Not Especially Judicious | Crooked Media
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October 09, 2023
Strict Scrutiny
Not Especially Judicious

In This Episode

Kate, Melissa, and Leah recap oral arguments in the cases the Supreme Court heard last week, including Acheson Hotels v. Laufer (a case about civil rights enforcement) and CFPB v. Community Financial Services Association (a case about the constitutionality of funding structures for financial agencies). Plus, more Voting Rights Act shenanigans.

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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.


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


Leah Litman I’m Leah Litman.


Melissa Murray And I’m Melissa Murray. And today, we’re going to do a deep dive on the recaps of the arguments the court heard last week. And we’ll briefly flag some cases that the court will hear this week before we get into some court culture. And there is a lot of court culture to dig into. So we’ll talk about the cases from this upcoming week in more depth next week when we recap them.


Kate Shaw So let’s kick things off with Acheson Hotels versus Laufer. This is the Tester standing case. That is a case about whether testers who identify hotels that don’t post accessibility information can sue under the Americans with Disabilities Act or ADA. Tester standing, as we noted in our last episode, is a very important method of civil rights enforcement, and the court has previously allowed Tester standing in previous cases.


Leah Litman So here the Defendant Hotel in this case is seeking to narrow the availability of tester standing and to eliminate it in these kinds of ADA cases where a hotel doesn’t post accessibility information on a website. So the defendant says there would be Tester standing if a plaintiff actually tried to go physically to a place of business. And some of the justices seem sympathetic to that distinction. But I wasn’t totally sold on it because, you know, you might want to check whether the hotel has accessibility information before you go to the hotel. On top of that, so much stuff happens online today. Like online is the forum for checking out a hotel you’re considering going to. So I wasn’t sold on the distinction, but it was what the defending hotel was offering.


Melissa Murray Well, going online might also be especially important if you are someone with a disability.


Leah Litman Right, For accessibility info.


Melissa Murray Getting to places might be hard. Yes. This case is about Tester standing and the plaintiff respondent in the case voluntarily dismissed her claims, meaning she filed papers in court saying she no longer wants to pursue this case and meaningfully the hotel after the case was filed also posted the desired accessibility information. And so all of these things together means that there is a really big question about whether this case actually presents a live case or controversy or whether it is moot and whether the court should even decide if the plaintiff has Tester standing and can pursue this kind of claim. Since the plaintiff is now trying to dismiss her case and end it permanently. So lots to talk about.


Leah Litman One of the biggest judicial supremacists on the court, that is the chief justice, was pretty annoyed that the plaintiff would dare try to stop the court from ruling all of us or at least ruling on this matter. So let’s play that clip here.


Clip The mutinous question of whether or not a plaintiff can moot a case to manipulate the jurisdiction of this court. I mean, the mutinous papers weren’t filed until after the petitioner’s opening brief.


Leah Litman And by judicial supremacy, we just mean the idea that judges should be the ones resolving all of these issues, you know, constitutional questions like who can sue, you know, if Congress has authorized someone to sue? You might say, well, that is sufficient to allow that person to sue. But a judicial supremacist would say, no, like we courts actually need to be the ones to decide the issue. And as we noted in the last episode, you know, judicial supremacy kind of worked out in favor of civil rights in the Alabama case, since the justices were not keen on the idea that Alabama could defy their previous decision in Allen versus Milligan. But there again, it might have been judicial supremacy doing a fair amount of the work. And that’s not always going to cash out in favor of civil rights.


Melissa Murray Unlike the chief justice. Justice Kagan was pretty sure that this case was moot and the federal courts and this court in particular should have nothing to say about it. So here she is.


Clip I mean, it still feels a bit on judicial, if I may say so, that the question is not just resources, but something broader than that. And I take the point that each of these is a jurisdictional issue and that there’s nothing jurisdictional precluding us, that this is a matter of prudence. But when you look at a case that’s dead as a doornail several times over, you know, the case has been dismissed by the plaintiff. The defendant is totally different. The defendant’s website, everybody agrees, is now in compliance with the ADA. So this is like dead, dead, dead in all the ways that something can be dead. And to use that case as the vehicle for deciding an important issue, an issue that probably is going to need to be decided at some point, but surely can come up in a life case. I guess it just doesn’t seem like something that a court should should be anxious to do.


Kate Shaw Justice Sotomayor struck a very similar note.


Clip I’m sorry. I don’t know why you have and haven’t answered my question. Why isn’t this purely advisory? Once there’s no longer a life controversy between the parties before us.


Leah Litman I like dead. Dead, dead. I’m just going to start like, referring to that like as basically all of the theories this court is trotting out, like that one’s dead. Dead, dead, dead, dead, dead.


Kate Shaw Dead, cubed or to the third power. I thought that was also kind of useful. Yeah, we may. We may bring those back later in the term.


Melissa Murray I honestly. Merchandise opportunity.


Leah Litman Dead, Dead, Dead, Dead.


Melissa Murray So, one of you Strict Scrutiny listeners slid into our DMS to ask a question. And then another one of you who didn’t want to get cheeky in the DMS decided to just hit us up on Twitter with the same question. So since so many people had this question we thought we would answer and the question is this. How is the current case, Acheson Hotels different from 303 Creative? And the listener goes on to say. Not to say that 303 wasn’t deranged range, but as a non-lawyer, I sometimes don’t understand the legal parameters of testers pose hypotheticals and have standing for good reasons. As you explain. Did 303 not have standing? Two I’m assuming that even bigoted Evil Mofo is their term, not mine can have standing in some cases. And that’s the end of the day. Wow. That’s a whole question. What a lot of layered in it. So let’s unpack.


Leah Litman So there are several distinctions between three or three creative and tester standing. One distinction is the fact that in three or three creative through or through creative alleged that they, as a business, would be personally subject to legal penalties if they violated the law. Whereas in test or standing cases, you have a plaintiff who says like, it’s not that we are going to face penalties for violating the law, it’s that we are protected by the law and authorized to sue under it. And that gets to the second distinction, which is in the tester, saying in cases you have a statute that the plaintiff says, you know, specifically authorizes them to sue for this violation. On top of that, the case or controversy dilemma in three or three creative was partially about the fact that you had a business that was not yet a wedding website business, and therefore it wasn’t clear what sort of wedding website they might make. Therefore, it wasn’t clear whether they would be in violation of the statute or what kind of services they could offer to same sex couples. And it was that lack of clarity, the fact that we didn’t know exactly what this business was or what any violation might look like that was causing a lot of the problems in the case.


Kate Shaw There is a real range of views about how expansive Congress’s authority to even create the ability to go to court and sue should be understood to be. Lila alluded a couple of minutes ago to judicial supremacy. Right. There is a view that basically Congress has very limited, if any, authority to pass statutes that create rights of action, that give individuals the power to go to court and sue. I think at least I and I think that probably all of us think that Congress should actually have pretty broad latitude to create not just to define, but also to create types of injuries that federal courts are bound to recognize. And that’s something that says Congress has an important role. It’s not just courts that sort of begin and end the conversation about our rights and their enforcement. And so I think that the question sort of implicates that kind of broader debate about how much power Congress should have to actually create standing in the first place. And then maybe one more point, just in terms of what Leah said about all of the open questions that the lack of a live business in three or three creative created, I think in many ways are a perfect illustration of why it is so dangerous for courts to decide cases where the dispute is. So when any potential injury is so speculative, you know, the court just doesn’t give guidance about what the nature of this business is in a way that might enable future courts and litigants to understand the limiting principles, if any, and three or three creative, what kinds of businesses might and what might not be subject to the rule that it sets forth, because there just wasn’t the kind of factual development that litigation ordinarily results in that would tell us, like, what kind of what is it to design a website, How creative is it really? Like, how expressive is it really? All of that was bulldozed over in the court’s eagerness to get to the substantive question. So we just don’t really know how three or three creative applies. And that, I think, is a reason that it was really important for the court not to reach, to find standing. In that case.


Leah Litman The business was, as they said, dead, dead, dead. So bringing it back to this dead case. Any predictions on what the court is going to do in test are standing? You know, honestly, after the argument, I thought there were five votes and maybe even six at some points for the idea that this case is moot.


Leah Litman This is a pretty moderate court. Very moderate court. This is not  three, three, three court. Coalition building?


Leah Litman Right. And those three, three, three, interestingly seem to be the three Democratic appointees. And then some combination of Justices Alito, Thomas and Kavanaugh, who seem to think the case is moot and should be resolved on that basis. And I’m not joking.


Melissa Murray A neo liberal.


Leah Litman Like I am not joking. Like Sam actually came pretty hard at the petitioner, a defended hotel for arguing, you know, that the case should be resolved on tester standing grounds rather than mutinous.


Clip Suppose that there’s a case that involves an issue that has divided the courts of appeals. There is an entrenched split. It would be helpful to provide guidance on this issue and not. Allow the split to persist. But the case before us is dead as a doornail and is not going to arise again between these parties. Would you say there that for the prudential reasons that have been mentioned, it would be permissible for us to decide the issue?


Leah Litman And I just wondered like, is he concerned that his colleagues are going to continue bringing the squish butt on Tester’s standing? Another possible explanation is that sand is just in an oddly good mood that day and therefore able to register law.


Melissa Murray Are the girlies doing that?


Leah Litman I wouldn’t know since Travis Kelce doesn’t play on that team. This is like at one point during the argument, like Sam invoked Justice Breyer to laughter.


Clip Let me give you a hypothetical of the sort that our former colleague Justice Breyer, might have asked. So let’s say I am I am driving to a dog show and I am transporting my champion, Saint Bernard, and I want to check into a hotel with my dog.


Melissa Murray However, if they dismiss, the case is moot, as the justices seem to want to. I want to be very clear. I don’t know that we’re necessarily done with Tester’s standing. I think we’re just done with this dead, dead, dead case. And some of the justices seem to be sending a warning shot that even if this case is dismissed on mutinous grounds, they are eager and ready to take on a better test or standing case that would provide them with a cleaner opportunity to actually eviscerate civil rights enforcement.


Clip I think the chief’s question was, next time, we shouldn’t do this. Do you agree?


Melissa Murray So this just isn’t the vehicle, but it’s coming and they just they’re ready when it comes.


Kate Shaw So we should also note, because I think we haven’t said this, that actually the petitioner defendant doesn’t dispute that the case is moot. They just say the court should decide standing anyway. So basically, everybody agrees that the case is moot. The ask is just even though this case is dead, dead, dead, you should still find that Miss Lawford didn’t have standing, because that’s also jurisdictional. And the court actually can choose which order to address these questions in standing first and then muteness or muteness first and not get to standing. And the ask is it’s a prudential determination. The court can make it. And so the court should choose to address the standing question. But as Joseph.


Leah Litman What is dead may never die.


Kate Shaw But as Justice Kagan said in response to this argument, it seems pretty non judicious for the court to stretch to decide the standing question when muteness isn’t disputed, when everybody agrees there isn’t a currently live controversy between the parties. And actually, to my mind, and this is sort of implicit in what you were just saying, Melissa, about the kind of warning shot some of the justices seem to be issuing. It seems like it would be especially injudicious to reach to address standing if the reason you’re doing that is basically out of sheer spite, because you think it is unseemly that Miss Law files lots of lawsuits against noncompliant hotels and you basically want to teach her a lesson by finding she lacks standing. I mean, I do think no one explicitly made that claim, but there were threads of that in some of the arguments for deciding the case on standing grounds. Even though everyone thinks.


Melissa Murray She’s a troll, they think he’s a troll, a litigation troll, and there are nor takes.


Leah Litman One to know one for Alito. Yeah, the Supreme Court, despite, you know, the idea that the court is in the business of like teaching people lessons or teaching the country lessons, I mean, they kind of, right especially ladies. This is kind of like infamous line from the court’s Affordable Care Act case, the, you know, joint dissent, NFIB versus Sebelius. You know, that talks about the court needing to like, teach the country a lesson about the importance of limited government by basically taking life saving health insurance away from millions of people. That’ll teach them. So.


Melissa Murray You’ll be dead, but you’ll know civics.


Leah Litman Dead, dead, dead.


Kate Shaw But appreciate the majesty of our separated powers, understanding that appreciating that as in your final moments, that’s the most important thing.


Melissa Murray Just to underscore the whole idea of firing warning shots about what’s coming down the pike is by itself a real flex and not especially judicious, but.


Kate Shaw Not especially judicious, might be another merchandizing opportunity.


Melissa Murray Oh, that. Yeah, that’s a good. Yes. Yeah. Like robes, Robes, A gift robe. Yeah. Sponsors Crow industry.


Kate Shaw All right.


Kate Shaw The next case we’re going to discuss is Pulsifer versus the United States, which once again is the case about the meaning of a provision of the First Step Act, and specifically who is eligible to be sentenced under the safety valve provision of the Act, which provides for discretionary sentencing rather than mandatory minimums.


Melissa Murray The safety valve provision is available to those who are convicted of nonviolent drug offenses if they don’t have criminal history points from a four point offense, a three point offense and a two point offense. And the question in this case is whether the and means literally and or whether it means or. At argument the idea that and means or was referred to as the distributive meaning of. And I think because this is just such a bonkers kind of question but yes the distributive meaning of and is that and means or this question could affect thousands of cases and maybe hundreds of years of incarceration, if not more. So what and means really does matter.


Leah Litman As we noted in the argument preview Neil Gorsuch is métier is most definitely textualism. He gave the government a hard time as the government was pressing for the idea that and should not have. It’s ordinary meeting.


Clip You’re saying, hey, Congress wouldn’t have done this because it wouldn’t capture some bad people. That seems to me at heart one of two things either an argument about intent. Congress couldn’t have intended this, wouldn’t have intended this because it wouldn’t want bad people to get away. Or two, it’s a policy argument. You shouldn’t want this to happen. And either of those seem to me straining at least your claim that this is all consistent with textualism, especially since you haven’t identified a can other than absurdity. That would be kind of a classic textualist argument.


Clip Well, with respect, Justice Gorsuch, I think we are relying on a traditional to a construction that this court.


Clip Relies on, which is what is called common sense in your brief. I don’t know that, Cannon, but I guess it’s a good one.


Clip It’s called construing the structure and the text of this statute gleaning the evidence, purpose, purpose.


Clip So it is purpose honest.


Clip At some level. Yeah.


Melissa Murray Is it weird that I kind of agree with that?


Kate Shaw But substance? Yes, but he’s just so weird. He can’t say even reasonable things in a good way.


Leah Litman Even when I agree with him, he is making it weird and making it worse. Yes, that is an Olivia Rodrigo reference. And there were times when he actually did kind of keep that in check and was helpful, like when he offered a long rephrase of the petitioner defendant’s argument during the serious format of the questioning where the justices take turns. We’re not going to replay that in its entirety here, but here was the petitioner, defendant lawyer’s response after Justice Gorsuch kind of outlined the argument.


Clip That summation was better than my introduction. And I think you’re missing I think, Justice Gorsuch.


Leah Litman I have to say the petitioner defendant got a harder time from the justices than maybe I was predicting. I don’t know if that’s because it was like the first argument of the term and the justices were just into it and wanted to press both sides. I know I said Sam Alito was going to be running corpus linguistics searches to prove that and can mean or but Amy beat him to the punch and invoking these corpus linguistics searches during the oral argument.


Clip So what about the corpus linguistics brief that says in 38% of the time I understand and you rely heavily on the fact that over 50% of the time people understood it and it’s joint sense, but 38% of the time they understood it and it’s distributive sense.


Leah Litman Although Sam did invoke them here as well.


Clip This case, to me raises a lot of general questions that may not dictate a decision one way or the other. But on this last point about the Corpus linguistics brief, we have, I think this is a very promising tool.


Leah Litman Maybe we should explain what Corpus linguistics is. So Corpus linguistics.


Melissa Murray Something cooked up in a conservative meth lab. Am I wrong?


Leah Litman Umm so I think often you are right. I’ll explain why that’s not necessarily the case here in a way that I find like slightly irritating. So Corpus linguistics searches is just the idea that you basically take a term and you run through anthologies of texts, you know, whether it’s dictionaries or just, I don’t know, articles or compilations of words or here like a survey where you give people a bunch of different phrases and you say like, Well, what does the person mean like does and mean? And here or do they mean or, you know, and whatnot. And I just think that like, this is sometimes maybe even often, but like definitely here a kind of insane way. To try and figure out what ad means, because it’s utterly it’s utterly decontextualized. Right. Like, you can substitute and into a billion different combinations. And when you ask someone, well, what do you think it means here? You have no idea what they are imagining themselves, the audience to be. You don’t know what they are imagining the speaker to be. You don’t know what sort of assumptions they are making. And it’s like, Well, here we’re dealing with a criminal law that could impose like a bunch of years on people and like the ordinary meaning of and is good enough. And it’s just I don’t understand the need to do these flexes where like you know of course we noted on the last episode that yes and isn’t necessarily always going to be meaning and especially when you’re talking about conversation. But again this is like a criminal statute with a bunch of penalties like don’t read me a bunch of surveys that ask someone like well, what do I mean when I say this phrase, I don’t care.


Kate Shaw Yeah, a couple of thoughts on Corpus linguistics. I think that the kind of intuition that I mean, I agree it feels like pseudoscience a lot of the time, but the intuition that I think underlies it, which is it’s actually not great for the justices just to always draw exclusively on their own personal conversational experience and say, everyone knows how X is deployed and to try to bring some methodological rigor. So it’s not just the justices, you know, adverting to their own like idiosyncrasies and intuitions or kind of randomly cherry picking from like history and literature, the use or appearance of particular words. So the idea like is we put together these large databases and actually run through them and figure out how language is actually used in particular context, a particular moment in time. I’m just saying like that is a charitable characterization. I think it might have some value. I think certainly if the context is the word and whether we’re talking about database searches or survey results, that’s preposterous. And so I think that there is limited utility. And I think I’m not at all suggesting that this is should be an important tool in statutory cases. But I think that the idea that trying to bring actual usage of language into the way the justices understand statutory terms might depending on how it’s done, be constructive.


Melissa Murray So here’s here’s my beef with corpus linguistics and I think again cooked up in a conservative meth lab of grievance, like the whole debate about algorithmic justice, it’s like data that goes in can be garbage and it will spew out garbage. So everything kind of depends on what the corpora it was like, What are the sources on which you’re drawing? And it’s not entirely clear to me that it is as broad based as what we are is identifying like surveys from different people. Which people? Who? What dictionaries? What anthologies. And so again. It’s sort of like the scam that is originalism like presented as this sort of objective thing. We’re just going to go back and look at what this meant in 1789 or now we’re just going to go back and run a program. It’s going to tell us what it means at time one and for everyone else. But it’s not objective because you don’t know what the sources are. You don’t know how it’s being deployed. And in the same way that originalism is not objective because it’s not actually a real thing. It’s cooked up in the Meese Department of Justice meth lab of conservative grievance, the end and that dead, dead, dead rant.


Kate Shaw And to be clear, I was not disputing sort of any of that. I just think in the abstract there it would be. I thought.


Melissa Murray You were being charitable as you always are


Leah Litman Decontextualized corpus, linguistics as corpus linguistics, decontextualized. You can get something out of it.


Melissa Murray I expect nothing less from you Kate the most generous charitable readings.


Kate Shaw Just doing my best.


Melissa Murray That Leah and I will then take a crap on.


Kate Shaw That’s basically the script. Okay, so back to the poles of our argument. So there was this invocation of Corpus linguistics. One notable observation I think we all made during that argument was that Justice Kagan was much more sympathetic to the government than we expected going in, or at least than I expected going in. She also described or maybe recharacterize the government’s argument in a way that seems worth spelling out since there is a chance the court might adopt it, right? Kagan basically said, Well, what if Congress had in mind a version of the statute that obviously meant the distributive meaning of and right where and would mean or but then Congress just rewrote the statute to be more efficiently worded, but still meant to retain that core, meaning that and means or.


Melissa Murray I mean to be I just wanted to say here to be more efficiently worded you took out or or is two letters.


Leah Litman To more efficiently like lock people in jail for like millions more years like they’re not allowed to just like officially cut corners. You got to be super clear in doing so, right. You got to carry it through.


Melissa Murray All right. So just to say, Justice Kagan seemed to be positing that what Congress had in mind was something like the defendant is eligible for relief if he does not have for criminal history points, does not have three criminal history points and does not have two criminal history points, which the petitioner, defendant conceded would be the distributive meaning of. And and then Justice Kagan followed up with Congress, rewrote that version to have a single. And she also argued that the conjunctive reading so this is different from the distributive reading. The conjunctive reading is where and means and I call that the actual. Meaning of cancer. But we digress. She argued that the conjunctive reading is common and often does mean and where the harm arises from some inter-relationship between the items on a list like drinking and driving, for example. But she said, the distributive meaning arises where the harm is independent. And she seemed to think that the 2.3. and four point criminal history points are themselves independent harms.


Leah Litman But again, like given how minor to point and three point offenses can be, it’s not clear that they are independent enough harms by themselves that would lead Congress to retain this mandatory minimum scheme that they were trying to meaningfully adjust and substantially depart from in the first Step Act. Whereas I think someone with like two points, three points and four points captures someone who is like all the fuck over the criminal legal code, right? And like someone who is just like driving left and right and doing all kinds of crimes who maybe has like different felony counts in like many different jurisdictions, I don’t know. But the chief justice also pointed out that, like, even if you granted that drafting history or what Congress might have in mind, there actually isn’t another statute that lists eligibility criteria like the first step does in the negative that has been interpreted this way where and means or so. This really would again be a departure from what laws, statutes, words usually mean.


Melissa Murray Not just in statutes.


Leah Litman In the Corpus.


Melissa Murray Correct.


Kate Shaw Lots of expectations defied. I think, going into this argument or coming out.


Melissa Murray Really hard argument, I have to say very hard.


Kate Shaw Sam did have this oddly welcome interjection. So let’s play that here.


Clip I think that the move to textualism and our interpretation of statutes was enormously beneficial and it eliminated a lot of abuses that previously occurred. But in the end we are just interpreting language. Everybody, I assume in this courtroom today speaks the English language, and all we’re trying to do is understand some words in the English language. And it just seems to me that a lot of these arguments that we’ve heard, I mean, the people here who haven’t studied the case must think this is this is gibberish. You might as well be it might as well be Greek with all this stuff about distributive and mediation, all of that isn’t necessarily that complicated.


Kate Shaw I guess kudos to Alito for saying what shouldn’t have to be said, but that like we’re just interpreting language and many of the claims of textualism are, you know, a little bit overstated, even though, of course, he starts by offering this kind of pean to textualism as having radically improved the interpretation of statutes, but with him sort of seeking to simplify at the end of the quote that we just played, I just you know, ordinarily for him, simplicity would seem to cut in the direction of the federal government getting what it’s asking for it, meaning fewer people qualifying for relief under the first Step act. So I’m just not positive. I know how simplicity will cut. But we’re talking about Justice Alito. And since were on Justice Alito, he also had this weird moment where I don’t know what journey he’s on with textualism right now, quite honestly. But he he seemed to be sort of denigrating the absurdity canon, which typically even, you know, hard line textualist like Gorsuch and Kavanaugh and Barrett, they reference during the argument and they have suggested that that’s an important principle. So here is that Alito exchange. And then maybe let’s talk about it for a minute.


Clip On another point, do you think the absurdity can and is about anything other than intent?


Clip I think it is partly based on this assumption that Congress is a rational and intelligent drafter of of statutes. And so when we see a.


Clip Result that is absurd.


Clip We presume that that is not one Congress meant to.


Clip Embrace. It’s an intent that’s attributed to Congress. We we assume that they do not intend to write something that’s absurd. Correct? Right. So it is about it is about intent.


Clip It’s a it is about intent. And it’s its intent against the backdrop of a body Congress that we presume objectively.


Clip To be reasonable. And if that is the case, why would we draw a bright line between absolute absurdity and near absurdity?


Kate Shaw So, you know, this is a point that absurdity as an idea that, you know, even if you’re a textualist, if the literal meaning of a statute would produce a truly absurd result, you’re not supposed to adopt that reading of the statute that has long been a canon. The textualist have accepted. Folks like John Manning have written articles, you know, many, many years ago criticizing the absurdity canon as fundamentally resting on intentional lest and thus forbidden assumptions or principles. It was an interesting moment. Me totally know where he was going with it, but it called to mind a point I’d actually been wanting to make about this term, which is that there is going to be a. Decent amount of shadowboxing with Justice Scalia. And I think there’s a decent chance that positions of his are likely to be disavowed. And that is as stark an indicator as any of how far the court is moving. Right. So Justice Scalia, really the father of kind of the modern new textualism, always agreed, although he didn’t use it all the time. That absurdity and the absurdity can and was legitimate. And you know, six years ago, five years ago, three years ago, we had the Trump appointees kind of fighting to wear the crown. Right. Like as the true heir to Justice Scalia. And now.


Melissa Murray I’m the heir of Slitherin. No I’m the heir of Slitheren.


Kate Shaw Wasn’t that the dynamic?


Leah Litman Yeah. In Bostock, the title seven case. Justice Scalia would have been with me. No, he would have been with me.


Kate Shaw Yeah. And this is just how fast things are moving. They’re now angling to out textualist him and looking to later in the term. I think they’re likely to disavow Chevron, which is an opinion he embraced and defended. They’re looking to lock in, expand. I mean, I don’t know if this will succeed, but at least some of them are going to try to lock in expanded gun rights, even in instances that Heller. Clearly Heller. Scalia’s opinion in Heller clearly contemplated gun rights wouldn’t be available. That’s, of course, the Rahimi case. So I just think the fact that Scalia is the new liberal squish on the court, at least I think that’s what that is one emerging theme is really important. And again, an indicator of the speed and the magnitude of the change that is afoot.


Leah Litman Justice Scalia was a well-known rhino. Little known fact.


Kate Shaw I think they basically.


Leah Litman An original Rhino.


Melissa Murray Kate, you said a whole word. But the thing I’m most interested in now is the documentary Shadowboxing with Justice Scalia, which I hope Dawn Porter is listening to as well, immediately put into production. More generally, a lot of the justices and Pulsifer were pushing the defendant to concede that and could sometimes mean or and that meaning would depend on context. And the countess of context one Ketanji Brown Jackson intervened to make the point that we predicted. She would make. It’s like she’s been listening to us.


Leah Litman Easter egg. Easter egg from KBJ.


Melissa Murray We predicted that she would push back on the idea that the defendant’s interpretation would result in lower sentences for people with more serious criminal history. Background. So let’s play the clip.


Clip And don’t they have to under the sentencing guidelines? I mean, the safety valve just removes the mandatory minimum. But don’t the judges then have to look at the guidelines? And wouldn’t you expect that a defendant who had a number of serious criminal, violent priors, the guidelines would take account of that in terms of what the ultimate sentence was going to be.


Leah Litman So in some ways, the justices hesitation over the, you know, just the text and only the text argument was good in that it’s kind of distancing from the mindless version of textualism that doesn’t take seriously the enterprise of statutory interpretation, but it’s also deeply awful and frustrating that, like the only time they do this, the only time they try and complicate their wooden brand of textual is is when their wooden brand of textualism would support a defendant or support voting rights or support agency authority. And that’s when they’re like, Oh, we’ll just turn to context and these other things too.


Melissa Murray It’s almost like they’re selective about it.


Leah Litman It’s almost like that. It’s almost like their principles are dead, dead, dead. And Neil Gorsuch was quite pissed off that people were just not that into textualism.


Clip I don’t know that you think the Ninth Circuit was wrong in a case that favors you last year? We are day one.


Leah Litman I’d also like to note that I am also over this term on day one, Neal, So we have that in common. So takeaways from this argument, you know, I counted, I think, four votes for petitioner, defendant between Justice Sotomayor, Justice Jackson, the chief, and Justice Gorsuch. And I am really, really, really hoping that there is a fifth vote, maybe from Thomas, maybe from Barrett, maybe though the seem less likely after the argument. Justice Kagan I’m hoping there’s a fifth. I think there should be more than five votes, and I guess we will just leave the case with the counts of context, summing it up as she is able to do so well.


Clip So I appreciate that and can sometimes mean or but this is not a conversation. This is a statute and it’s a criminal statute with huge implications for the lives and well-being of the people who come through the system. And so I guess what I’m trying to understand is why the imprecision in this statute, the fact that you say that there are two textually grammatically possible readings, why doesn’t that count against the government? Justice Kagan said, I’m going to assume Leonetti applies. Can you help me understand why it wouldn’t?


Leah Litman Also one short errata. So we mentioned Pulsifer was represented, I think in passing by Jones Day, actually represented by Scattered. The lead attorney on the case is formerly at Jones Day.


Melissa Murray Can I just ask one more question about this? Like it’s actually a theme for this whole stupid sitting. Why do these men insisit on.


Leah Litman Dumb, dumb. Dumb Dead, Dead, Dead,.


Melissa Murray Dead, dumb, dumb, dumb. Why do these men insist on interrupting KBJ? Like, and I’m not just talking about her male colleagues, like also the lawyers. Like, we’re going to get to know Francisco, but like.


Leah Litman Oh, god.


Melissa Murray Cheese and Rice. Like, could that guy, like, get a clue? Like she’s wearing a robe? Like, shut the f up when she’s talking. She was. She was not here for him either. We’re going to get to that. But do you agree?


Leah Litman Like, oh, yeah, like.


Melissa Murray Stepping on her words constantly.


Kate Shaw And her colleagues as well. I mean.


Melissa Murray I want to be her anger translator. I just want to be like, can I just show up at oral arguments and just yes, to her and just be like, shut up. I’m like, I’m not done. I’ll let you know when you can talk.


Kate Shaw The anger translator would just have a field day.


Melissa Murray Be KBJs.


Kate Shaw The CFPB argument. She I mean. I felt like I could hear her rage in the silences just on the audio.


Leah Litman Yeah.


Melissa Murray Oh, my God. Yeah.


Melissa Murray Can we go on to CFPB versus Community Financial Service Association, also known as Payday Lenders?


Kate Shaw Yeah, we yeah, we saved the best. I don’t know if best is the right descriptor, but we saved a really important case.


Melissa Murray Most exciting. Most interesting.


Kate Shaw It was a really rollicking oral argument. I guess maybe we could call it. The case, just as a reminder is about basically whether the court has the appetite to trigger another Great Recession, maybe a depression, by invalidating the funding structure of the Consumer Financial Protection Bureau and calling into question potentially the funding structures of many other federal agencies, including such obscure agencies as the Federal Reserve Board and the FDIC. So we will see.


Melissa Murray You’ll recall listeners that the Fifth Circuit said that the CFP was unconstitutional because Congress wrote into the statute a longer term appropriation to the CFP that was coming from funds that were not directly appropriated from Congress. They came externally from funds from the Federal Reserve, i.e. assessments from Federal Reserve banks, and the Fifth Circuit kind of got its knickers in a wad about this and said that this kind of external appropriation violated the appropriations clause since Congress didn’t fund CFP through the annual appropriations process and because of the principle of legislative supremacy, which is weird to invoke here in a case where judges purport to tell Congress what it did wrong. But no worries. Because of the principle of legislative supremacy in the appropriations clause, the courts can now tell Congress how it can exercise its appropriation powers to fund agency. Its I just want to say this entire case was giving Congress as the Little Mermaid vibes like some big bad C, which, like Elizabeth Warren, stole Congress’s voice and took her power. And now Prince Eric slash, the entire conservative wing of this court, shadowboxing with Justice Scalia is going to come in and save Congress from itself by telling Congress how best congressional power should be executed by judges.


Leah Litman Because you know what? The separation of powers just needs to use a little body language, body yadda, yadda. Yadda, yadda.


Melissa Murray You know, So there’s the whole thing. I feel like the first question out of my mouth when this argument started was like, if it’s so fucking bad, why can’t Congress just go change it?


Kate Shaw You know what? Weirdly, Brett Kavanaugh made this point too. It was crazy.


Leah Litman Honestly, I feel like this case is just so easy. That’s what was happening. Because, you know, as as most of the comments suggested, good news, America, the Supreme Court does not seem eager to trigger a second Great Recession or depression and nuke the CFBP and declare a field day and other financial institutions. Having said that, Sam Alito does appear open to doing so. I also read Neil Gorsuch as like Great Recession. Curious maybe Thomas as while hard to say.


Kate Shaw Honestly I thought the Chief Justice did as well. I’m not sure. Like when it comes down to the actual drafting where he will be, but he was pretty, I thought, close to where at least Gorsuch and Thomas were during the argument. I mean, I do still agree with you. I think the Fifth Circuit gets reversed, but I wouldn’t rule out five four. And that I think, is completely insane because this case obviously should be an I know, but, you know, we’re getting ahead of ourselves. Maybe. Let’s start with the counties of context, slash the counties of the actual constitution on really the heart of the matter in this case.


Clip And the reason I think that is because of the language of the appropriations clause and the way in which it seems to give the legislature the prerogative of the purse. And here we have a statute in which the legislature has exercised that.


Leah Litman So we also got a nice window during this argument into Justice Kagan and Justice Sotomayor’s. And then also Justice Jackson says we’ll get to in the end. But here, just Justice Kagan and Justice Sotomayor’s burn books, and apparently Noel Francisco, who is arguing the case for the payday lending association, as well as the Fifth Circuit, occupies several pages in those books. So Justice Kagan underscored a point we talked about in the preview episode, namely that Congress has always, since the beginning of time, relied on appropriations that aren’t just year to year appropriations in an annual budget. So let’s play that clip here.


Clip The history of our country just rejects that scheme. I mean, that might have been a way to understand what the framers were doing. But it turns out that from the very first year, that’s not what they were doing. That’s not what they did. Annual line item appropriations were some appropriations, but massively not all appropriations. And so you’re just flying in the face of 250 years of history.


Leah Litman Basically, it’s called originalism Fifth Circuit. Look it up.


Melissa Murray And Justice Sotomayor deployed an oldie but goodie and. A salt that she often reserves for the most unhinged arguments that she is forced to endure as a sitting justice.


Clip Well, I’m sorry.


Clip I’m trying to understand your argument that I’m a total loss.


Clip I’ll try to do.


Clip Okay. Look, please do better. Please. I do better.


Kate Shaw Can we pause for a second in just how disrespectful Francisco’s response was? Am I wrong in reading when he sort of says, I’ll try to do better? He was just basically like, Go f yourself. I thought is what I actually heard. And I kind of couldn’t believe he said it, as opposed to just thought it.


Melissa Murray He was stepping over a lot. He also did this to Justice Kagan, who was kind of like interrupting with her a fair amount. She was having none of it, though.


Leah Litman Oh, we’ll get to that clip later. Yeah.


Kate Shaw Maybe now, though, let’s just play. Justice Kagan pressing a point that you, Melissa, made in the preview, which is we talked just a couple of minutes ago about the fact that what the court says here could have bearing on other agencies and institutions like the Federal Reserve Board. So Kagan was pressing this point that even though the Fifth Circuit and the lawyers representing the payday lending industry tried very hard to distinguish the CFP funding structure from the Fed, basically labeling the CFP as containing this kind of double insulation from the appropriations process. It does seem like because they’re both funded from assessments on banks, that’s a little bit of a stretch to try to draw such a sharp distinction. And so Kagan seemed to be suggesting that in her view, the challengers arguments absolutely would jeopardize or at least implicate the Fed’s funding structure. So let’s play that clip here.


Clip It sure seems that on your view, the Federal Reserve would also be unconstitutional.


Kate Shaw And, of course, I think it’s true that on the logic that’s being offered, a lot of other financial institutions would also be in jeopardy. Kagan shares that concern.


Clip Yeah, it’s just too important and whatever. I mean, the FDIC, the SCC, they also failure test and.


Melissa Murray This is a t-shirt right here.


Kate Shaw Too important and whatever.


Leah Litman Whatever.


Kate Shaw Did feel to me like Kagan calling B.S. in pretty explicit terms she basically is saying okay you have a test you’re offering as a test. It would obviously doom these other agencies. And so when we press you on that, you change the test, which I think just makes it so crystal clear. I think that the challengers here, they hate the CFP. They will say whatever is necessary to get the court to strike it down, but they don’t really have the appetite to bring down the global financial system. And so we’re going to try to distinguish away other entities like the Fed. And that’s trying.


Melissa Murray You’re just trying to make the world safe for payday lending. We don’t want to do anything more than that.


Leah Litman The economy must be a safe space for payday lenders.


Kate Shaw It’s a totally unprincipled position, and I think the or whatever in Kagan’s question makes clear that she shares that view.


Leah Litman Yeah, it’s like the ultimate like no law, just vibes, right? Because they’re abandoning the legal test. There isn’t really a legal test. They’re just like shooting from the hip at, like, whatever agencies they don’t like. Pew, pew, pew. There goes the CFPB. But, like, no Fed. You’re safe, right? And like, that’s just kind of what they’re doing because it seems like the Supreme Court might reject the Fifth Circuit’s view of the appropriations clause. Wanted to step back and just maybe offer some thoughts on some differences between the Fifth Circuit and the Supreme Court, because I’m hoping this will be one of several cases where the court actually diverges from the Fifth Circuit. And our listeners are smart and so they can hold like two ideas in their head, those ideas being that the US Supreme Court is crazy and that the Fifth Circuit is somehow even crazier. Yet I am concerned that legacy media is not yet able to see these things, so I’m going to try to explain it to me. The Fifth Circuit, they are like the elite Strike Force legal team, just constant conspiracy shit beamed down from the mothership. That’s their vibe. Whereas Kavanaugh, Barrett and the Chief, they are the Bush campaign legal team, right? Like Bush versus Gore. That’s crazy. But like, it’s not elite Strike Force legal team. Like they are willing to go with arguments that have been, like, cooked up and, like, refined in the course of the federal societies like last several decades, but like, not just like whatever. PW Someone holds out to destroy a disfavored agency. And again, these things are different, right? They are both unhinged, radical, extreme, but they are different maybe, you know, in degree rather than kind doesn’t mean right. This other group isn’t also great. Great but.


Kate Shaw That’s a great comparison.


Melissa Murray I’m going to raise this one aspect of it. Like, to the extent that legacy media will not sort of delve into that nuance, I think it’s partly because, one, it’s not that nuanced, but I think when they talk about a three, three, three court, what the chief and Kavanaugh and Barrett on one side and then the other three conservatives on the other, and then the liberals, that’s kind of what they’re getting at. Like what you basically have within that block of six on the court is an internecine fight between what kind of Republican. The conservative bloc is going to be like a Bush era Republican, sort of very conservative, but not necessarily wackadoodle or are we going to go the full MAGA? And that’s where the other three are. And I think we’re seeing that play out. Like, you know, the three that get posited as moderates are really just Bush era conservatives .


Leah Litman I like that comparison also, because it also gets at the fact that, like all aspects of the Republican Party, including the Bush conservatives, are enabling the muggers. Right. That are doing the MAGA thing. They just do it differently.


Melissa Murray Yes. Because the outcomes will be relatively similar. How they get there will be different, but like they’re all on board for the outcomes. And yeah, I think I think that’s exactly right. Of course, as we know from Dom Porter’s documentary, it’s not clear that everyone on Team Bush knows who Brett Kavanaugh is. Anyway, This argument was also a tale of two solicitor generals Prager and Francisco. And I just want to note.


Leah Litman We should say no Francisco was the former SG of the Trump administration. Just to remind listeners. Yeah.


Melissa Murray Yes. The guy who made it safe to get on the shadow docket again.Yeah, sure. Solicitor General Prager hit the ground running and this oral argument with pages and pages and pages of very specific historical examples of how appropriations like the CPB’s appropriations were consistent with the historic tradition of appropriating funds over time. And that, to me, is actually really interesting. I mean, it was almost like brewing, but make it payday lending, right? I mean, she was basically using the court’s history and tradition test and now applying it here, which tells you how pervasive and influential this kind of thinking from the court has been, not just in oral arguments on cases like abortion and guns, but even in the sort of question about how Congress can use its power. So this history and tradition thing is a thing and they’re going to use it and it’s shaping and influencing argument.


Kate Shaw One thing, though, I actually think the use of of history in these separation of powers cases actually has a pretty long and I think, uncontroversial pedigree. I think actually when we’re talking about provisions of the Constitution that are pretty spare, there’s not going to be much case law on them. All we really have is, I guess, corpus linguistics and our own intuitions and cocktail party conversations, but more importantly and not facetiously, the actual course of dealings between Congress and the executive branch or by Congress and agencies. And so all of that, I think there’s a very long and well-established history of the court, adverting to correctly what I think is really novel, though, is the Dobbs and Bruin use of history, which I do think really breaks from decisional methods that the court has long used.


Melissa Murray I think I’m seeing a different thing. I think here in the separation of powers contexts, she’s actually marshaling lines of arguments that conservatives used in Bruen and Dobbs successfully, which is to say that this fits into this history. I mean, she’s basically using the Dobbs and Bruin analysis as a template on which to layer this argument about separation of powers. So it’s not simply that, yes, we have done this before, and here are examples of how Congress has interpreted this in the past. She’s like basically saying this. There’s a tradition of historic regulation of appropriating in this way, in the way we would say there is a tradition of gun regulation that makes this okay. Yeah. And so like.


Kate Shaw Good for the goose good for the gander.


Melissa Murray Really interesting. Yeah.


Kate Shaw No, I think I think both I think both are right that it’s that there is a tradition of it and it is pitched in a way that should be really hard for the conservatives who embrace history and those other contexts to ignore or reject and you know, just number.


Melissa Murray Which is great to watch them actually do that. And so speaking of those conservatives who apparently only like history and tradition, when it’s, you know, sending women to parking lots to become septic, just like Noel Francisco, he showed up and was basically like, here’s what the appropriations clause means. And it basically means Congress has to specifically identify a very basic dollar amount in an annual statute. And that’s the only thing that the appropriations clause allows, which, again, entirely inconsistent with history and tradition. But it doesn’t matter because no one is sending Congress to a parking lot to have a septic payday lender.


Leah Litman I have to say, while no, Francisco was like very confident that that’s what the text of the appropriations clause means. I’m not super confident that he has like a firm grasp on what all words and phrases means because, like, does he know what the phrase jumped the shark means because.


Melissa Murray He does not. He does not.


Leah Litman Literally opening argument, which I take it he like prepared and thought about in advance. So. Let’s play that clip here.


Clip That’s why Congress rejected that model for the CFPB. They thought it made the agency too politically accountable. And if you jumped the shark from those to this, then you have blessed a regime in which Congress can authorize the executive branch to spend whatever it wants to fund the entire government.


Melissa Murray Has he watched Happy Days. Because everyone who.


Leah Litman I haven’t watched Happy Days and I still know what it means


Melissa Murray Like when Fonzie jumped the shark.


Leah Litman Yess.


Melissa Murray The show is over that’s not what this means. No, sir. Get you a Gen Xer to explain these things to you. Anyway. So that was disappointing on a lot of levels. Pop culture, constitutional interpretation, disappointing all around. During the Syria autumn questioning, I think Justice Thomas tried to throw him a lifeline because Noel Francisco got absolutely bodied by a tag team of Justice Jackson, Justice Sotomayor, Justice Kagan, and then even Brett Kavanaugh jumped in to literally pile on. So here’s a clip of Justice Thomas coming to the rescue.


Clip Mr. Francisco, just briefly, I’d like you to complete this sentence. Funding of the CFP is violates the appropriations clause because.


Leah Litman And that was followed up by just this absolutely brutal, serious questioning with Justice Kagan, which I think is the one you were referring to, Melissa, when you were saying Justice Kagan was like really not having BS.


Clip Then you’re amending your answer to Justice Thomas No.


Clip I’m not. That would be a much more.


Clip I think you.


Clip Are. Yeah, much more question.


Clip Could I just please. Sure. Answer my question. Because when you talk to Justice Thomas, you said that the because what followed the because was that it was an up to X rather than a specification of a number. No more loan less. So if that’s right, then it must be right that Congress could take this back and say you have to spend $600 million and that would be constitutional. And what I would suggest to you is that’s what your argument is, and that’s profoundly ahistorical in terms of our history.


Leah Litman There was also, by contrast, this extremely painful over page long in the transcript that is just Neil Gorsuch interrupting actually pretty logger enough to make you go insane.


Kate Shaw So we’re going to spare our listeners that, but it’s definitely on a full page of the transcript. But on the larger point, so again, Solicitor General Keylogger, we have talked about her a lot on the podcast. She was fantastic in this argument. She is always fantastic and she was, as she always is, measured and respectful even when getting totally deranged questions. And yet and yet I think this is the first time I saw just a glimmer of snark from her. Maybe I’m forgetting another instance, but I can’t. I can think of one.


Melissa Murray Nope. Her anger translator was lurking under the surface.


Kate Shaw We thought so too. So here’s the context. Alito is pressing her to identify a historical example that looks just like this one, because that argument is a lot about, as Melissa and I were just talking about, sort of what the history show is here. And she’s responsive, but she seems ever so slightly to emit some frustration with what he seems to be demanding of her. So let us play that clip here.


Clip What is your best example of an agency that draws its money from another agency that in turn does not get its money from a congressional appropriation in the normal sense of that term, but gets it from the private sector.


Clip So I can’t give you another example of a source that’s precisely like that one. But I would dispute the premise that that could possibly be constitutionally relevant. This is a case about Congress’s own prerogatives over the purse, its authority. And if Congress has given away too much of its authority by not providing for a durational limit or not providing or providing for too much discretion to the agency, that I don’t see how it could possibly fix the problem that other funded agencies directly collected their money from the entities they regulate.


Clip So I take it your answer is that you do not that is not consistent with any historical practice, but you think that to the extent it is unprecedented, it is unprecedented in a way that is not relevant for present purposes. Is that your answer?


Clip Yes. Primarily, I think it’d be unprecedented in the way that you could say this is the only agency that has the acronym CFP. That’s obviously true also, but it doesn’t track the constitutional value. So. Right.


Kate Shaw It is unprecedented in the way you could say this is the only agency that has the acronym CFPB. So, yes. Justice Alito That’s true. And yet the distinctions that you’re identifying are not germane. This was a little snarky. Wasn’t it?


Leah Litman Yeah.


Melissa Murray She’s kind of done with him. I mean, he actually was very, I think, aggressive with her about the history and historical analogs or the CFPB, and there aren’t many. But, I mean, the point wasn’t that there’s always been a CFPB, and it’s always had this kind of appropriation. The point was like, there are lots of agencies that are structured in this way. Yes. And anyway, moving along, I just want to note the significance of Justice Jackson going last in the Siri autumn questioning, which again, the Syria autumn questioning has a lot of upsides and downsides.


Kate Shaw Like oral arguments. Guess maybe to explain just for new listeners. Right the Syria Adam questioning so you know it go forward is that it used to be a free for all in oral arguments and then during the pandemic when they stopped hearing cases argued in person everybody stayed home and there were telephonic arguments. They used this alternative format in which the justices took turns asking questions just so it wasn’t like the chief having to play traffic cop. And then when they resumed regular in-person oral arguments, they adopted this kind of hybrid where it’s a free for all for a while. And at the very end, they go by seniority with each justice, getting a couple of minutes to pose any remaining questions of each advocate. It makes really long arguments and it has sort of upsides and downsides. Sorry, I say that, but so so what do you think about Katie Couric?


Melissa Murray That’s very helpful. Thank you for clarifying. I do think it’s important, though, that she gets to be last, because as the last person on the Syria Adam questioning, she gets to do a lot of cleaning up and reframing. And here she definitely stepped in to challenge what we have been talking about. Kate, This whole idea that in order to uphold this appropriations, we have to show that there have been like 150 other similar kinds of appropriations. And this is part of an historic tradition of how Congress appropriates funds. And, you know, it’s understandable why the SG emphasized that for all of the reasons I’ve suggested, this is where the court is going in its thinking. But I thought it was really great that she stepped in to say, like the real question here is about the appropriations clause like and what Congress can do and what Congress’s authority is under the appropriations clause. And that’s pretty wide open and perhaps by design. So, you know, what we think of as history could play a role here, but it doesn’t necessarily have to be determinative. And she also raised a very good point, that having courts like the Fifth Circuit or this court, rather than Congress step in to correct any problems with an appropriations by itself raises a set of separation of powers issues that people seem to be relatively inattentive to.


Kate Shaw And that wasn’t raised at all until she raised it in the very last couple of beats of the argument. I was so glad she did.


Melissa Murray It was like she did that in the affirmative action case, too. Like, doesn’t this raise its own equal protection problem or you just like Congress is a big girl. Congress can do its own work like you don’t need the courts to step in and save Congress.


Kate Shaw A big girl with seashell bikini, that’s Congress. And she can she can do a lot.


Melissa Murray With flowing red hair. But actually no speaker, no voice added.


Kate Shaw That works even better than I realized. That’s right. That’s true.


Melissa Murray So good.


Kate Shaw So since we’re talking about Justice Jackson, one note from the argument that I took away is that the animosity still so early in this term between Justice Alito and Justice Jackson is really something to behold. And here’s what I think was the illustration of that during this argument. So Justice Jackson basically let General Pilger know that she thinks it is quite misguided to require the government to identify an exact precedent, as you were just saying, Melissa, as Alito was basically doing in the quote that we just played a minute ago. So basically earlier in that exchange, the one that sort of I thought led Pilger to a little bit display her annoyance earlier in that same exchange before he was pressing her for the best example, he had asked about whether Congress could allocate $1,000,000,000,000 to the FBI and then tell the president to spend it as he sees fit. And Gorsuch had been bandying about similar hypos. Okay, so here is CBJ posing a question to General Lugar, but clearly responding to Justice Alito.


Clip Some of the questions that have been asked this morning are seem to be requiring you to establish whether or not Congress can do certain things. Can you know what? If Congress, you know, delegated the authority to to determine $1,000,000,000,000 worth of funding and how the agency was going to do it? What if Congress set it up in this way or that way, etc.? But I sort of thought that the burden was on them to show that Congress can’t set up the agency in this way. And the reason I think that is because of the language of the appropriations clause and the way in which it seems to give the legislature the prerogative of the purse. And here we have a statute in which the legislature has exercised that. So am I. Right. That that’s really all you need to say to win. I mean, you don’t lose if you can’t establish the limits in Congress’s exercise of its authority, right? I think that’s right, Justice Jackson.


Kate Shaw Okay. So she is basically talking about burden shifting, right? Like, whose burden is this? I thought she says right. The burden is on them to show Congress can’t do this. And some of my colleagues seem to be suggesting the burden is on you to identify an exact analog. So then Alito, later in his questioning of Noel Francisco, basically responds directly to Justice Jackson. So let’s play that clip here.


Clip FRANCISCO Until the very end of the solicitor general’s argument, I thought I understood the limiting principle that she was advocating and the limiting principle that you were advocating, and at least at a fairly high level of generality, I thought there was agreement on what the limiting principle was, and that was a comparison of this set up that is before us with historical practice. And I don’t think there’s anything unusual about asking counsel in cases that come before us for the limiting principle, the argument that they’re making. That’s a basic question that we ask. I don’t think it’s a question of burden shifting.


Melissa Murray If I were her anger translator, I would have been like, say it to my face.


Kate Shaw Yeah. I don’t know exactly what was going through her mind, but I did feel like I did want somebody to translate it. It felt like he was responding quite directly. And she also mentioned burdens again in her time with her final exchange with the solicitor general, the one Melissa, you were just talking about. And there I think she’s responding not just to Alito, but to all of her conservative colleagues, kind of like casually debating how the court should, for the first time ever superintend Congress’s power of the purse. So here hers is her mentioning burdens. And then the clip that I think you were alluding to most, where she sort of brings in the separation of powers.


Clip No, but I’m asking you, what I’m asking you is help me to understand why that’s not what it needs. That that’s your burden, right? That’s what the words seem to say. There’s nothing in this Constitution that’s like scenario one, like the Army clause, where Congress, where the framers have specifically restricted the exercise of authority that they’re giving to Congress.


Kate Shaw So, again, I am, you know, not mad that we get to watch Justice Jackson do her thing for the rest of the term. And I really.


Melissa Murray I really do wish she had an anger translator


Kate Shaw If it’s this bad this early. I just I’m not sure where we are going to go in the next nine months.


Melissa Murray I don’t actually care about him, so.


Leah Litman So we’re going to save most of our in-depth discussion about the cases the court is hearing this week for next week’s episode. When we recap them, we did want to note that in one case, an employment law case, Maria, versus UBS security, strict scrutiny. Super guest Easha Anand making her Supreme Court debut, which we are super excited about. Also, the court is hearing another important voting rights case, Alexander versus South Carolina State conference of the NAACP. This involves another type of voting rights claim that differs from the sort of claim that was at issue in Allen versus Milligan in this case, the South Carolina one. The claim is that South Carolina intentionally drew its districts to disadvantage black voters. There is also a separate independent, what’s called Shaw Claim, where the appearance of the districts gives rise to the sense that race is a explanation behind them. So we will hear what the court says and does about the future of those types of voting rights claims in this case. This case is kind of about how, if at all, the court can disaggregate race from partizanship given that racial polarization, a phenomenon where, you know, members of one racial group or another tend to vote for one political party or another, could explain some of what the legislature did. But again, given kind of the correlation between the two, it’s difficult to disentangle them. A second thing which might come up at the oral argument is ProPublica ran a story about how Representative Clyburn was actually involved in the creation of these maps to, you know, the reporting went help his own district be safer while leading to a set of maps that disadvantaged black voters throughout the state more generally, leading to more, you know, safer Republican seats. And at argument, Sam Alito is going to be furiously pressing to alternative theories. One is that these maps can’t be racist because Jim Clyburn can’t be racist. Or are you saying Jim Clyburn is racist? Second, and alternatively is that ProPublica is a bunch of lying hacks and who just engage in smear jobs and therefore we can’t believe anything they say, including about me and Clarence. I should note, Clyburn filed an amicus brief in this case saying he wasn’t substantively involved in the maps. So these are the cases the court will be hearing.


Kate Shaw And as Leah said, we’ll talk at much more length about them in our next episode.


Melissa Murray Okay, Let’s dive into court culture and there’s a lot going on to dig into. So in the last episode, we noted the very happy news that SCOTUS was going to stick to its decision in Allen versus Milligan and require Alabama to create a second majority minority district where black Alabamians could select the candidate of their choice. After the court concluded that Alabama’s map, with just one majority minority district, violated the Voting Rights Act. But now here comes, you guessed it, the Fifth Circuit. Q Darth Vader music. The Fifth Circuit has decided to step in and rain on that parade. So listeners, you’ll recall that after SCOTUS issued the order allowing Alabama to use its unlawful maps in the 2022 midterms, the court did the same thing with maps out of Louisiana, where even though a district court concluded that the Louisiana maps violated the VRA, Scotty said not a big deal. It’ll work for the midterms, might even flip Congress and allowed Louisiana to use those illegal maps. You would think that in light of what the court eventually did in Milligan here, the Louisiana case would proceed in a similar way. Having affirmed the Vera’s strength and noting that vote dilution continues to exist, this case would proceed in a way in which Louisiana would also be required to create another majority minority district in its state.


Kate Shaw And yet this saga, every time it feels as though you can breathe a sigh of relief and like the rule of law is secure, like, no, of course it isn’t. And so the Fifth Circuit decides to step in here and say no. So you have the Fifth Circuit, specifically Judge James Ho and Judge Edith Jones taking the completely insane, extraordinary step of issuing a mandamus order blocking the district court from proceeding with a hearing about drawing new maps to create a second majority minority district. I don’t really have the words to say how crazy it is for a court of appeals to stop a case while it is ongoing and before the district court has finalized it by adopting a remedy where all the district court is doing is proceeding exactly consistent with what the Supreme Court just said had to happen in an essentially materially identical case. Mandamus is supposed to be for truly insane things judges do. If this district court judge literally decided to gag one of the lawyers and refuse to allow them to proceed in this hearing, maybe a mandamus would be okay. I mean, it’s truly supposed to be that extreme. The circumstances in which mandamus is appropriate. And here all you have this district we’re doing is proceeding in the ordinary course. And yet the Fifth Circuit has stopped it from happening. And this is the Fifth Circuit, so maybe we shouldn’t be surprised.


Melissa Murray Stares in June, Medical Services versus Russo.


Leah Litman Or Whole Woman’s Health versus Jackson or any of the other Fifth Circuit’s antics. More seriously, it does appear that Fifth Circuit judges experience an esthetic injury whenever anyone attempts to enforce civil rights or remedy Voting Rights Act violation. So that must be what’s going on here. But, you know, the upshot of this decision, because the court of appeals has delayed the process of creating new maps, is there is a risk that any decision drawing new maps would happen too late and too close to the 2024 election for the maps to be used. Because remember, Brett Kavanaugh adopted the nonsensical view in the Alabama case that the Purcell principle, the idea that courts shouldn’t change rules in ways that confuse voters too close to an election. He adopted that principle in the Alabama redistricting case to bar a court from, you know, stopping Alabama from using illegal maps. So this is bad since it increases the odds that there will be yet another election under a set of illegal maps that disadvantage voters of color.


Melissa Murray It’s almost like it’s a concerted effort to disenfranchize people over and over and over again almost. The Austin Chronicle had a really important story about some of the consequences of the continuation of the blue slip practice in the Senate. The blue slip practice is less home state senators have what’s essentially a veto over district court nominees. So even when the home state senators are of a different party than the president, they get to basically veto the president’s nominees to the district court, essentially gumming up the works. Stanford law professor Mark Lemley and others have documented how the blue slip process has meant that Biden has not been able to nominate that many district court judges in states that have two Republican senators. And the Austin Chronicle reports that this has had really severe consequences. In Texas, in particular in Austin, there is just one district court judge, and there are two vacant judgeships that have not been filled in Austin because the blue slips allow the two senators in Texas, Senator John Cornyn and our favorite, the gentleman from Cancun, to essentially veto any district court nominees. So this means that Judge Robert Pitman, who is the good Pitman, not the Pitman, who likened the eviction moratorium to the emergent Nazi regime. Good Judge Pitman will have more than 1000 cases this year because he’s the only Judge in Austin. So why, given this severe, severe lack of capacity in the Austin courthouse, why won’t the Republican senators agree to nominate some district court judges to fill those slots in Austin? Well perhaps it’s because Austin is where the Texas legislature is located and where Texas government happens. And that means Austin is a place where the Texas government can always be sued. And so having district court judges from a Democratic president seems to be incompatible with some of the goals that the great state of Texas has for its policies. So absolutely appalling, but completely on brand.


Leah Litman After our last episode was recorded. Senator Dianne Feinstein passed away. Senator Feinstein, of course, had a very impressive career and there was some uncertainty about what this would mean because there were some reports that Republicans would block Democrats from allowing her replacement to serve on committees. It doesn’t appear that that is going to happen. Now, some. Admiral Alphonso Butler has been sworn in. She is the first black lesbian to serve in the Senate. And right now, the only black woman in the Senate. And Republicans are not signaling that they will block her from committee assignments.


Kate Shaw And from the judge’s perspective, the concern that she wouldn’t be given committee assignments was a really serious one, because Feinstein sat on the Judiciary Committee and the Democrats being down on that committee might have ground confirmations to a halt. But as we sit here recording, it does not appear that that is likely to materialize.


Melissa Murray But you know what will get blocked? Not Lafonsa Butler, but investment funds that are trying to provide venture capital funding to black women. So there is reporting that a VC fund that directed venture capital funding to black women who incidentally receive about 1% of all VC funding in the whole United States. This fund has been blocked by the 11th Circuit on the ground that providing such funds to black women is inconsistent with the court’s ruling and Students for Fair Admissions versus Harvard. So I hate it here.


Kate Shaw Yeah, I mean, that obviously is a case about, you know, the use of race in higher education admissions and coming out of the opinion, there are there were a lot of questions how constrained to this context, how more broadly applicable is the court’s reasoning? And this opinion represents, I think, the broadest possible interpretation and does suggest that other race conscious programs and policies and funds could be in jeopardy under an expansive reading of the Students for Fairer Admissions case. So it’s a deeply alarming opinion in its own right, and it’s also deeply alarming in terms of sort of what.


Melissa Murray It’s unright?


Kate Shaw In its own right? It is also un-Right.


Melissa Murray And it is also unright.


Kate Shaw It is unright. You know, Justice Stevens used to use unwise, which was so quaint and adorable he would describe things as displaying on wisdom. So on wisdom and on. Right. I’m gamed to use both of them. Okay. So I have a question, which is, did Clarence Thomas grow on ethics in the last couple of weeks? So Thomas recused from a case involving John Eastman’s emails and the January six committee. This was a cert petition. It was denied. But we got a one sentence note in the denial that Justice Thomas took no part in consideration or decision of this petition. Justice Thomas conspicuously did not recuse in an earlier effort of Trump to keep his documents from the January six committee that were in the possession of the National Archives. So this is movement. And look, it’s small. I am not suggesting that ethics is fixed at the Supreme Court, but I do think it suggests that the public outrage might be having some impact.


Melissa Murray Also, didn’t Justice Alito recuse himself in a case in which she had apparently stock holdings,.


Kate Shaw But that he’s done in a long time and he very much did not recuse our obviously.


Melissa Murray But this moment, I think, you know, Sherrilyn Ifill on Twitter noted that she thought this was likely due to the pressure that people have been putting on the court about these disclosure lapses and these ethical lapses. And I don’t know if they pay attention. It seems like they might be paying a little attention at the margins and we’ll see where this leads. But again, as you say, a very small step.


Kate Shaw Can we talk, Abby, announcements for a minute? Okay, Melissa.


Leah Litman Well, they’re like happy ish given like the subject of the books.


Kate Shaw Okay, this is fair. There are two wonderful books that you guys are writing. So Melissa announced a couple of weeks ago we knew about this, but you guys just found out that she is doing a book with Andrew Weissman called The Trump Indictments has a subtitle. I don’t remember.


Melissa Murray The historic charging documents with commentary and.


Kate Shaw Which is sure to be brilliant, incisive, potentially funny. Is it funny? Is any of the commentary funny?


Melissa Murray I think some of it actually is funny. Basically, we’re annotating all of the indictment so people kind of know.


Kate Shaw What it’s like the MST 3000 of the Trump indictments with you and Andrew in the back of your heads, just like giving us running commentary.


Melissa Murray I think of it as pop up video where yeah.


Kate Shaw That’s a more contemporary comparison.


Melissa Murray This was Kanye West’s publicists, it’s like that. So you know like and trying to explain a lot of the choices that were made, the prosecutorial choices that were made, and also to contextualize everything. So, you know, we have a quite like significant bit of writing that talks about other systems where holding former public officials accountable is not that unusual. It actually happens quite a lot. So we’re trying to contextualize trying to explain and this book is going to come out in the end of February right before the first trial is supposed to start. But I will say the editing process is dynamic, like is a complete moving target as we continually revise and talk about gag orders and talk about people who are flipping. So I think we will be editing right up until the last minute, but we’re really looking forward to it and we hope it’ll be a service to those who are going to follow the indictments closely.


Kate Shaw All right. So it’s coming out in February. People can preorder. We will drop the link in our show note. It’s available wherever you buy your books. I hope there’ll be an on. Joe Buck. I hope there’ll be a smoothie. I don’t know exactly.


Melissa Murray I think Meryl Streep wants to read.


Kate Shaw I think Reje Jean wants to read it actually.


Leah Litman Yeah. Reje Jean and Meryl Streep: A conversation.


Kate Shaw Okay. I like this.


Melissa Murray I want her. I want her to read it in her Miranda Priestly voice.


Leah Litman Yes.


Melissa Murray Please try this case at a glacial pace. You know how that thrills me.


Kate Shaw Leah is also writing a book. Not going to be out in February. It’ll be a little bit of a longer lead time. And I don’t know. It’s not available for preorder.


Leah Litman It’s not available for preorder yet.


Kate Shaw So we’ll we will definitely bring our listeners.


Melissa Murray But wait, you have the best title ever.


Kate Shaw It does have a good title.


Melissa Murray What is the title?


Leah Litman The title is Lawless: How the Supreme Court Came to Run on Conservative Grievance, Fringe Theories, and Bad Vibes.


Melissa Murray Love it.


Kate Shaw Excellent title, excellent subtitle. And both these books.


Leah Litman I’m going to send a signed copy to Sam.


Kate Shaw XX OO.


Leah Litman Exactly.


Melissa Murray Thanks for making this possible.


Leah Litman Exactly.


Kate Shaw You should probably dedicate you should probably not just sign it but actually dedicate it to him in the printed volume.


Melissa Murray Yeah. Justice Sotomayor always signs her books with, like, dream Big. You should do that.


Kate Shaw And so these are both really exciting developments. We’ll keep you posted on both. And we will also have some new merch dropping soon. So stay tuned for all of that.


Leah Litman [AD].


Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell. Ashley Mizuho is our associate producer. We have audio engineering by Kyle Seglin, music by Eddie Cooper, and production support from Michael Martinez and Ari Schwartz.