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February 27, 2023
Strict Scrutiny
Not the Nine Greatest Experts on the Internet

In This Episode

Leah and Kate recap the arguments in the big Internet cases the Supreme Court heard last week. Plus, they look ahead to the upcoming arguments in the student debt cancellation cases– and to an election in Wisconsin that you should all be watching.

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TRANSCRIPT

Leah Litman [AD]

 

Show Intro Mr. 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.

 

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

 

Kate Shaw And I’m Kate Shaw. And I promise you, dear listener, that Melissa and I will actually appear together on an episode soon. I further promise that the three of us, Melissa, Leah and I will all appear as a trio on an episode soon, although that will not be happening next week, but it will be happening in the near future, including at some very special upcoming events that are in the works and that will be public soon. So please stay tuned for all of that.

 

Leah Litman But for this week, we’re going to be recapping the big tech, big Internet, just plain big cases the court heard last week. And we will also look ahead to the big cases the court is hearing this week. And as always, we’ll have some court culture for you at the end. So here goes. And if episodes with Melissa and me are extra on high jinks, I feel like episodes with you and me, Kate, are extra on the words per minute. So listeners, sorry if you have to slow this one down to three quarters or half speed. Sometimes we just can’t help ourselves.

 

Kate Shaw We’re really sorry. One x speed might work, but anything above that I think is going to really give you a headache. So we probably don’t do that.

 

Leah Litman No.

 

Kate Shaw Okay. So first up, the recaps. So as Leah just mentioned, this past week, the court heard two section 230 cases, although really it’s one, Section 230 case and one section 230 adjacent case. As a reminder, those two cases are Gonzales versus Google, which is the actual Section 230 case and Twitter versus Tumblr, which is the Section 230 adjacent case. Leah, you and Melissa preview these cases with the wonderful Danielle Citron last week. So listeners, go check out that episode if you haven’t and if you want even more background than we’re giving today, so can I just use the term Section 230 as a shorthand? And in general, it’s used as a shorthand for a couple of key provisions of the Communications Decency Act of 1996. So these provisions say both that interactive computer service providers like Google or Twitter will not be treated as the publisher or speaker of information on that service. And they also supply immunity from civil liability to the service providers for any action voluntarily taken in good faith to restrict access to or availability of certain material. That’s kind of a mouthful. So let me try to translate. The idea here is basically that these platforms are kind of like bookstores in that they’re not responsible for the things that users post. So if a book in a bookstore contains defamatory content, the bookstore is not responsible for that content. And here platforms are not responsible for the content that their users post on them. And further, that if these platforms do take some active role in moderating, say, they do things like take down harmful content, that activity does not mean that they thereby become responsible either for the stuff that they take down or the stuff that they don’t take down. The idea here is that it’s pretty clear that Congress wanted to encourage sites like Google to be active in moderating without fear of exposing themselves to crushing liability.

 

Leah Litman So Google is the actual Section 230 case, because in that case, the Court of Appeals said that Section two three barred the plaintiffs lawsuit against Google. The plaintiffs sued Google under the Anti Terrorism Act, saying that Google’s YouTube platform had facilitated acts of international terrorism committed by ISIS because YouTube’s algorithm had shared ISIS videos and promoted them. And Twitter is a Section 230 adjacent case, because in that case, the Court of Appeals said only that Twitter had potentially violated the Anti-Terrorism Act when it promoted ISIS’s tweets and allowed ISIS members to coordinate with one another on the platform. But the court didn’t actually decide whether Section 230 would ultimately bar that lawsuit against Twitter. So as we did last time, we’re going to focus on the Section 230 issue again, because that’s the issue that has a potential to really change how the Internet works. But as we discussed last episode, it is possible that the court ultimately won’t say anything about 230 at all and might try to resolve both cases under the Anti-Terrorism Act.

 

Kate Shaw Okay, so let’s dive right into Google versus Gonzalez. Now, before this argument began, there were really two things that we knew. One, Neil Gorsuch was feeling under the weather, so he participated remotely. This actually isn’t substantively relevant. I just think it’s really funny. That’s how the court described their reasoning.

 

Leah Litman Was a little substantively relevant. He was less annoying when forced to participate in a limited fashion by only asking questions.

 

Kate Shaw Only in a relative sense.

 

Leah Litman Via zoom or whatever platform, you know, in seriatim format. So.

 

Kate Shaw Do you think it would have been much. Okay, so maybe it would have been different had he been there.

 

Leah Litman I think it would have been way more annoying if he would have been there in person.

 

Kate Shaw Okay, fair enough. Fair enough. Second, and more substantively, though, it did seem before the argument as though the court took the case in order to narrow the scope of immunity from liability under section 230. Right. That is to roll back the protections that these companies have long been understood to enjoy. And I think the reason it seemed like that’s why the court took this case is because all the courts of appeals basically have agreed that interactive service providers are immune under. Circumstances like these, right, where they provide or promote or even recommend content based on algorithms and data they collect about users. So typically, when the court takes a case like this, it’s generally because it is unhappy with the consensus in the lower courts and Slash wants to blow things up. But then within what seemed like 5 minutes of the oral argument, it became pretty difficult to find really any justice who was inclined to adopt the petitioner’s arguments for limiting Section 230. So it actually seems pretty clear that Google is going to win this case. And it isn’t even clear whether there are four, much less five justices who might be able to coalesce around anything specific that might keep the door open for limiting section to throw in another case that isn’t this one. So let’s rewind and just remind listeners and super broad brushes of the arguments of the parties. So Google says, Look, you can’t hold us liable in this case because you, the plaintiff, are saying that ISIS’s videos contributed to the attacks and that would hold us Google, liable for ISIS’s speech based on the idea that we are the publisher or speaker of that speech. But Section two says we are immune from liability for things that users say on our platform. The plaintiffs respond by saying something like, No, we’re not suing you because you published or posted ISIS’s speech. Were soon you because you recommended ISIS’s speech when ISIS videos popped up, as you know, things like next video suggestions to certain users. And Google responds to this as follows. So, one, they say that part of the liability still depends on us publishing ISIS’s speech, since the plaintiffs kind of issue is with the substance of that speech, not our speech. And second, maybe more fundamentally, they say you cannot have the Internet without recommendations to users. So if interactive computer service providers are liable for making recommendations, basically there goes the Internet, because when you fire up YouTube to look for, say, interspecies friendship videos or you run a search for a yoga studio in your neighborhood, service providers are making recommendations by ranking results. The Internet simply cannot function without doing this. So the federal government was basically on the plaintiff side in this case on this particular issue, in that it said that Section 230 actually didn’t give providers immunity when the plaintiffs case is about the service providers own speech, like making recommendations. But it went on to argue that the providers won’t ultimately be found liable here because merely recommending content based on the kinds of algorithms that most content providers use doesn’t constitute aiding and abetting conduct resulting from the videos.

 

Leah Litman Okay. So with those terms of the debate in mind, let’s talk about what happened at the argument. So first up was a lawyer for the petitioners, the plaintiffs in the case. And within seconds, a few things, maybe three things were clear. One is that as you were kind of suggesting, Kate, the justices were just not buying petitioner’s argument that, you know, the justices don’t seem to think that Section 230 allows suits. When a plaintiff argues that an algorithm cued up a next video or recommended an X video. And that includes the justices who have previously said that they would like to revisit and narrow the scope of immunity under Section 230, like Justice Thomas. And it also includes the justices who, because of their conservative grievance complex against big tech and really against the world, seemed like they would also be kind of natural allies for the plaintiffs. And that was a not so subtle reference to Sam Alito. So let’s play clips from these justices that kind of highlight their skepticism. The first clip is from Justice Thomas, and it’s a statement indicating he doesn’t really buy the plaintiff’s idea that what YouTube is doing here is making recommendations or that there’s any real speech by YouTube involved here.

 

Clip What if the YouTube, instead of automatically providing this list, which is it’s hard for me because I don’t see this, I see these as suggestions and not really recommendations because they don’t really comment on them. But what if you had to click on something like for more like this, click here? Would that also be as far as you’re concerned? Aiding and abetting or outside this statute?

 

Leah Litman And then here is Justice Thomas commenting on the lawyer’s position in the case more generally, again, pretty skeptically.

 

Clip Was that responsive? I’m not.

 

Clip Well as responsive, but I don’t understand that you called.

 

Leah Litman And here’s Justice Alito saying something similar, but as always, in a slightly nastier, more jerkish way.

 

Clip I’m afraid I’m completely confused by whatever argument you’re making at the present time.

 

Leah Litman So that’s the first point. And honestly, after listening to the argument, a part of me wondered if they, you know, the justices who were interested in limiting the scope of immunity were maybe too excited to take a Section 230 case that involved ISIS because they were so excited about the possibility of playing gotcha, about how social media companies are censoring conservatives, but not ISIS. They didn’t actually dig into the facts of the case or the complaints, and they didn’t realize that the actual allegations in the case may not have been a great vehicle for rethinking. Section 230.

 

Kate Shaw I think that is a great read on the sort of general ethos of the oral argument. So second big takeaway quickly materializing in the argument was that the justices are really concerned about distinguishing this case. And, you know, really any case in which a plaintiff could maybe get around section 230 from cases involving search engines. Right. Or other stuff that just seems really endemic to making the Internet functional and being able to sort junk from not junk and getting content in front of people. So the concern is basically what you and Melissa laid out in the discussion with Danielle. How can a search engine work if it cannot rank content based on the search engines algorithm? How can Tik-tok get you all the Taylor Swift tech talks without relying on the company’s algorithm? And here the plaintiff’s attorney was really clear that accepting his argument would open up the potential for search engine liability. Right. So not just Google as owner of YouTube, but here Google’s search engine as well. Justice Kagan brought up this concern like right from the get go, noting that algorithms may not have been as integral when the statute was written, but they’re endemic to the Internet now. And, you know, like as I said a minute ago, the petitioner’s counsel really wasn’t willing to draw a line that would exempt search from whatever new rule the court might set forth. It wasn’t just Kagan, though. A bunch of other justices picked up on this concern, basically pressing the federal government on what would happen if the court said that Section 230 didn’t bar lawsuits based on recommendations and that all the lawsuits would be resolved based on whether under state tort theory is like defamation or aiding and abetting liability, you can be liable based on recommendations. The justices seem really concerned about, you know, the impact of a ruling in this case on service providers that are really just curating search results.

 

Leah Litman Okay. So the third point, slightly less substantive, but still important to keep in mind is there were some moments where it just wasn’t clear whether the justices knew how the Internet works. So here’s one clip that made me wonder, you know, do all of the justices know what a thumbnail is? So let’s play that tape here.

 

Clip That’s content I’ve created. Okay. And on the content creation point, let’s imagine it seems like you’re putting a whole lot of weight on the fact that these are thumbnails. And so it’s something that YouTube separately creates. What if they just screenshot? They just screenshot the ISIS thing, they don’t do the thumbnail. Then that’s pure third party content. That’s pure.

 

Leah Litman A thumbnail is a screenshot of the third party’s content. It’s not something the interactive computer service provider makes. You know. In the second argument, Justice Thomas brought up jurors and it’s just like I just had questions about their knowledge about how any of this stuff works.

 

Kate Shaw Although I feel like we learned a couple of things that I was somewhat surprised by. At one point, Justice Barrett asked a question that had her kind of fluently talking about retweeting and liking content on Twitter and sort of asking about opening up users to potential liability. And, you know, turns out they’re just not a lot of law on this. But I don’t know, the way she was talking about it made me wonder whether maybe now that Twitter’s terrible Justice Barrett is on it. I don’t know. I never thought of her as one of the on Twitter justices. But now I wonder if she is.

 

Leah Litman There’s a possibility. I had a different reaction, which is why at moments, her discussing retweets suggested to her that she thinks retweets are endorsements. And anyone who’s actually on Twitter would know that’s not actually the case. And then, you know, too, is it made me wonder like, well, that’s not actually analogous to the issue in the case, because when someone is retweeting or liking content, Right, that’s content created by another user, right? And no one is suing the other users. The question is whether you can sue the platform for hosting that. So you know, that that that also left me with some questions. I would say.

 

Kate Shaw She’s at least familiar with the way she thinks it works. But but interesting.

 

Leah Litman And in her closed universe, retweets are endorsements. But you’re telling me okay something I’m a little bit of me is surprised she didn’t use the phrase re truth to describe what happens on on social media platforms.

 

Kate Shaw It would have been an amazing slip if she had. Oh, my Lord.

 

Leah Litman We’ll take our wins where we can get them more seriously based on the more germane observations. It seems like, as we were saying, petitioners, you know, the plaintiffs are going to lose and Google is going to win. But a few other things happened that suggest it might end up being significant how Google wins. And that may be some of Google’s broadest arguments. That is the arguments for the most expansive version of liability for these computer companies. But some of those arguments may have flown a little close to the sun for the justices. So let’s walk through some of what happened there. So, you know, one thing is, even though it seemed like the justices weren’t buying, the plaintiffs proposed limits to Section 230 immunity, it also seemed like some of the justices were concerned about the expansive version of immunity that Google was proposing. And they suggested a few different ways in which the court might say that even though Google wins here, maybe there would be some set of cases where Section 230 wouldn’t actually protect companies like Google. So let’s play a clip of. Justice Sotomayor asking a hypothetical that involves circumstances where it seemed as though some number of justices thought maybe Section 230 wouldn’t bar a lawsuit.

 

Clip The way you write that, it’s going to put you outside the door. If you write an algorithm for someone. That in its structure ensures that discrimination between people, a dating app, for example, someone comes to you and says, I’m going to create an algorithm that inherently discriminates against people. It won’t match black people to white people, Asian people, to Hispanics. It’s going to discriminate. You would say that Internet provider is discriminating. Correct.

 

Kate Shaw And this way of thinking seemed to come up in some of the other justices questions as well, including questioning by Justice Thomas, Justice Jackson, the chief justice. They were all interested in trying to probe the idea that, you know, maybe a neutral algorithm couldn’t be the basis for liability, but an algorithm that was like specifically producing and recommending ICE’s content or, you know, was racist in design or execution could be the basis for liability. And there are had to admit, I am just not sure what they are envisioning here or how what they are envisioning could ever be crafted into a workable rule of law. Right. So in general, algorithms are just not neutral in the sense that they seemed to mean in the argument. They are designed in part to recommend items because of the content and substance of those items and to recommend content that the company wants to recommend. So, you know, like just by their very nature, kind of neutrality is seems like a misplaced concept with respect to algorithms.

 

Leah Litman Yeah. I mean, you know, Elon Musk is supposedly currently writing algorithms or, you know, having other people write algorithms for him that ensure his own content is recommended to everyone. Like that’s the purpose of the algorithm.

 

Kate Shaw Right? No, so that so certainly algorithms can be written for tons of different purposes. And in some ways they were sort of saying, well, yeah, so maybe like that algorithm would be non neutral. And so with the Isis promoting algorithm, but that all other algorithms somehow would be neutral. But you know, as a general matter, again, like I think the way these algorithms operate is with the goal of increasing user engagement and ad revenue. And this could lead to like lots of troubling effects. But the hope was that they kept coming up with seemed to me to mis apprehend, like the nature of the attention economy and the incentives of these platforms and even positing neutrality as something that could supply some sort of line dividing, you know, potential liability causing conduct from other conduct. I’m just not sure it exists.

 

Leah Litman Make neutral principles great again.

 

Kate Shaw Right, Exactly.

 

Leah Litman That’s a reference to a somewhat infamous law review article. Sorry, this is like extreme nerd dom.

 

Kate Shaw But yeah, Leah is referencing a very famous and very problematic law review article called Toward Neutral Principles by the Law professor Herb Wexler that Sam Alito would probably like to make great. Again, that is pretty dubious about, if not the result, at least the reasoning in Brown versus Board of Education. And so I don’t think it’s an accident that is mentioning this case in the same breath as Sam Alito and the quest for neutrality.

 

Leah Litman Yeah, I mean, that article literally suggested Brown was problematic because it was giving, you know, black children who were forced to go to segregated schools, you know, unfair preferential treatment and that the law wasn’t being neutral. Yeah. No, no.

 

Kate Shaw DELGADO Yeah. So okay, So back to the Google argument. So if all of this even is germane, right, like whether the court could announce some sort of content neutrality principle, it seems to relate more to the scope of liability, right? Like whether you’re intentionally aiding and abetting ISIS rather than whether you were acting as a publisher or speaker or curating content in the way that Section two or three describes. So maybe this like neutrality line is one that the law could try to give effect to, but it’s hard to see how in the context of section 230.

 

Leah Litman Yeah, and these and some other exchanges made clear something that Justice Sotomayor had also come out and said, which is that the justices do seem to be looking for a line that is something that would say Section 230 doesn’t actually bar all lawsuits, where a plaintiff is suing an interactive computer service provider for something that happens on that service providers service. So here is Justice Sotomayor making this clear.

 

Clip Let’s assume we’re looking for a line because it’s clear from our questions we are okay. And let’s assume that we’re uncomfortable with the line that says merely recommending something without adornment. You suggest?

 

Leah Litman And they’re looking for a line in part because the current state of immunity that these companies have is so broad, like basically the courts of appeals are all saying, if you’re suing these interactive computer service providers for anything on their websites or anything, they. Do on their websites. Section 230 says you can’t actually do that. So maybe let’s go through some of the possible limits on Section 230. And to be clear, it’s not clear that any of these possible limits have five votes or really even two or three votes. But it did seem like they’re looking for one. You know, one possible idea which you went through above is that maybe there are some non neutral algorithms, you know, that could be the basis for, you know, piercing the immunity under Section 230. Unclear how that works. Another is the idea that maybe you could sue the service providers for things that weren’t inherent in publishing. I’m not totally clear on what that would be. You know, another idea still is that you can sue a service provider for endorsing content, but maybe not recommending it. Unclear where the dividing line would be here, But, you know, the lawyer arguing for Google, Lisa Blatt, seemed to throw this out at one point.

 

Kate Shaw And so you just take through, Leah, a bunch of these different theories that might be on the table. None of them are very clear and none of them necessarily would command majority support. So it definitely seems possible that the court is going to try to say nothing at all in this case. Right. In the preview, I remember Julia suggested that the court might just duck the Section 230 issue and decide the case that on the ground that whatever the computer service providers did here, it didn’t rise to the level of aiding and abetting terrorism under the Anti-Terrorism Act. And so that would mean the underlying claim here could proceed without even getting into the Section 230 issue at all. Several justices in the oral argument, including Justice Barrett, asked, Could we just dispose of this case on those grounds and call it a Tuesday, like more or less? The petitioners lawyers seem to say that, well, you know, the plaintiffs here could still amend their complaint, but kind of by his rebuttal, it sort of seemed like he’d become resigned to the fact that that was the best that he could hope for, which I do think tells you something about like the chances that Google loses this case sort of in its entirety coming coming out of the argument.

 

Leah Litman And if we’re playing a little bit of I told you so. You know, I did also say in the preview that Lisa Blatt, the lawyer for Google, was going to bring up porn. And listeners, let’s let’s roll that tape.

 

Clip And so if you go down this road of did you target it, then you have to say how much was the topic heading? Too much. Was it okay to have a violence channel? Was it okay to have a sex channel? Was it okay to have you know, what have you some other channel about skinny models that you could say, well, that just kept repeating the the channel and that made me crazy.

 

Leah Litman She was however really quite low key. I would say.

 

Kate Shaw Sex channel was like pretty pretty tame considering where things could have gone too.

 

Leah Litman Indeed. Indeed.

 

Kate Shaw And turning now maybe to the argument that Lisa Blatt made for Google, you know, if the plaintiff’s argument seemed, as we have just described, pretty broad for the justices at various points, it did seem as though maybe Google’s arguments were a little broad for that. Some of them as well, maybe in particular Justices Jackson and Kagan and maybe the under the weather, Gorsuch and maybe also Sotomayor. So let’s play one of those clips from Justice Kagan.

 

Clip Right. So you’re saying two thirds does apply to that, to 30 gives protection regarding oh, I didn’t say something incorrect. 30 gives protection regardless whether it’s like put the defamatory stuff up to put the pro-ISIS stuff on top or whether it’s, you know, what what people might consider a more content neutral principle. Correct.

 

Leah Litman So we’re usually pretty down on the court, rightfully so. I did want to make a positive statement. Listeners, don’t be concerned. I promise. This is not a cry for help. Kate has not actually taken me hostage.

 

Kate Shaw Although I am now worried I should like phone a friend, Melissa in, to talk you down from whatever you’re going to say, but I am all ears. I’m very excited to hear it.

 

Leah Litman This is why we all need to do episodes together, because otherwise the universe will just become out.

 

Kate Shaw We’re out of whack. We’re out of balance. That’s true. But go on.

 

Leah Litman One thing I wanted to say is that I really thought the justices did seem to be refreshingly humble about their institutional role, and particularly their own competence to assess these questions. You know, questions such as could the Internet continue to work if you can sue based on, you know, search engine results or could the Internet work without recommending content? You know, to them, they were hesitant to take the reins and be the ones to draw this line. You know, several of the justices invoke this concern. And to no one’s surprise, you know, Justice Kagan put it especially well in this exchange. So let’s let’s play that here.

 

Clip Yeah. So I don’t think that a court did it over there. And I think that that’s my concern is I can imagine a world where you’re right that none of this stuff gets protection. And, you know, every other industry has to internalize the costs of its conduct. Why is it that the tech industry gets a pass? A little bit unclear. On the other hand, I mean, we’re a court. We really don’t know about these things. You know, these are not like the nine greatest experts on the Internet. And I don’t have to I don’t have to accept all them is blatch the sky is falling stuff to accept something about. Boy, there is a lot of uncertainty about going the way you would have us go, in part just because of the difficulty of drawing lines in this area and just because of the fact that once we go with you, all of a sudden we’re finding that Google isn’t protected and maybe Congress should want that system. But isn’t that something for Congress to do, not The Court.

 

Kate Shaw So so I do agree with that relatively positive take on where the court was, although I’m still, like reeling from the fact that you voiced it earlier. And another point, this is sort of another positive take on the argument about a number of the justices, but maybe especially not surprisingly, national forensics champion Ketanji Brown Jackson, who in some ways kind of should have been arguing this case for the petitioners. But she, among other things, brought this really refreshingly non sort of fetishistic textualist approach to statutory interpretation. And I think maybe that was best expressed in this clip.

 

Clip If you look at the statute, it says protection for Good Samaritan blocking and screening. If you take into account Strassmann Oakmont, if that those things I thought were like a given what what the people who were crafting this statute were worried about was filth on the Internet and the extent to which because of that court case and perhaps others, the platforms were not being incentivized to take it down, because if they were trying to take it down like Prodigy, they were going to be slammed because they were going to be treated as a publisher. And so the statute is like, we want you to take these things down. And so here’s what we’re going to do.

 

Kate Shaw And this is an idea she returned to again and again, like, what was this statute for? And that should inform the interpretive endeavor, right? Some of these hypos about pro-ISIS YouTube, I think, kind of go out the window because Congress, you know, it seems, was not trying to protect that sort of action or conduct. And just in general, I thought it was really refreshing to hear this focus on what Congress was trying to do or achieve, broadly speaking. And, you know, kind of the reason I thought that maybe she was sort of standing in for the petitioners lawyer here is because if what we’re asking about is what Congress, broadly speaking, was trying to do and protect, taking a hands off approach to like just letting a thousand flowers bloom on their platforms was not really consistent with what Congress was trying to do. It wanted to incentivize platforms to actively take down harmful conduct. And I don’t know that that means they’re if they decide they’re not doing a good enough job, they’re still entitled to this kind of absolute or blanket immunity. So that’s not really the argument that the petitioners were making. But Jackson, I thought, made it at points really effectively.

 

Leah Litman Yeah, it was almost as if she was suggesting that the future of the Internet should not be decided based on which dictionary Neil Gorsuch picks up on a Tuesday morning. Because I love it. I love it. If so.

 

Kate Shaw I wonder if he would have taken umbrage if he’d been there in person. She you could only actually make these arguments on this today because Neil was home sick in any event. So that’s Google versus Gonzales. It’s pretty clear that the Internet is not going to end with a bang, maybe not even with a whimper. But, you know, to the point we were sort of identifying if the court does at least gesture toward what some limits it might be willing to accept in a future case might look like, That is going to matter a lot in terms of the signals it sends, I think, to lower courts, like if there are more of these cases brought like lower courts maybe will step into space if in fact the court decides, you know, does say something substantive about section 230, lower courts will sort of take those cues. And potentially this is an issue that will sort of play out in more cases in the lower courts and that eventually in a different vehicle will end up back in the Supreme Court. So it doesn’t just matter sort of what the kind of bottom line ruling in this case is. You know, this is always true, but it seems especially true here. It matters a lot what the court says in its opinion, finding as we are almost sure that it will for Google.

 

Leah Litman [AD]

 

Kate Shaw So that brings us to the second case, Twitter versus Tumblr. It seemed during the argument in Google as though the justices thought that these cases could be resolved by adopting a narrower theory for when social media companies may be liable for aiding and abetting terrorism under the Anti-Terrorism Act. But then when you got to the oral argument in Tumblr, it wasn’t totally clear that the justices were on board with this either. Or at least not clear that the justices were obviously sympathetic to the social media company’s theories for why they didn’t aid and abet terrorism by, you know, promoting content and allowing terrorist groups to coordinate with one another using their platforms. So at times, the companies seemed to want a rule that there is only aiding and abetting liability if the companies intend to aid in a particular attack or have reason to know about a particular attack. But the justices very clearly did not like that theory because, as they pointed out, if you know you’re sharing ICE’s content, you don’t need to know about a particular attack. You know, that’s what ISIS does. But other times, the companies seemed to want a rule that said like, well, you have to do something affirmative to aid and abet rather than merely failing to take action. And Justice Kagan really blew up that suggestion in a hot minute. So let’s play her initial question here.

 

Clip Mr. Waxman, suppose this set of facts that many terrorist organizations use, the social media services provided by your client, that they do so to recruit other members for, you know, for for purposes of enhancing their terrorist activities, that your client knows this because government officials, journalists, other people have pointed it out. Now, I’m going to change one fact, I think, so far. We’re actually pretty much in the real world. Right. I’m going to change one fact, which is that instead of having a policy against this and trying to remove this, this this various terrorist content that Twitter had just said, let a thousand flowers bloom, we’re not going to touch a thing. But, you know, it knows that all of this is happening. But it just it’s it does not have a policy of trying to remove. Then do you fall within the language of the statute?

 

Leah Litman And Seth Waxman, the lawyer who was representing Twitter, initially said, no, you know, the company couldn’t be liable then. And Justice Kagan responded with, you know, basically, no, bro. And so here, here, here’s her actual response.

 

Clip I guess it just strikes me as quite your answer strikes me as quite something, actually. It’s like, what part of Halberstam are of the statute? Do you think at that point that there’s not at least a jury question on you know, Twitter, in my hypothetical, is basically saying, you know, we know that there’s a ton of terrorist use of our platform that’s going directly to enhance terrorist activity worldwide, and we’re not going to do a thing about it. So not like did you do too much? Did you do it? You know, could you have done a little bit more? But we wipe our hands of it such that, you know, I mean, just I mean, you know, that that’s going your platform is providing substantial assistance to terrorist activity. How can it be otherwise?

 

Leah Litman This was super interesting to me because it seemed as though Justice Kagan was wondering what might happen in a completely hypothetical world where we are definitely not living in now, where you have a platform like Twitter that doesn’t try to enforce content moderation policies stringently, you know, that does in some ways seem to describe, you know, the Elon Musk era of Twitter. And so it didn’t necessarily seem to be that far off.

 

Kate Shaw No, not at all. You know, and at times, it did seem in the argument like the justices were so unsatisfied with the different theories in front of them that they just kind of wanted to go back to Section two, throw and turn, rather than if the justices in Google seemed to want to turn that case into an Atta case during this argument. At points, they seemed to want to turn this case into a section to throw case like Justice Kagan opened her questioning of the plaintiffs lawyer with like, why isn’t this lawsuit barred by Section 230? So she was actually happy to make it a section to 30 case again. You could hear the justices frustration with the proposed limits on liability. In other questioning from Justice Sotomayor and Justice Kagan, there were some funny interactions and exchanges between them. So let’s play those clips now.

 

Clip Talk to me about what you hear a lot of a lot of questions, and I hope that I remember them all. If I have an idea, don’t worry, I’ll come back. Okay. Thank you.

 

Clip Violation of that, right? Mr.. I realize you have a lot of questions piled up there.

 

Clip I do want them to come back to them, though.

 

Clip I just history. I mean, the conduct is the provision of a platform by which to communicate with each other and other members of ASIS and by which to recruit. So you can, you know, say it’s the failure to better police the platform, but it’s the provision of a platform.

 

Clip The services. I feel guided to not.

 

Clip Answering Justice Sotomayor’s questions, but I’m just going to pile on a little bit, if you’ll forgive me.

 

Clip I have I think I have them in mind and I will come back to them.

 

Leah Litman You know, just based on what happened in the arguments in these two cases, I don’t think, as we were saying, the court is going to take a big bite out of Section 230 immunity. The only question is whether it preserves a possibility for some smaller bites out of Section 230 in the future. And I really have no idea what the court is going to do on the Anti-Terrorism Act. Part of me thinks that they should do what’s called dig the cases at this point. So a dig just means dismissing the case as improvident, granted, which would mean the court would say we shouldn’t have even considered this case. We’re just not going to issue a decision in it. And we’ll let the Court of Appeals ruling stands. And a part of me wonders whether they should do this, because these cases no longer seem like, you know, if they ever were good vehicles for thinking about Section 230 questions. And it’s not clear what the court can do here, which makes it seem like they should do as little as possible, which makes me think, like, should they do anything at all? But one thing the cases did underscore for me is how utterly broken this new format for oral argument is. You know, in both cases you had two parties arguing for the same side go first, and those two parties together were getting like 2 hours of oral arguments time and then the person on the other side would get something like 35 to 45 minutes. And that wasn’t how time was allocated. You know, one party was supposed to get 20 minutes, the other ten and then the other side 30. But the story item questioning on top of the other questioning just allows it to go on way too long. And at a certain point you’re just repeating things and not getting answers to questions and then you get too tired, you know, before you get to the final party and they don’t get the same amount of time. It just seems to not be going well.

 

Kate Shaw Also, even if you listen to these arguments, not in real time after the fact, that like 1.5 speed, like 3 hours for each case is way too much and is not just for us that I think I make this plea to the chief justice like he’s got to rein in the length of these arguments. It’s not serving anyone on a couple of lighter notes about these arguments. One man, it is good to be Seth Waxman. Right. And an established member of the Supreme Court bar, like there was a moment between Waxman and the chief justice very close to the beginning of the argument that just has to be heard to be kind of believed. So let’s play it now.

 

Clip Fact of substantial assistance. What happened here? I’m sorry, Can I just finish my sentence? Okay. Okay. What we have here is an alleged failure to do more to ferret out violations of a clear and enforce policy against assisting or allowing any postings supporting terrorist organizations or activities. I’m sorry, Mr. Chief Justice.

 

Kate Shaw I mean, just to be clear, for people who don’t listen to a lot of Supreme Court arguments, this is not a thing that one does, which is to say, wait, I’m not done yet, Mr. Chief Justice. But Waxman apparently does.

 

Leah Litman So one on Twitter at Nate’s fault had this amazing characterization, which I had to share because I just loved it. So he characterized this as chief, I’ll let you finish. But Beyonce, they had the best album, which, you know, hashtag. That’s definitely true. Loved it.

 

Kate Shaw I was like going for a run around Prospect Park when I heard this part of the argument. And I really just kind of like yelped because they don’t typically do that. But in any event.

 

Leah Litman No. And yet it almost happened a second time during the same week. You know, we have talked about the insularity of the Supreme Court bar. That is the group of lawyers who regularly argue before the court and how the justices really like hearing from, you know, the regular lawyers on the bar. And that was really on display here. So here’s a similar exchange from Gonzales versus Google.

 

Clip If YouTube labeled certain videos as the product of what it labels as responsible news providers, that would be that would be Google’s own content, right?

 

Clip Yes. Yes. And yes. And I say one thing just because I forgot to mention something else. Sorry.

 

Leah Litman Back to Twitter. Seth Waxman’s rapport with the justices didn’t come out only in asking them for more time. It also came out in admitting he didn’t deserve more time. So let’s play that clip as well.

 

Clip You can finish your sentence. Sadly, I’m afraid I did finish my sentence. Thank you. Thank you.

 

Leah Litman [AD].

 

Leah Litman So now on to previewing the cases the court will hear this week. We will be looking ahead to what the court has in store. First will note what it won’t be doing. So the court actually removed one case from the February calendar. That’s Alexander versus Mayorga. That was the case involving the challenge to the administration’s Title 42 policy of turning people away from the country in light of public health concerns here related to COVID 19. So the court removed the case from the calendar, probably because the administration announced the expiration of the emergency declaration on COVID 19 that had justified the expulsion policy at the outset. Two things I wanted to note about this. One is just the procedural oddity of how the court has treated the case up until now. So while the case involves a challenge to the Title 42 border expulsions, the actual issue that the court was going to decide in the case was only whether a group of Republican led states could intervene to defend the border expulsion policy once the administration announced it was going to end it. And part of why this was important to me is that the only issue the court was reviewing in this case was a threshold antecedent procedural question, a question you have to decide before you determine whether the policy is legal. So it’s not about whether the border expulsion policy was legal. And even though the court was only deciding that threshold procedural issue, not whether the policy was actually lawful, the court still decided to put on hold a lower court’s decision blocking the policy, which effectively required the administration to continue the policy. And that is not what the court did last term in the CBA case or how the court justified what it did in the SBA case.

 

Kate Shaw And in the SBA case. You may recall the court declined to block SB eight the law that effectively shut down access to safe and legal abortion in Texas even before the court overruled Roe versus Wade. And there the court said, well, we can’t block SB eight because the only questions before us are these threshold procedural issues. And we’re not certain about how those threshold procedural issues should be resolved. So then fast forward to now when the only issues before the court about the border expulsion policy were threshold procedural issues, and yet the court managed to find a way to block the policy, which is just so curious.

 

Leah Litman So the other thing I wanted to note about the border expulsion case is how I expect that the end of that policy and the administration’s ending of the public health emergency declaration might come up in the big case The court will still be hearing this week. And that is, of course, the administration’s student debt cancellation policy. And the reason I think that will come up is that Sam Alito is still dying to play gotcha since he didn’t get to do so in the Section 230 case. And he’s going to want to play gotcha with Solicitor General Perry Lugar and say you said the emergency is over in one case and not over and another. Aha, I got you. You know.

 

Kate Shaw You think there’s going to be that sort of like pent up energy from Sam. We’re just going to see all play out in this case.

 

Leah Litman You know, it’s either that or he just continually sustains a level of rage without having to actually, like, let things just stew in. So hard to say. But of course, you know, the gotcha I want to make clear overlooks how the justifications for the policies are actually quite different. The student debt cancellation response to the continuing effects of the COVID pandemic, you know, the economic displacement. The border expulsion policy, however, responded to levels of transmission of the disease. But, you know, never let a little lore in facts get in the way of a good time.

 

Kate Shaw Nope, never. So that, of course, is a good segue way to the Biden administration’s cancellation of some student debts. As a reminder, this case involves the administration’s announcement from August 2022 that the administration is canceling up to $10,000 in student loans for eligible borrowers and then actually up to 20,000 for borrowers who also received Pell Grants. The announcement followed a number of loan repayment pauses in response to the COVID pandemic by first the Trump and then the Biden administration. And then this past August, the administration announced that it was ending. These across the board pauses in December of 2022, but that it was going to provide permanent relief to borrowers whose income fell below certain thresholds. And it accompanied that announcement with an explanation that it had concluded that it needed to do this to avoid basically catastrophic economic effects of the pandemic on affected borrowers. It relied in doing this on a statute called the Heroes Act, which was passed after September 11th, and which authorizes the Secretary of Education to waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under Title four of the Education Act. The statute also authorizes waivers or modification as the secretary deems necessary in connection with a war or other military operation or national emergency. And one of the most important issues in these cases, and this is what we’re going to talk about today, right. Lia was talking about the kind of substantive emergency determination and how, you know, Alito and others might decide to sort of press on any potential inconsistency with the way the Biden administration is treating emergency in this case versus at the border. But we’re actually going to put those kind of substantive authority questions to the side for today and really talk about this kind of threshold procedural issue, which is whether the court should decide. Not at all. Whether the student debt cancellation was legal. As my con law students this semester lias called my students most semesters. Common law students everywhere either are learning or have learned. Courts are only supposed to hear cases where a plaintiff has standing to sue and a plaintiff has standing to sue only if they have experienced or will immediately experience an injury from the policy that they are challenging. Right. You or I may dislike a lot of things the government does. We might even think a lot of things the government does are unlawful or unconstitutional. But that obviously doesn’t mean we get to march into court and ask a court to block the government from doing all of those things.

 

Leah Litman Yeah, but that’s because we’re Democrats. Because, you know, it turns out it’s actually hard to come up with a defensible theory of standing here. But if we learned anything from last term or anything from the arguments earlier this term, you know who is going to let a little jurisdiction or issue about whether the court should even decide a case stand in the way of the court taking down some Democratic administration’s policy or some Democratic initiatives. So in some ways, to describe the theories of standing in this case are to say why the theories make no sense. So in one case, the plaintiffs are one person who isn’t eligible for student loan cancellations at all, and another person is someone who’s eligible for some of their loans to be canceled, but not all of them, and wants more of their loans to be canceled. And if you’re wondering how a policy canceling other people’s debts, injuries, people whose debts won’t be canceled. Listener You’re not alone. And certainly if you’re wondering how a policy that cancels some of your debts, but not all of them injures you in a way that entitles you to challenge the entire policy in court and make the administration not cancel anyone’s debts at all. You know, we’re just not going to be able to help you out like those people aren’t injured.

 

Kate Shaw Right. And aren’t injured in a legally recognized. Yes. Right. They might be mad. You might be mad that you didn’t get all the loan forgiveness instead of just some of the loan forgiveness. You might be mad that you didn’t get any loan forgiveness. You might be mad that other people did get loan forgiveness. You have Twitter as an outlet if you’re mad. But the question is whether you get to go to a federal court and actually get a federal court to enjoin the program. And as a general matter, as Leah’s description, you know, opened with the answer to that is pretty easy. These are not circumstances that would ordinarily give you the kind of injury a court would recognize.

 

Leah Litman Yeah, I mean, I’m mad Beyonce didn’t win album of the year but like, I can’t sue to make that happen.

 

Kate Shaw But she was just so gracious about all the other things she did win and didn’t seem mad at all but I too was mad on her behalf. But in any event, she’s not going to federal court and there’s a good reason for that. Okay. So those are the individual plaintiffs, the other group of plaintiffs in these cases and the parties on whom the standing analysis in these cases is probably going to focus our group of Republican led states that have sued also to stop the debt cancellation. The case is captioned Nebraska versus Biden. And, you know, there’s kind of an important precedent. Here is a case called Massachusetts versus EPA, which involved the states challenged to the EPA’s failure to regulate climate change. And the court had said basically that states get special solicitude in the standing analysis and that they may have an easier time establishing standing at least where they’re saying that they have some injury to something like their sovereign or quasi sovereign interests. We turns out we don’t really know exactly what sovereign and quasi sovereign interests are. But newsflash, the Supreme Court doesn’t either. So how do these states say that they are injured? There seem to be two theories. One is specific to Missouri and even more specifically how Missouri has set up certain state agencies. So we will start with that theory. Missouri says it is injured because the student debt cancellation injures the Missouri Higher Education Loan Authority. I’m going to call it Mahila. I’m not sure how to pronounce it, but I think that works. And that is a distinct legal and financial entity set up by the state of Missouri. So how is Mahila or Michaela injured by the student debt cancellation, you ask? Well, what Missouri says and it is Missouri saying this, not the loan authority that could become important. Missouri says that if a federal government cancels some student debt, then some debt holders will consolidate some of their outstanding debts, some of which are held or serviced by this loan authority. And if those other debts serviced by the loan authority are consolidated, then the loan authority will make less money. And if they make less money, they won’t contribute to the Lewis and Clark Discovery Fund, which is a fund that makes capital improvements to higher education in Missouri.

 

Leah Litman So if that sounded like a lot of steps in the chain of causation, we’re with you. Usually that many steps in a chain of causation, especially a chain of causation that depends on the independent actions of entities that aren’t before the court like McCulloch. That doesn’t work to establish standing. But again, here the plaintiffs are challenging a Democratic policy which increases the likelihood that the court will find that they do have standing. But it’s not just that this standing theory has too many steps in the chain of causation. It’s also that McCullough is into Missouri. So it’s not clear why Missouri gets to assert injuries to mo humor, which are speculative to begin with. McCullough is a separate legal and financial entity. They have the power to sue and. Be sued and Mozilla chose not to bring a lawsuit. So the entity that is supposedly injured chose not to bring a lawsuit because it doesn’t think it’s going to be injured yet. It’s even worse than that. You know, their assets, Mozilla’s assets are, as we said, distinct from the states, and they’re not revenue of the state. They don’t go to the state legislature or state treasury. So this seems to be a problem to the extent the state is saying we’re injured and you need to take us seriously, you know, because we’re a state and because, I guess three crappy theories of standing or better than two. You know, the state plaintiffs also claim they’re injured because they say student debt cancellation would reduce the tax revenue that states receive. This, too, seems to be pretty squarely foreclosed by the court’s prior cases, which obviously don’t matter because starry decisis is for suckers and law isn’t real, at least when you’re at the Supreme Court challenging a Democratic policy.

 

Kate Shaw But assuming for the sake of argument that you do care about the law, there is definitely a lot of law out there that suggests that this theory of standing will not do so. One very unpleasant case is Pennsylvania versus New Jersey, which said that Pennsylvania didn’t have standing to challenge a New Jersey tax that resulted in Pennsylvania residents paying less taxes to Pennsylvania because under Pennsylvania law they would receive a tax credit for the taxes paid to New Jersey. The point here was that it was Pennsylvania’s choice to have a law that made another entity’s financial policies have tax effects in Pennsylvania, which seems like exactly the situation here. It’s the state’s laws that are tied to federal policy that Missouri says will have this financial impact on the loan authority. But there are also many, many, many cases that say a federal policies, incidental effects on state taxes don’t amount to a cognizable injury. Right. Any every federal policy could have some effect on state tax revenues. And it’s going to be speculative and conjectural what kinds of effects they have. And the point is we don’t generally say that is enough to allow the states to sue, because it would mean states could sue any time the federal government spent any money, at least if the president is a Democrat and the state ag is a Republican.

 

Leah Litman So that’s standing.

 

Kate Shaw That’s standing.

 

Leah Litman Of, you know, we’ll leave the merits of the student debt issue to next week until after the court actually hears the argument.

 

Kate Shaw Okay. So much more to come on this case and the other cases the court is hearing next week. Let’s briefly mention the court is finally issuing opinions. So we got one opinion in Helix versus Hewitt, one in Barton were four versus Buckley. We are not going to cover those opinions. And then we got one in Cruz versus Arizona, which we will let me just say like two words about the two we’re not going to cover Helix is about who counts as an employee and is therefore entitled to overtime pay under federal labor law. The court basically said if someone is paid on a per day or per hour basis, they are entitled to overtime pay, even if they make in the aggregate a lot of money. And this was a vote configuration that’s kind of worth noting. It was a Kagan opinion with Sotomayor, Jackson, Roberts, Thomas and Barrett, and then dissents by Gorsuch and Kavanaugh. And then Barton were four, said, You can’t discharge bankruptcy, debts accrued through fraud even if you that is the person filing for bankruptcy are not at fault for the fraud. Okay. So let’s turn to Cruz versus Arizona, which is a case that you may recall was about whether Arizona can basically play heads I win, tails you lose. With constitutional rights recognized in previous Supreme Court cases by a bare majority of five, the Supreme Court said no states can’t refuse to enforce or apply constitutional rights in the way that Arizona did. You know, maybe this was an explicit but I think this was pretty clearly implicit in the opinion unless the constitutional right is abortion and the state is Texas.

 

Leah Litman Yeah, got to read read between the lines here. So just to provide a bit more detail. So Cruz, you may recall, involves the Arizona court’s refusal to apply the Supreme Court’s previous decision in Simmons versus South Carolina. Simmons had said that states must inform juries in capital sentencing proceedings whether a defendant will be eligible for release if the jury doesn’t sentence the defendants to death. So Simmons was decided in 1994, and Arizona courts refuse to apply that case to defendants in Arizona, even though people who were convicted of capital crimes in Arizona were not eligible for release after Arizona changed its laws in the nineties. So for two decades, Arizona was pretty much like, yeah, Simmons, Simmons it doesn’t apply here. And we don’t have to inform juries whether defendants would be eligible for release. So in 2016, the Supreme Court tried to put a stop to this madness in Lynch versus Arizona. The Supreme Court said yes, Simmons does actually apply in Arizona and Arizona. Juries must be informed about whether defendants would be eligible for release if they weren’t sentenced to death. But the Arizona courts were not done. They refused to apply Simmons and Lynch to cases that had already been decided specifically when defendants tried to challenge their sentences on the ground that Arizona had not informed juries that they could never be released. The Arizona court said, Oh, you can’t challenge your conviction on that basis. You can only challenge your conviction on the basis of new rules. But Lynch wasn’t a new rule. It was an old rule since it was totally clear under. The sting law that Simmons should have applied in Arizona. So basically before Lynch, they said Simmons didn’t apply in Arizona. And then after Lynch, they said Simmons had always applied in Arizona. And this means defendants lose all the time and no one can enforce their rights or get relief under Simmons. So five four vote. In an opinion written by Justice Sotomayor, the court said, No dice. You can’t refuse to apply. SIMMONS On conflicting grounds on one hand that it’s an old established rule when you were previously insisting no such rule existed in Arizona. Yay!

 

Kate Shaw Okay, so this is Leah where you’re going to say more nice things about the Court?

 

Leah Litman No, You know, so I wrote a short piece in Slate about how, you know, the result in the decision is worth celebrating. You know, it took three decades to bring the rule in Simmons to Arizona. That is, you know, going to be an important development and seems like worth breathing a sigh of relief over still we did come one vote away from plunging further into legal nihilism so maybe some muted celebrations and relief. And I did just want to point out it’s actually the same lineup as we saw in another decision that by the same five four vote also avoided plunging us into a nihilism that would have made it impossible for people who were convicted of capital crimes to challenge the method that the state was going to use to execute them. That was Nance versus Ward. So just kind of an interesting, you know, pattern in these cases. And, you know, since I refuse to say something nice, I did want to highlight one concern that and Lipton, a professor at Tulane and associate dean at Tulane raised which is she’s worried that some of the justices will use Cruz versus Arizona which said, look, the state courts interpretation of state law here is insane and unreasonable, that they will use that as cover and a basis to adopt a rule that says federal courts and the Supreme Court get to review whatever state courts do on election law, you know, under the guise of the independent state legislature theory in the North Carolina case. You know, happy to talk more about that later. Why that’s not justified and why that would be totally unwarranted. But I think she is right to say, I can imagine a justice playing some you know, I gotcha here.

 

Kate Shaw I didn’t see that. That is a good and really scary flag. And so I’m glad you mentioned it, although I hope it never comes to pass. So let’s just maybe do a very little bit of court culture slash non SCOTUS news before we wrap up. Is that good?

 

Leah Litman Sounds good.

 

Kate Shaw So one thing we wanted to flag was an amicus brief filed in a case called Jack Daniel’s versus VIP Products. This is a case that’s going to be argued in March. It involves trademark law, pretty pooped themed dog toys. So I am sure we’re going to spend some time with the case. The dog toys are called bad spaniels. They look like bottles of Jack Daniels there, various poop references on the toys. We will return to this case. But for now, the amicus briefs in the case were filed last week, and one brief in particular drew a lot of attention. It was filed by a group that calls itself mischief. It is basically amicus brief as performance art. The organization or group describes its mission as engaging in elaborate interventions designed to highlight and expose the absurdity of various systems. I gather now, including the legal system, or at least the Supreme Court, since I think this is their first foray into amicus brief writing the brief kind of defies easy description, and it’s like a 160 plus pages. And I honestly just said it before we sat down to record. But it does contain, among other things, various connect the dot like art pieces directed to slash inspired by the individual justices and their law clerks, including naming the law clerks. There is some argument embedded in this performance art about, you know, the broad scope of the First Amendment’s protection. The brief was accompanied by a motion to file colored pencils, along with the brief, which is, you know, posted on the Supreme Court’s website. You know, I look, I haven’t really had time to digest it well enough to have a developed view. I kind of think I come down where we have been in some of our commentary recently on some particular SCOTUS advocates, which is like admiring a disruptive instinct. There’s a place for that, even like, you know, just real actual disrespect for the court as an institution. If it’s acting in ways that warrant that, I’m just not sure I like the execution here. Unlike, say, like the amicus brief filed by The Onion last year, which was like disruptive and genre defying and absolutely brilliant, and that was in the case of Noveck versus Palmer, which the court actually denied cert in last week. But this brief does not rise to that level. But it is a significant enough amicus brief that I thought it was at least worth mentioning. I don’t know. Did you have a chance to look it?

 

Leah Litman Yeah. So I come down where you are, which is, you know, no problem with, you know, this approach to amicus briefing. I just didn’t think this one was particularly well-done. It just had some errors. Like it misspells Justice Jackson’s name. It doesn’t even correctly identify all the law clerks. And it just seems like if you’re going to do this, you have to do it well, like The Onion did. But but I don’t have a problem with the kind of approach to, you know, the Supreme Court that I take this brief is adopting.

 

Kate Shaw Right. In so far as it has an approach or a view of the Supreme Court that is discernible. Yeah, there was definitely like some pearl clutching. About the brief being like, you know, displaying a lack of propriety or, you know, decorum or something in that. I definitely don’t share it.

 

Leah Litman Like, did you want to talk about a lack of propriety? Can I interest you in what is happening at the Supreme Court like by the Supreme Court?

 

Kate Shaw Right. We can please clutch pearls tightly over all of that. And then last but not least, and only much more serious note, we had the primary election for the Wisconsin Supreme Court race that we have been talking about, and that will determine control of the Wisconsin Supreme Court. If you think we have been cheeseheads thus far, we have a lot more in store. So stay tuned. So here are the results. Advancing to the general election are Judge Janet protest tweets. Sometimes people just call her Judge Janet and then former state Supreme Court Justice Dan Kelly. So remember, it was a top to open primary for candidates. Those are the two advancing to the general.

 

Leah Litman Yes. And listeners. Where to start with this one? You know, this race will determine control of the state Supreme Court of Wisconsin, which has been in Republican hands since 2008. And control of the Wisconsin Supreme Court will determine the future of democracy, reproductive health care and many other things. And I don’t think that’s an exaggeration. You know, Wisconsin is one of the states with a pre Roe criminal abortion ban that has caused people to have to flee the state because they needed emergency medical care that doctors are forbidden from providing under that law. And the Wisconsin legislature isn’t fixing that law in part because it’s one of the most gerrymandered legislatures in the country. You know, the Republicans almost want a veto proof supermajority, even though Wisconsinites reelected statewide, a Democratic governor. You know, I think it’s worth pausing over that Wisconsin has drawn its legislative districts in a way such that even when one party might win a majority of the votes, the other party wins control, retains control of the legislature and may even get a supermajority in the legislature. You know, these issues and more are the kinds of issues that the state Supreme Court will be deciding. And the Republican candidate is, you know, Dan Kelly, he is, you know, an extreme MAGA lawyer and person. I mean, Kelly was on the Supreme Court, was actually ousted in 2020 by Justice Jill Kreisky, and he’s trying to make his way back to the court. And what has he been doing since Wisconsin voters kicked him off the state court in 2020? You know, getting money to give advice to Republicans on the fake elector scheme in Wisconsin. He was working for the Republican National Committee as a, quote, election integrity consultant. He is backed by a billionaire family. I don’t know if I’m going to get this name wrong. The Cullens, who have spent almost $3 million on his campaign, you know, they were described by The New York Times in 2018 as the most powerful conservative couple you’ve never heard of. And, you know, the stakes just could not be more stark or more clear here.

 

Kate Shaw So we are doubling down on our regular monthly cheese curd orders and staying very focused on this race over the course of the next. It’s just like a little over a month away, so we will keep on it. I think that’s all we have time for today. Strict Scrutiny as a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and Kate Shaw, Produced and edited by Melody Rowell, Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production Support from Ashley Mizuho, Michael Martinez, Sandy Girard and Ari Schwartz with digital support from Amelia Montooth.

 

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