has led to enormous increases in spending in connection with elections, you know, by people with a lot of money to spend, including through anonymous donor networks, filtered through various, you know, entities with innocuous names of various sorts.

 

Melissa Murray I think I just heard something about an anonymous donor network.

 

Kate Shaw Well, I’m sure they’re all related.

 

Melissa Murray Hmm. Press Bella also reported that in the months before Citizens United and the ruling dropped, which was in general. Wary of 2010, a group of conservative activists came together to create the kind of organization that would benefit from the Citizens United ruling. Very coincidental. That is to say, the sort of dark money group that Citizens United and its progeny would turbo charge and set loose on. The political landscape was exactly what these people came together to create. And the activist who created such an organization included Wait for it. Leonard Leo and Johnny Thomas Drink again.

 

Leah Litman And it somehow gets even better. Better in quotes than that, because Johnny had a financial backer, someone who was going to give her a ton of money to spend in election and politics to hard launch this new organization. Who was that backer? Harlan Crow.

 

Melissa Murray I think I’ve heard of him. So this is all to say the timing of all of this is absolutely incredible. So Citizens United was argued in September of 2009, the next month, October 29, Cleta mitchell filed paperwork to incorporate Liberty Central, which would be Ginni Thomas’s organization. In November of 2009, Ginny Thomas signed paperwork to incorporate in Virginia with Leonard Leo as a director, Liberty Central and Harlan Crow gave the organization $500,000 in seed money. At least he didn’t send the organization to boarding school in January of 2010. The incorporation was approved, and a week later, the decision in Citizens United was announced. Hmm. And, of course, the organization’s structure morphed over time and in in part because of pushback about the close associations between Mrs. Thomas’s lobbying and her husband’s work on the court. So then much of it went underground and behind closed doors.

 

Leah Litman Ladies and gentlemen, the very independent from politics, very nonpartizan, very neutral and very ethical Supreme Court.

 

Kate Shaw All right. One last piece of business before we do turn to the term. We just wanted to mention that we are, of course, recording in Texas. You all just wrapped a state impeachment trial. And what I actually want to flag is not what just happened, but what is in process potentially in the state of Wisconsin, where impeachment talk is heating up, where the GOP legislature is escalating. Talk of impeaching justice Janet protests, say. WITTES It seems for the impeachable offense of winning a statewide election with progressive values, having not issued a single opinion in a case they are quite seriously talking about moving to impeach her. And the talk is not just talk at this point, because the legislature has hired retired Wisconsin Supreme Court Justice David Prosser to help investigate the possibility of impeachment. Some of you have heard of this former state Supreme Court justice who was accused, among other things, of physically assaulting another justice on the Wisconsin Supreme Court, current Justice Anne Walsh. Bradley. And as I recall, nobody impeached Justice Prosser over that. And yet somehow, you know, to the contrary, he is now an expert judicial ethics and conduct in the state of Wisconsin and has been retained. So we’re going to, you know, keep a very close eye on this as it unfolds in Wisconsin. But I think it’s going to get crazier.

 

Melissa Murray [AD].

 

Melissa Murray Okay. On that uplifting note, let’s turn to the upcoming Supreme Court term and talk about some themes that we think are coalescing around this term. Last year when we did this, we talked about themes for the October 2022 term. We saw the themes were pretty basic. The first theme was, is democracy constitutional? Not quite clear. Also, a theme was whether a multiracial democracy in which people of color could participate was constitutional. Also still dicey. But there are some other themes that we’re going to highlight for this term. And again, some of these will build on what we saw last term. But I just want to flag going forward. Usually the Supreme Court’s rhythms are such that a couple of blockbuster terms are followed by something more muted. So in 2021, we had. DOBBS Usually that meant the court would kind of hold back a little in October term 2022. No, they came at it again with affirmative action. So two barnburner terms in a row. This term, we don’t have the same number of high profile cases that the media and the public will immediately intuit as being really important. But we do have a lot of consequential cases that might go under the radar because they don’t necessarily accord with the standard news cycle or touch on hot button issues that everyone is talking about. So this term is going to be a consequential term. I just don’t know if the mainstream media is going to cover it as such because some of these cases aren’t likely to garner the same kind of attention. But they’re huge and they go to the very question of are we going to have a functioning government that actually does stuff?

 

Leah Litman Yeah, So that is one reason why this particular term is so significant. And the cases that kind of present this theme, you know, also can tend to sound a little technical, which also raises concerns about this potentially flying under the radar. But nonetheless, like the big issue and theme that they tee up is whether government as we know it is constitutional. And if you think about the kinds of headliner cases that Melissa was referring to from the previous term, right. Like Dobbs overruling Roe or the decision ending affirmative action, you know, overruling Roe was a promise that the Republican Party has been making for decades. Ending affirmative action has also been a part of a long term campaign. But so, too, is the stuff we’re about to talk about that isn’t necessarily as headline grabbing. And it also sounds technical, You know, as the ProPublica story that we opened the episode with noted this, that is the push against effective government as we know it is a big priority and push for groups like the Koch network. You know, if you think back to White House adviser Steve Bannon, you know, he said one of the three big platforms or pillars of the Trump administration was the deconstruction of the administrative state. And that is part of what this term is really launching into potentially.

 

Kate Shaw So while some terms have blockbuster cases, I think we’re approaching this term thinking about it as presenting a blockbuster question in various guises in a series of cases. And the big question, as Melissa and Leah just said, is the future of government as we know it. So maybe we’ll talk for a couple of minutes about three of the biggest cases that together tie up that question.

 

Melissa Murray So the first, which will be heard in the first week of the term is CFP versus Community Financial Services Association of America. And of course, the CFP is the Consumer Financial Protection Bureau. This case essentially looks at the CFP, RBS funding structure, which looks slightly different from some other agency funding structures. And the question is whether the CFP, which receives its appropriations not from Congress but from independent entities, is constitutional. I should note it’s really significant because the CFP is not the only institution that is funded in this way. Medicare and Medicaid are also funded through payroll taxes. And so if the CFP is a problem, these other entities are also similarly imperiled.

 

Leah Litman So the plaintiffs in the case, they are making a truly radical argument. You know, as Melissa noted, that the funding structure of the CFP is unconstitutional, according to the federal government. This argument would, if accepted, invalidate much of the federal budget. And that’s because the flaws that the challengers say they’ve identified with the CFP structure exist with many, many other agencies and have also been around since the founding. So the argument that the appropriation of funds to an agency needs to be in a specific sum, you know, that is done on a year to year basis would doom the 1792 appropriations for the post Office and the National Mint, among other things.

 

Kate Shaw Okay. So CFP and the future of the funding structures of lots of government entities is at stake in that case. The second case we wanted to mention is about the future of Chevron. Okay, so the case is lower, right, versus Raimondo. The plaintiffs in that case are asking the court to overturn 1984. Decision, Chevron versus NRDC. Which basically says in simplified terms that if a statute passed by Congress is silent or ambiguous on a particular question, courts are supposed to defer to expert agencies reasonable interpretations. They’re not supposed to just write on a blank slate. If an agency has already interpreted the statute. Now the valence of Chevron has shifted over time. It was actually kind of a conservative opinion in its in the first instance. Right. It was a Supreme Court opinion upholding a Reagan era regulation that was actually not particularly liked by environmental groups, in fact, was challenged by them. It was really a regulation that was a deregulation. But what the Supreme Court said was the agency in its expertise, took a question Congress left the agency to answer. And so we’re going to defer to that as long as it’s reasonable. But despite that origin, it’s really Chevron has become this kind of bete noire in conservative legal circles as just empowering agency is and thus bad. The specific issue in this case involves the meaning of a statute that authorizes a federal agency, the National Marine Fisheries Service, to require commercial fishing vessels to carry federal observers on ships. So that’s in the statute. The only question is who bears the cost of those observers.

 

Melissa Murray Now, the statute doesn’t say who’s supposed to pay for these observers, but the agency said that under some circumstances and subject to exceptions and waivers that you’d never know about. From reading the petitioner’s brief. The folks whose boats they are on have to pay for them. So that’s the argument there. I will also just note that the case seems especially curated, which is to say that these facts are really sympathetic to the fisheries who are challenging the agency’s authority here, and they’re basically the facts of the movie. Coda. As one of the amicus briefs points out, the main character in Coda is part of a New England fishing family, and there’s even a scene in which the family bemoans the fact that they have to have this federal monitor onboard their ship and that they have to pay for it. And it’s so unfair. And so it almost seems like when looking for a case that would challenge and overrule Chevron, they went looking for a kind of set of facts that would be very resonant with the public in a lot of ways. And they hit upon these fisheries in part because there is already this narrative in the public because of the film. The federal government, though, in its brief, pushes back and says that, yes, this may be incredibly sympathetic, but overruling Chevron would have enormous implications, as the government says it would be a, quote, convulsive shock to the legal system because all three branches of government regulated parties and the public have arranged their affairs for decades, with Chevron as the backdrop against which Congress legislates agency issues rules and it orders and courts resolve disputes about those agency actions. So this is a blockbuster case. It may not be covered in mainstream media because again, very technical, but this is all part of the effort to deregulate and make it harder for government to impose regulations on corporate interest.

 

Kate Shaw And just sort of one thing to make clear about the case is some regulations are a bad idea. Like nobody disputes that some regulations are oppressive, some regulations are unfair. But if we’re taking a broad and long view, the question really is on balance, do we prefer expert agencies or these nine justices to decide how we will live with each other, the safety of our foods, the storage of nuclear waste, the conditions on which monitors have to, you know, make sure we’re not overfishing our waters. Right. Any one of these questions reasonable minds can disagree about and sometimes agencies get it wrong, Right? No one is suggesting otherwise. But really, it’s these justices or agencies. And to our mind, that’s not a hard question.

 

Leah Litman Sam Alito might not know how to pronounce mifepristone, but he is pretty sure that he should be the one deciding whether a stone remains available. And while the future of Chevron, you know, might not be covered, say, in all of the mainstream media, you know, with the stakes and attention it deserves, it is covered at the Bohemian Grove. Other things are not covered.

 

Melissa Murray Leah, so spicy here in Texas, do you think the Koch brothers like Chevron?

 

Leah Litman I’m going to go with no, you know, so anyway, so the case challenging Chevron is also part of this theme about whether, you know, effective government, government as we know it is constitutional. Another case in this group is Jarkeezy versus S.E.C., the Securities and Exchange Commission, where the U.S. Court of Appeals for the Fifth Circuit identified three independent reasons why they thought the SEC’s system for enforcing federal law and adjudicating violations of federal securities law within federal agencies was unconstitutional. So we actually did an extended episode on this case with Jon Stewart on his show, The Problem with Jon Stewart. So we’ll just kind of briefly tick through the three arguments, but cover their stakes more in-depth on that episode.

 

Kate Shaw We’re also still reeling from the fact that Jon Stewart really cares about. Administrative law. So we think that anyone can make the public care. Jon Stewart can. And we will do our part to help out. Okay. So again, to briefly tick through the arguments, one is that the six administrative law judges, those are the ones who just, you know, resolve disputes inside the agency about whether there have been violations of the securities laws have to be removable at will by the president and cannot be subject to civil service protections. If that argument is successful, that would increase the partizanship of ALJ administrative law judge positions. You know, by design, they’re insulated from politics, and that’s for good reason. We want them to be independent. But no, these challengers say because they reside in the executive branch, they have to be removable at will by the president. And that’s an argument that, you know, taken to its logical conclusion, has all kinds of implications for like the existence of the civil service. Right. People in the federal government and every state government enjoy protections from political reprisal and removal if this argument succeeds. And of the three, we’ll talk about this one in some ways I think has the best chance of succeeding. It, I think could have very profound consequences for the very constitutionality of things like the civil service. The second argument is just that cases like this can’t be heard in agencies at all. They have to be brought in federal courts. And then the third is that the statute unconstitutionally delegates authority to the Securities and Exchange Commission. So that’s the non delegation doctrine that was sort of long dormant. And Neil Gorsuch is primarily responsible for reviving it and bringing us to the point where we don’t have a big standalone non delegation case this term. But lurking in the background of a lot of these cases is this idea that, you know, Congress has very limited authority to even empower agencies to do much of anything. So there’s an explicit non delegation argument in part of this case.

 

Leah Litman Yeah. And speaking about the non delegation, Doctor and you know, Justice Kagan has said, you know, if any delegation to an agency is unconstitutional, then much of government is unconstitutional because that’s just how much of our government relies on that sort of decision making and authority. So that’s one big theme that we are definitely watching for this year. Another dynamic, maybe it’s a theme I don’t know is going to be watching the dynamics between the Supreme Court and the U.S. Court of Appeals for the Fifth Circuit, because a lot of the big cases that the Supreme Court is hearing this term are out of the Fifth Circuit, where the Fifth Circuit did some absolutely bananas stuff like the medication abortion case is probably going to make its way to the Supreme Court this term. The CFB case we just discussed also out of the Fifth Circuit an important Second Amendment case, Raheny, that we’ll talk about in a second. Also out of the Fifth Circuit and others like those really involve out there, Fifth Circuit takes. And I worry, you know, that press and commentary will have a tendency to depict the Supreme Court as reasonable, measured, institutional as some combination thereof. If and when the Supreme Court distances itself from the Fifth Circuit’s particular brand of crazy.

 

Kate Shaw And maybe one other theme to highlight is the measure of how radical this Supreme Court is does not lie just in precedents overturned. Right. So, of course, Dobbs overturned Roe. That was an enormous deal. And the public could really understand how disruptive that was. But some of the cases on deck this term are such audacious, asks that there isn’t even any case law to overturn. No one has even ever sought to frame and press arguments like this. So if they win, they could, you know, destabilize large swaths of our collective lives. But they won’t involve overruling a Supreme Court case necessarily. And there’s a tendency to say, well, the Roberts court, or this iteration of the Roberts court only overturns one or two cases, a term, which is true across recent years. But that’s not the only way to measure the radicalism of this court.

 

Melissa Murray I’ll also say another theme that we should be really attentive to, and I think it’s really clear in Loper Bright, the case that may overrule Chevron. It’s also clear from last term in the student loan cases that one of the things the court is doing as it decides these cases is actually divesting other entities of authority and reinvesting that authority in the court itself. Right. So in the case that may overrule Chevron, the question is, you know, agencies are not allowed to make these decisions. Courts will make those decisions. And in Biden versus Nebraska, the made up major questions doctrine that the court adverted to there essentially allowed the court to decide what was an issue of political salience to the public on which Congress could not intervene without specificity.

 

Leah Litman It’s good to be king, right? They watch Hamilton the musical and were like that King George character, right like that.

 

Melissa Murray Channel that.

 

Leah Litman Yeah. So those are kind of general themes. Well mentioned now some additional cases that we are going to be keeping an eye on this term. I alluded to briefly the medication abortion case. So that is not yet formally on the Supreme Court’s docket yet, but it seems extremely likely that it will be the cert petition. The request for the Supreme Court to hear the case has already been filed both by the federal government and the drugmaker Danco. Again, this. Supreme Court seems really certain to take it. The only question is, you know, if they try to do anything to manipulate the timing of the case, maybe pushing it to the following term, and also whether the plaintiffs in the case, the individuals who are challenging the FDA’s approval of Mr. Stone, as well as the FDA’s relaxation of some of the restrictions applicable to mifepristone, whether they are going to file a cross petition for surgery, asking the Supreme Court to review the Fifth Circuit’s determination that their request to yank medication abortion off of the market or one of the drugs in the medication abortion protocol off the market entirely was untimely. And so it’s possible we will have a slew of all of those challenges up at the court sometime soon, and we will see what will happen there. So second case, I’m just going to note briefly, because it’s going to be heard the sitting. And so we will go back to do a deep dive. Next episode is a case called Atchison Hotels versus Lawfare. And this is a case that challenges a concept that’s known as Tester Standing, which is an important method for enforcing civil rights laws. But again, we’ll go deep on that in the next episode.

 

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Melissa Murray I just want to highlight another case that’s kind of unusual at the court because it’s a bankruptcy case, but it’s one that you might be familiar with if you’ve been watching Dopesick or Painkiller Tyler Kis forever. And if you’ve read Empire of Pain, then you know that Purdue Pharma, which is the maker of OxyContin, has reached a settlement in the significant number of cases concerning opioid abuse in the United States. And the settlement would give billions to the victims of the opioid epidemic in exchange for shielding members of the Sackler family from future litigation. What’s interesting here is that everyone who’s a party to the settlement is on board with it on both sides. The entity that is not on board with it is the United States government. So the U.S. Trustee program, which is the government’s arm for overseeing bankruptcy settlements, objects to this settlement on the ground that it puts in place a template that would perhaps allow wealthy corporations and individuals to misuse the bankruptcy system in order to avoid mass tort liability in the future. So the court’s going to have a really hard time. I think with this it presents a very anodyne question of statutory interpretation. But the equities are really interesting because on the one hand you have all of these parties to the settlement, all of whom want the settlement to go through. And then you have this question about whether allowing the settlement to go through will have all of these effects on parties who were not able to join the settlement, as well as future mass tort litigation in other areas.

 

Kate Shaw A couple of cases to flag involve blocking on social media. So folks might recall that during the Trump administration, there were individuals who had been blocked on Twitter by Trump, sued him, got a district court on the Second Circuit Court of Appeals to find. Yeah, that blocking was a First Amendment violation. The court was likely to take the case, but the election ended up moving it. But the kind of question about whether public officials may constitutionally block constituents and others from following them on various social media platforms remains alive, an important one. And these cases, two separate cases sort of t those up both involve blocking on various social media sites by local officials. So those obviously will have sort of broad consequences for kind of the interaction between government and constituents much more broadly.

 

Leah Litman So some ones that I am actually cautiously optimistic that the Supreme Court might do the right thing. I wanted to mention one case is called Pulsifer, and it is about whether the word and in the first step act means or instead of and and that question is going to affect you know, the eligibility for many people for more humane sentencing under the first step Act. And it’s extremely consequential obviously a strong textual argument favoring, you know, the people who are seeking re sentencing rather than the federal government. So cautiously optimistic there. And another case, Muldrow, is about whether some or all transfer decisions can trigger Title seven liability, which prohibits discrimination and adverse decisions in employment. And there are it seems like the statutory text kind of favors the employees and the Court of Appeals grafted an additional requirement that’s not in the text, you know, on to the law. So cautiously optimistic that those will go the right way.

 

Melissa Murray Another case you want to mention is one that Kate, briefly adverted to Rahimi versus the United States, which is a major Second Amendment case coming out of the Fifth Circuit. Rahimi follows directly on the court’s 2022 decision in Nice cerpa versus and you’ll remember that decision was announced on June 23rd, 2022. Justice Thomas birthday. It’s always awesome when you can give yourself the birthday gift of making the whole country unsafe, like Happy birthday to me. When the court announced its decision in ruin, it basically said that the new test for determining whether contemporary gun laws were consistent with the Second Amendment was whether or not individuals could show that those laws were consistent with the nation’s historical tradition of firearm regulation. And that new test has really thrown lower courts into disarray. So lower courts have really struggled to figure out whether laws prohibiting the possession of firearms in places like summer camps and other sensitive sites are okay because they look back and they realized James Madison didn’t go to summer camp. So how could we prohibit a gun there? And so again, Rahimi concerns a similar kind of problem. Zaki Rahimi was in 2019 made subject to a domestic violence restraining order because he assaulted his girlfriend. He violated that restraining order by firing a gun in public twice and also assaulting someone. He’s then charged with possessing guns in violation of that restraining order. That’s a federal crime. He now argues the crime under which he was charged and convicted for improperly possessing a gun is actually unconstitutional under the court’s decision in Bruin. And here’s the great part. His rationale is we have no historical tradition of disarming individuals. You have been convicted of DV offenses. And he’s right. We don’t have a tradition of that because restraining orders for domestic violence and indeed domestic violence as a crime is a relatively new concept dating from only the 1980s. So for much of our history, it wasn’t a crime for men to abuse their female partners. And of course, we weren’t taking guns away from people who did so. But that’s the test that Bruen prescribes. And so the question for the court is, are they going to ride Brewin to its inevitable result, or will they use Rahimi as a vehicle to maybe pull back and provide some limits?

 

Kate Shaw So so that I think is the question, both as did this particular statute, but the method more broadly by which every gun regulation will be judged is going forward. So is the court going to blink somewhat, going to be unable to live with the consequence that its test clearly invalidates the disarmament of violent abusers? So will it stick with that or will it blink and modify the test maybe by saying something like, okay, fine, you don’t have to find a perfect historical analog to the law that is being challenged. You don’t need to have a law you can point to from the late 18th or mid-19th century that looks like this one. But if you can find a general antecedent or analog that looks close enough, if we have, say, a historical tradition of disarming violent individuals, maybe that’s enough to justify or save a lot like this. So on the margins, that would help in this case and some cases. But to my mind, the fundamental problem is the court’s insistence on yoking us to the past. Right? That’s true in Brewin. That’s true in Dobbs. That’s true in many other cases. And tweaking the Second Amendment test on the margins does not in any way solve that core problem.

 

Leah Litman It wouldn’t. But if they do tweak the test and modify it a little bit, I will forever call it bringing the squish.

 

Melissa Murray If you know, you know.

 

Kate Shaw Another case that would be an under the radar case, if not for Sam Alito’s temper tantrum of a non recusal statement that we talked about a little bit earlier, is the wealth tax case more versus the United States? And I’m actually glad about his temper tantrum of a non recusal statement, because I do think it means people will pay attention to this case and maybe they wouldn’t otherwise. The case basically ask the court to conclude that the 16th Amendment, the income tax amendment doesn’t allow the taxation of unrealized gains. If these challengers win, that would presumably invalidate a number of provisions in our tax law, not like our big income tax law, but our tax law in various places. Does tax unrealized gains. That includes the provision of law. At issue in this case, which was like a little part of the 2017 Tax Cuts and Jobs Act, and these plaintiffs only have about $15,000 at stake. But the same provision in that 2017 law taxed a bunch of big multinational corporations to the tune of several hundred billions of dollars. And winning in this case would presumably also throw into questions other aspects of existing taxation. But as importantly, it would tie the hands of future policymakers if they did say, want to enact more progressive taxation schemes. So of course, that is the deep goal of the individuals who have brought this lawsuit.

 

Leah Litman And just because of the absurdity of our legal system, there’s at least one amicus brief filed on behalf of the challengers by a Burning Man PARTICIPANT So there we go. So that’s kind of the wrap up of, you know, our look ahead to the Supreme Court term will obviously be discussing more individual cases, more in depth. You know, when we do the individual session and sitting previous, we did want to note some additional court culture, several of which is Texas focused, one of which is there has been another decision in the ongoing litigation challenging the Deferred Action for Childhood Arrivals or DACCA program. So on September 13th, Judge Hayden ruled Dacca unlawful. Once again. That decision bars new applications for Dacca. Those who had Dacca before 2021 or who stuck a lapse for less than a year can continue to apply for renewal. This decision invalidated the Biden administration’s attempt to, you know, create Dacca through an official rule rather than an enforcement memo. This case is likely going to the Fifth Circuit and then to the Supreme Court, though probably not this particular term. And that’s in part because, you know, the court did stay the ruling with respect to people in the DACCA program right now, meaning that they will not lose their Dacca benefits. And this is going to be resolved, you know, when the case inevitably reaches the Fifth Circuit and the Supreme Court, in which case like it could jeopardize people’s current Dhaka status.

 

Kate Shaw We also wanted in particular, since we’re in Texas, to provide an update on the Zborowski litigation, that’s litigation seeking to clarify when doctors are able to provide abortions in cases of medical emergencies. So the Texas Supreme Court will hear arguments in that case. In late November, the Texas trial court issued an injunction preventing abortion bans from being enforced in cases where the doctor concluded that the patient’s life or health required it. We played some really wrenching excerpts from trial testimony in an episode of. For the summer. So that case resulted in this injunction. But the injunction was then stayed because the state immediately appealed the order. And the Center for Reproductive Rights, which brought the Borowski case, has brought other similar litigation in states like Tennessee, Oklahoma, basically to clarify when exceptions for medical emergencies are genuinely available. So the litigators, I think, are doing incredible work. We will, of course, see what the state high court here and in other states does. And we are going to bring a bunch of expert litigators in for an in-depth discussion of that strategy in an episode coming up. So stay tuned for that.

 

Leah Litman And then the final thing is just, of course, there is ongoing litigation challenging Alabama’s redistricting in the wake of the Supreme Court’s decision in Allen versus Milligan, which ruled that Alabama’s failure to create a second majority minority black district violated the Voting Rights Act. Alabama came back, drew another set of maps that also did not create a second majority black district. And the three judge district court concluded no surprise that those maps violated the Supreme Court’s order directing Alabama to do what Alabama refused to do and also violated the Voting Rights Act. They had some really choice words for Alabama, noting that they were disturbed by what the state had done and struck by the extraordinary circumstances of the case, saying they weren’t aware of another time when a state legislature faced with the federal court order, you know, basically justified it entirely.

 

Melissa Murray Nevertheless, Alabama persisted. So the state is hoping.

 

Leah Litman Or resisted, if you will.

 

Melissa Murray Good one. Alabama is hoping to take another run at the Supreme Court. And in particular, they are taking aim at Justice Kavanaugh. You’ll recall that Justice Kavanaugh supplied the crucial fifth vote to find that Alabama had violated the Voting Rights Act and diluted the voting power of black Alabamians when it drew its congressional map in last year’s case, Allen versus Milligan. But he also filed a separate concurrence, perhaps suggesting that this whole question of racial gerrymandering really did have a sunset limit, kind of like that affirmative action thing, you know. So again, Alabama is got Brett Kavanaugh on the line and they’re going to shoot their shot.

 

Leah Litman Yeah, it is, of course. And would be right craven, cowardly, unprincipled for Justice Kavanaugh right to all of a sudden reverse his vote in this very same case involving, you know, the very same defendant and whatnot. I don’t think he will do so. But right at the end of the day, it’s not actually clear. You know, I don’t think anyone can be 100% confident about that, which is in some ways a nice, horrible encapsulation of where things stand on the current Supreme Court.

 

Melissa Murray So as you can see, we are in for another rollicking term with the nine members of the court. We said nothing about our three favorite Supremes, Justices Sotomayor, Kagan and Jackson, but they continue to be Queens. Stay on your hustle, ladies. We’ve got you. But there’s so much to look for. So we hope that you’re paying as much attention to the court as we are. And we would just like to say thank you to Evans-smith and Seol Chan and the folks at the Texas Tribune for the opportunity to be here with you all today. We will note we are not from Texas, but as you all know, we got here as soon as we could. Thank you.

 

Kate Shaw With the upcoming SCOTUS term. Now is the perfect time to stock up on and I respectfully dissent. T-shirt. You can now look stylish while also wearing your judicial opinions on your sleeve. Available only at crooked dot.com forward slash store head there now to shop. Strict Scrutiny as a crooked media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw, produced and edited by Melody Rowell. Ashley Mizhuo is our associate producer. Audio Engineering by Kyle Seglin, Music by Eddie Cooper. Production support from Michael Martinez and Ari Schwartz and Digital support from Amelia Montooth.

 

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