Reeking of Impropriety | Crooked Media
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June 20, 2022
Strict Scrutiny
Reeking of Impropriety

In This Episode

The Supreme Court handed down 11 opinions last week– 18 more to go. Leah and Melissa recap the outcomes, and then turn to our weekly “Ginni Tonic” segment, because there’s always something new there.

 

TRANSCRIPT

 

Leah Litman: [AD]

 

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

 

Melissa Murray: And I’m Melissa Murray. And we’re alone. And you know what that means, Leah?

 

Leah Litman: Hijinx.

 

Melissa Murray: Will ensue. Okay. So, listeners, we have a very dense episode for you because the court is frantically trying to catch up and finish by the end of June, which is when it historically finishes releasing opinions in argued cases. And at the beginning of last week, it had left 29 opinions and argued cases to release. So with three weeks left in June, that averages to about nine opinions a week. And we got five opinions on Monday and six on Wednesday. So way to save it all for the very end fella’s.

 

Leah Litman: Right. None of the opinions that we did get were the abortion case, the Gunns case, West Virginia versus EPA on climate regulation or religious liberty. I could.

 

Melissa Murray: All B Sides. All B sides.

 

Leah Litman: I’m not sure if I would go that far.

 

Melissa Murray: Maybe. Maybe they’re like Prince B-sides where they’re actually really good.

 

Leah Litman: Exactly or like Taylor’s from the vault. And yes, I mean, the opinions themselves were bad, the issues were important. That’s, you know, important to underscore.

 

Melissa Murray: But they are B-sides, just that these are not the things people are waiting for.

 

Leah Litman: Yeah, totally fair. Totally fair. There are still 18 opinions outstanding and many of the ones that are outstanding are just huge.

 

Melissa Murray: So we did get important opinions and we want to recap them. And we also want to just underscore that in these opinions. Two really bigthemes are starting to emerge and coalesce. And no. It’s not that this is a consensus driven, non partizan court. No, no. One major theme is that it’s your fault if someone else messed up because our system of laws and justice in quotation marks isn’t available to correct errors. That is a major theme of this set of opinions. The other major theme is textual healing, which is to say that these opinions evince big textual energy. And I think this is the kind of thing that could heal some of these rifts on the court and among the justices.

 

Leah Litman: That textual healing it’ll do it.

 

Melissa Murray: Feels so good to me.

 

Leah Litman: In addition to going over as many opinions as we can cram into the time that we have, we will also have your weekly Ginni Tonic segment for you. Cheers. Because truly more and more just keeps coming out when it comes to Ginni, as we predicted would happen, I might add.

 

Melissa Murray: Cassandra Club. Ginni version.

 

Leah Litman: Right. And I do want to make an important note that it was Melissa , Melissa Murray who coined the term Ginni Tonic. We are not actually the same person.

 

Melissa Murray: We’re not a same person. And she does want this on the record in case she ever becomes a federal judge, because I think it’s going to be bad. The confirmation.

 

Leah Litman: Well, no, that’s not even it. I mean, I feel like if people are uncertain who said what the usual default is, you say the funny stuff. I say the inappropriate stuff. Right? Like you’re the clever one. I’m the like insert expletive troll-lito is Justice Alito.

 

Melissa Murray: I think you’re selling yourself short. You are incredibly clever. You said some very funny things on that. Literally, like, like last week, one of your outtakes was like, we couldn’t even include it. It was both profane and funny, which is hard a hard duality to embody.

 

Leah Litman: Always trying to thread that needle. So with that thematic overview slash preview, let’s get into the cases.

 

Melissa Murray: Okay first up from the court was Garland versus Gonzales. So SCOTUS decided this major immigration case that will have very significant consequences on immigrants ability to enforce their constitutional rights. That said, it could also have the effect of tamping down on states like Texas, for example, having the ability to control Democratic presidents immigration policy. So this is me doing my very best, Kate Shaw, to have a silver lining. The specific issue in Garland versus Gonzales is whether federal courts have the power to issue class wide injunctions when a case involves certain provisions of federal immigration law. So let me back up a minute. Class wide injunctions are injunctions that apply to an entire class of people, as the name suggests. So a very large group, rather than to just a few specific individuals who are plaintiffs in a case. And injunctions, of course, are judicial orders that require or prohibit defendants from doing something. So here, a group of immigrants sought an injunction requiring the executive branch to give them individualized. Bond hearings to determine whether to continue to detain them beyond six months while the government figured out their immigration case and whether or not to deport them.

 

Leah Litman: So the case involved the meaning of a provision of federal law that reads as follows. No court other than the Supreme Court shall have jurisdiction or authority to enjoin or restrain the operation of certain provisions of federal immigration law, other than with respect to the application of such provisions to an individual alien. That’s the word that the federal immigration law uses against whom proceedings under such part have been initiated. So in a63 opinion by Justice Samuel xenopho-lito, Alito.

 

Melissa Murray: That’s a good one.

 

Leah Litman: Thank you. I try. The court concluded that this statute does not allow a federal court to enjoin that is too direct to prescribe or impose by order or restrain provisions of federal immigration law on a class wide basis.

 

Melissa Murray: So Justice Sotomayor wrote the primary dissent for the three Democratic appointees. And technically, I think it’s actually a concurrence because she agrees that the immigrants should lose here, but she doesn’t agree with the reasoning that the majority employs. But it still has very strong dissenting flavor. And that may just be because she’s really taking it to Justice Alito. So she described the majority’s opinion as purportedly textualist, but as she says in truth, elevates piecemeal dictionary definitions and policy concerns over plain meaning and context. So that is kind of a sick textual burn, if you will. And I think maybe the seeds of a new merch line, purportedly textualist.

 

Leah Litman: Purportedly textualist, could provide. I feel like a starting point for us to come up with that one singular merch line we’re still searching for. But yeah, I did love that line.

 

Melissa Murray: So she also warned that the majority’s opinion will leave many vulnerable non-citizens unable to protect their rights. And that’s because of how immigration proceedings work. The federal government detains many, many people for immigration related reasons and people who can test their status in immigration proceedings. That is, people who say they’re not removable or who say that they’re entitled to various forms of relief don’t actually have a right to counsel. So let me repeat that. You don’t have a constitutional right to counsel in immigration proceedings. So that is a problem.

 

Leah Litman: What classified injunctive relief did in that world was to ensure that if a court concluded no, the people who are detained under this provision are in fact entitled to bond hearings, then everyone who was being detained under that provision would actually get a bond hearing because an injunction ordered and required under a threat of contempt, the executive branch, to actually give every individual a bond here.

 

Melissa Murray: So if one person had a great lawyer who successfully argued this and got them a bond hearing and a classified injunction, it would apply to all of the non-citizens who are making the same claim, even if they did not have the benefit of good lawyering.

 

Leah Litman: Exactly. It would benefit everyone. But now, without the possibility of classified injunctive relief, every single immigration applicant will have to bring their own individual case and raise in their own individual case. You know, you need to give me a bond hearing. And without a constitutional right to counsel for a group of people who might not be native or fluent English speakers and say following every single development in immigration law, that’s going to result in a lot of people falling through the cracks and into possibly excruciatingly long immigration detention.

 

Melissa Murray: Could that possibly be the reason why? Is that a feature or a bug of this opinion?

 

Leah Litman: There’s a reason why I called him xenopho-lito.

 

Melissa Murray: So Justice Sotomayor went further and said it in this way. As she put it, it’s one matter to expect non-citizens facing these obstacles to defend against their removal in immigration court. It is another entirely to place upon each of them the added burden of contesting systemic violations of their rights through discrete collateral federal court proceedings. The burdens will fall on those least able to vindicate their rights, as well as the law firms and nonprofit organizations that will endeavor to assist as many of these non-citizens as their capacity permit. So she’s actually making a kind of structural argument like there is a whole problem here with access to justice and this system. And this only this opinion exacerbates it.

 

Leah Litman: It’s also worth pointing out that the majority’s rule, I think, is pretty bad for a judicial administration, like requiring a bunch of people to file the same case over and over in the federal courts individually isn’t great for just efficiency or administration.

 

Melissa Murray: Or judicial resources. Like I mean

 

Leah Litman: No. Yeah,.

 

Melissa Murray: Yeah, yeah.

 

Leah Litman: And, you know, this is supposed to be what class actions could address, you know, systemic, unconstitutional government conduct but hey, if you only take, like, a fifth of the cases presented to you or less than a fifth. Like, what do you care? Like docket control is for suckers.

 

Melissa Murray: Basically.

 

Leah Litman: So.

 

Melissa Murray: Docket control’s for lower federal courts.

 

Leah Litman: Exactly. Not for us kings. I also think there’s a reason why Justice Sotomayor called the majority’s opinion purportedly textualist, because the relevant clause in the statute that says, well, you can enjoy these provisions with respect to the application of such provisions to an individual against whom proceedings have been initiated, doesn’t distinguish between class actions on one hand and non class actions on the other. The statute doesn’t even say class actions. And if a class that is all of the people that a lawsuit was filed on behalf of included only those people against whom immigration proceedings had been initiated. Then the injunction would apply only to them as permitted by the statute. And, you know, other provisions in federal immigration law do specifically list class actions. So it’s weird to read this provision as about class actions. When the Congress that enacted the statute knew how to refer to them.

 

Melissa Murray: It’s also worth noting that in a prior case, Califano, the court had interpreted a provision of the Social Security Act to permit class actions, even though the statute provided only that quote, any individual could obtain judicial review. So there is another statutory analog that the majority could have used to analyze this. And the court rejected the government’s argument that the word individual required a case by case adjudication of claims under Section 205g. That’s compatible with class. Really?

 

Leah Litman: Yeah. I mean, this opinion is really extreme. That’s extremely textualism. If there ever was some you know, Justice Alito is just going like straight Leroy Jenkins on immigration law here.

 

Melissa Murray: Wait who’s Leroy Jenkins?

 

Leah Litman: Do you really not know?

 

Melissa Murray: This this. Is am I really on the back foot here?

 

Leah Litman: Yeah. This is a cultural reference that I was able to see.

 

Melissa Murray: Who is Leroy Jenkins?

 

Leah Litman: Okay. So it was this hilarious video of someone playing a video game with their friends and the friends develop this strategy of we’re going to like hold back and wait. And then this one guy just decides to go on the attack into the room against the strategy. And as he does it, he yells. Leroy Jenkins.

 

Melissa Murray: I’ve never heard of this.

 

Leah Litman: Like, you’re going to have to look that up.

 

Melissa Murray: Thank you. Like I learned something like cultural from that. This is amazing. Who is Leroy Jenkins? I’m going to use this on my kids. They’re going.

 

Leah Litman: There you go.

 

Melissa Murray: They’re gonna be like how do you how do you know about Leroy Jenkins? I know everything. I know where you spend your time. I know what you’re doing at every hour of the day. It’s gonna help me.

 

Leah Litman: Okay. Oh. Did also want to note on the reportedly textual bona fides. Invoking our. Co-Host who is absent, Kate Shaw, who previously invoked Victoria Norris. And Bill Eskridge’s article Textual Gerrymandering. This opinion might be one of the worst examples of textual gerrymandering and contextualization I’ve ever seen, because the opinion just singles out the phrase an individual alien and is like, Therefore, you know, this means it can’t apply to class actions, even though the statute doesn’t say that and like read in context, it’s just not clear what it does.

 

Melissa Murray: So there is a possible upshot to this opinion. Our former guest, Erin Glenn Melnick of immigration counsel, wrote on Twitter that he thinks that Justice Alito’s majority opinion, quote, eliminates most of the lawsuits that Texas at all have been bringing against the Biden administration. So Texas, with the help of some federal judges, has been effectively controlling President Biden’s immigration policy. So they did try to do this under President Obama as well. So I don’t want to suggest that this is unprecedented or novel, but it does sort of single out Democratic administrations. But Texas or other states have filed suits challenging the Biden administration’s attempt to end the Remain in Mexico policy, the attempt to end the public charge rule, as well as President Biden’s enforcement priorities in immigration cases and a bunch of other things. So, according to Melnick, Justice Alito’s opinion concluded that you can’t get an injunction that restrains the operation of the government’s efforts to enforce or implement the relevant statutes unless it’s with respect to persons against whom enforcement proceedings have begun. But that’s what Texas has done in some of those cases. And recall that in the Remain in Mexico argument, SCOTUS requested additional briefing on whether Texas a suit was prohibited by this provision. So Texas has filed suit seeking an injunction that doesn’t apply in cases in which people aren’t subject to immigration enforcement proceedings. So now some of. Texas lawsuits could precede those that seek vaquita of a rule that is caught setting aside a rule under the Administrative Procedures Act rather than an injunction, even though those consequences are the same.

 

Leah Litman: And one other possible avenue for relief that this opinion doesn’t address is the propriety of classified declaratory relief. So instead of an injunction, the court would issue a declaration that the statute means this, or the statute is invalid or something like that.

 

Melissa Murray: All right, so shall we move along?

 

Leah Litman: Let’s go.

 

Melissa Murray: I want to call attention to another case, Denise Sapp versus the United States, which is a really significant and I think super interesting federal Indian law case that produced a really remarkable lineup of strange bedfellows here. So we previewed this case on an earlier show, and it’s about whether prosecutions that happen in so-called CFR courts, CFR Court for code or federal regulations for violations of tribal law, bar a subsequent prosecution by the federal government and federal court under the double jeopardy clause.

 

Leah Litman: So just quick recap about what CFR courts are. Tribes are, you know, distinct sovereigns from the federal government or the states. And some tribes choose to maintain and operate their own courts, tribal courts, where they enforce tribal law. Other tribes, however, have opted to rely on the CFR courts that are established by the Code of Federal Regulations, and those courts also enforce tribal law. And the question here is whether when a tribe uses a CFR court, can there be a subsequent prosecution in federal court by the federal government for violations of federal law? Here, the tribe was arguing that there can be a subsequent prosecution. The tribe’s argument was that CFR courts were the tribes courts, or at least were exercising tribal authority when they punish people for violations of tribal law.

 

Melissa Murray: So the case is fascinating, in part because it features a recurrent conflict in Indian law between a claim of tribal authority and tribal sovereignty on the one hand, and a claim of individual rights on the other. So here, Mr. Dansby claims his right to be free from being put in jeopardy twice for the same offense is violated when he’s prosecuted in the CFR court and then subsequently in a federal court. But the tribe says we want to maintain our courts, the courts that we’ve selected the CFR courts in order to prosecute these crimes without precluding a subsequent prosecution. And that’s in part because federal law has greatly limited the extent of penalties that tribal law can impose. It’s also because prosecutions in CFR courts might be more expeditious than those in federal court. But it’s also because the tribe views the maintenance of the CFR court and the application of tribal law in those courts as an expression of tribal sovereignty. And that’s the part of it that I think always gave us a little bit of pause. I think, about Denise SP’s argument, and it I think it also animates the Gorsuch dissent here. There’s a kind of false consciousness argument that says, you know, the tribes say these are our courts, but they’re wrong, or that the tribes say recognizing these as our courts would be good for tribal authority, but that the tribes are wrong.

 

Leah Litman: So the opinion was six three. Justice Barrett wrote the majority. Justice Gorsuch wrote the dissent where he was joined by Justices Sotomayor and Kagan. And I’ll be honest, that line up in an Indian law case really did give me pause because I had thought, you know, that the government was right here, you know, but the fact that Justice Gorsuch, Justice Sotomayor and Justice Kagan, you know, are on the other side really does. Like, you know give me pause.

 

Melissa Murray: Are you a good person?

 

Leah Litman: So the majority doesn’t ultimately decide whether C.F.R. courts are federal or tribal courts. It says that what matters? The only thing that matters is that Dennis Bee was prosecuted under tribal law and then subsequently prosecuted for violations of federal law. It doesn’t matter if the person prosecuting him in the CFR court is a federal prosecutor who might be exercising federal authority. What matters is the law he is being prosecuted for is tribal law.

 

Melissa Murray: So like these two distinct bodies of law, even though they deal with the same offense, they’re actually distinct. And therefore these are two separate sovereigns and there’s no double jeopardy problem. The dissent, however, takes issue with whether Dansby was prosecuted for tribal law versus federal law. So they don’t see the distinction as quite as stark as the majority does. And Justice Gorsuch and it’s worth noting here that Justice Gorsuch is the only member of the court who comes from the Mountain West, where federal Indian law is a big part of the 10th Circuit’s docket. So I think he feels he has a certain facility with.

 

Leah Litman: This, and I think he does. And that’s why I was suggesting the fact that he was on the other side from like what I thought was right is is really giving me pause about this case.

 

Melissa Murray: Also worth noting, Justice Sotomayor at the beginning of her tenure on the court, served as the 10th Circuit Circuit judge. And in that role, she really took it upon herself to become more familiar with federal Indian law, which had not been as big a part of the docket of the Second Circuit. In any event, Justice Gorsuch says that Dansby was convicted of a federal offense because the CFR court regulations assimilated the tribe’s assault and battery ordinance. The majority declined to address that argument because it wasn’t pressed or passed on below. But it does suggest that the dissent might not be right about this issue for two reasons. One is that there are federal statutes that explicitly incorporate other sovereigns laws like state laws, for example, and the fact that a federal statute doesn’t do so clearly. Here might be a reason to think it is tribal law, not federal law that is being enforced.

 

Leah Litman: And the majority also. And this, I think, is really important, says it’s not dispositive. That is it doesn’t determine the answer here that the assistant secretary must approve a tribal ordinance before that ordinance can be enforced in a CFR court because the secretary of the Interior had to improve the tribal code. You know, that’s enforced in tribal courts as well. And the Supreme Court had already said in a previous case, Wheeler, the prosecutions in tribal court for violations of tribal law didn’t bar subsequent prosecutions by the federal government.

 

Melissa Murray: So sticking with this theme of federal Indian law, the court also issued another decision in a case that combined both statutory interpretation, textual healing and federal Indian law. And that was Ysleta del Sur Pueblo versus Texas. This was a federal Indian law case about the proper interpretation of the Indian Gaming Regulatory Act and the Ysleta del Sur, an Alabama and who shot at Indian Tribes of Texas Restoration Act. The big question in the case is whether the laws permitted tribes to operate on tribal lands, gaming activities that the state regulated but did not flat out prohibit. And I think the actual gaming question, wasn’t it? Bingo.

 

Leah Litman: Yes. Yup. Bingo!

 

Melissa Murray: B-I-N-G-O, B-I-N-G-O, B-I-N-G-O and Bingo was his name O. Yeah, that one.

 

Leah Litman: Nice.

 

Melissa Murray: So in a 5-4 opinion by Justice Gorsuch, the court sided with the tribes and how the federal law only incorporated on two tribal lands state laws prohibiting certain gaming activities, not those regulating them. The court reached this conclusion largely by determining that Congress in the Restoration Act had preserved a distinction that had been established in the court’s prior case, California versus Cabazon. Band of Mission Indians interpreting another statute, but recognizing a distinction between regulation and prohibition there. And so Justice Gorsuch says Congress preserve that distinction in this Restoration Act. So the case has some very typical, flowery, florid Neil Gorsuch hallmarks about statutory interpretation. I mean. Burning for textualism. Here is that few choice snippets. In the end, Texas retreats to the usual redoubt of failing statutory interpretation arguments and unadorned appeal to public policy. Here’s another. We appreciate these concerns. Which aside, he does not appreciate these concerns.

 

Leah Litman: No. Not appreciated.

 

Melissa Murray: We appreciate these concerns, but they do not persuade us. Most fundamentally, they are irrelevant. It is not our place to question whether Congress adopted the wisest or most workable policy, only to discern and apply the policy it did adopt. Neil out.

 

Leah Litman: It’s just his inability to tone it down in any opinion on statutory interpretation like he is incapable.

 

Melissa Murray: Neil’s gonna Neil. Neil’s gonna Neil.

 

Leah Litman: Exactly.Yeah. Yeah. You know, this case, too, led to an interesting bedfellows lineup. The opinion was by Justice Gorsuch, joined by the three Democratic appointees and Justice Barrett. I took this as a possibly encouraging sign for the outcome in Castro, who heir to the pending case about the implications and possible limits to the Supreme Court’s major tribal law opinion. MCGIRT From a few terms ago, just because the majority opinion that Justice Barrett signed starts out with a strong affirmation for tribal sovereignty and the court’s precedents in this area, you know, the majority opinion goes into detail about the history of Texas and states attacks on tribe sovereignty, whereas the dissent by Chief Justice Roberts begins in 1968, as if that’s where history begins, which is like really reminiscent of his opinion from Shelby County versus Holder to me. Like, let’s just pretend none of that other history happened and it’s all good now.

 

Melissa Murray: Well, the dissent is also another really great example of textual gerrymandering and contextualization. It focuses almost exclusively on this language, all and any and really does not focus or even take serious. What the majority is interested in, which is the distinction between regulation and prohibition. So yeah, I wonder what both of these opinions. Dan SB In his later dose or Pueblo suggest for the upcoming term, when the court’s going to take up that Indian Child Welfare Act case, Brackeen versus Holland, which I feel like these cases point in different directions for that case.

 

Leah Litman: Yeah, I would be reticent to like read too much into that. I mean, in some ways, like Dansby I think is like the more relevant one for that. And it’s just hard to know exactly.

 

Melissa Murray: It’s going to be really interesting. On how Justice Gorsuch reconciles his interest in tribal sovereignty and this body of federal Indian law that, you know, he seems to be the one who feels most fluent with. And this argument that the Indian Child Welfare Act is not about political sovereignty but is rather about a racial classification.

 

Leah Litman: [AD].

 

Leah Litman: Okay. So we’re going to move to something of a lightning round because we do have a lot of opinions to cover.

 

Melissa Murray: They brought this on themselves.

 

Leah Litman: Exactly. Exactly.

 

Melissa Murray: It’s almost like they’re trying to hide the news of Ginni by giving us 11 opinions this week on conspiracy theory.

 

Leah Litman: But we will not be stopped.

 

Melissa Murray: We will not!

 

Leah Litman: From our truth finding mission.

 

Melissa Murray: You cannot stop the Ginni and juice. American Health versus Becerra is a case about reimbursement rates for hospitals under the Medicare Act. It was going to be a case about the future of Chevron deference, the doctrine that allows agencies to interpret ambiguous terms in statutes and is a big part of how the administrative state works. But the case didn’t end up being that big of a Chevron case. Instead, the court applied a presumption of judicial review. The idea that courts get to review the actions of agencies and concluded that the Department of Health and Human Services decisions about reimbursement rates were reviewable. And it then concluded that HHS can’t vary reimbursement rates for different hospital groups without survey data. Otherwise, rendering requirements for survey data superfluous. The agency specifically varied reimbursement rates for 340 B hospitals, which perform valuable services for low income and rural communities but have to rely on limited federal funding for support. This case had been styled as a challenge to Chevron, but that doctrine, the idea that courts should defer to an agency is construction of an ambiguous statute goes unmentioned and the court rests instead on its interpretation of the relevant statute, leading us to wonder like, Is Chevron deference a kind of Schrodinger’s deference right? The court’s doesn’t acknowledge it, doesn’t defer, but doesn’t do away with it. It’s in a kind of precarious state of being right now. So Justice Kavanaugh summed up courts reviewing agencies interpretation of statutes this way, he said, After employing the traditional tools of statutory interpretation, we do not agree with HHS interpretation of the statute. Now, the traditional tools language is an invocation of Chevron. That’s what Chevron had said court should do. But Chevron, as faithfully understood, doesn’t actually require the court to agree with an agency’s interpretation, only that the statute is ambiguous and the agency’s interpretation is reasonable. So this is basically the kind of reasoning that Justice Kavanaugh suggested at the oral argument in this case. He was asking if the hospitals were merely asking the court to take footnote nine of Chevron seriously. And that footnote urged courts to employ traditional tools of statutory construction to ascertain whether Congress had actually spoken to a particular issue. So it is invoking the themes of Chevron, but meaningfully the opinion reframes maybe not intentionally or clearly reframes the inquiry under Chevron as whether the court agrees with the agency’s interpretation based on the traditional tools of statutory construction, which I have to say is a pretty significant reframing and not inconsistent with some of the things the Roberts Court does, like these kind of these incremental, sort of subtle moves that, you know, two terms later become like the reason why we no longer have.

 

Leah Litman: We’re not overruling Chevron. We’re just under ruling it and not really applying it. So.

 

Melissa Murray: We’re under ruling it, not over ruling it.

 

Leah Litman: Exactly

 

Melissa Murray: So it’s all really interesting. So the court is giving Chevron the silent treatment, but kind of not really either. And the upshot is the court concluded that the USG wrongfully denied millions of dollars to hospitals in drug reimbursement. So there we are.

 

Leah Litman: We also received another significant arbitration case. Viking River Cruises versus Mariana. This is an arbitration case that we previewed. Now, the case didn’t end up being as big a deal as it could have been, so we’re not going to spend as much time on it. But it did involve some shade that was thrown at Justice Alito, which, of course, I feel compelled to highlight.

 

Melissa Murray: Okay. Why don’t you highlight it?

 

Leah Litman: Well, we got to explain what the court did before I can do the shade.

 

Melissa Murray: So let me do it. All right. The question in the case concerned California’s private attorneys general act and the Federal Arbitration Act. In brief, California’s private attorneys general act allows employees to bring suit on behalf of the state when employers violate labor laws and when they do so, they can seek relief on behalf of the state. So say an employer was sued for minimum wage violations under the Paga Private Attorney General’s Act. An employee could sue for all of the wages that an employer failed to pay, and most of that money would go to the state, not to the employee. But the point is that an employee could sue to recover more than just their own damages.

 

Leah Litman: So the employee in this case had signed an arbitration agreement with her employer, and that agreement contained a provision saying the parties could not bring a dispute as a class or a representative action under California’s private attorney general act. The employee sued in federal court despite that arbitration agreement. And the. Hoyer then said, you can’t do that because you agreed to arbitrate your individual claim and you can’t bring the representative paga claim in arbitration proceedings. So the Federal Court has to dismiss it.

 

Melissa Murray: So in this opinion, the court said basically that the employer’s right, that is because this arbitration agreement says that you must arbitrate your individual claims. You can’t bring a representative claim under Paga. You agree to that. And that’s the end of the matter. Arbitration is the way forward. But and this is a really big but the court said that the Federal Arbitration Act does not prevent a state from creating these representative actions, i.e. the ability to litigate on behalf of the state. And this is the big part. It said that the Federal Arbitration Act allows states to create rules barring agreements that waive the right to bring representative action. So, in other words, California could have a law that says here is a private attorney general’s act that allows citizens to bring suit on behalf of the state. You cannot waive her right to bring a private attorney general’s claim, which could be really significant.

 

Leah Litman: It could be. Now, the reason that didn’t work here and didn’t allow the employee to bring their representative private attorney general claim is the Supreme Court said California’s private attorney general’s act did not provide a mechanism that allows an individual to bring a representative action in court if they don’t also have the right to bring an individual claim in federal court. This is tactical but important. The court said they’re reading of the California statute is California law didn’t allow an individual employee who lacked the ability to bring an individual claim in federal court to then bring a representative claim on behalf of the state. This is a big caveat, as Justice Sotomayor pointed out in her concurrence. And it’s possible that the California legislature could amend Paga to allow individuals to bring representative claims, even if they don’t bring individual ones, or that the California Supreme Court could say, actually, our interpretation of paga is that an individual could bring a representative claim even if they can’t bring an individual one.

 

Melissa Murray: So now let’s get to the shade. And it comes from Justice Amy Coney Barrett. And I have to say. She kind of shades Justice Alito pretty regularly. Do you remember her concurrence in Fulton last term was a little shady.

 

Leah Litman: Yeah. So Justice Alito in Fulton wrote this, like, long historical analysis about how he thought Smith was wrong. And Justice Barrett said. Well, history looms large in this debate. I find the historical record more silent than supportive. And that was like her extent of her just dismissing his opinion in its entirety.

 

Melissa Murray: It was basically like, per my last email, I told you in conference that I thought this was bullshit. Bye.

 

Leah Litman: Yeah. And. And now we get to the shade in Viking River Cruises, which is Justice Barrett writes a concurrence that says, I joined part three of the court’s opinion. I would say nothing more than that. The discussion in parts two and four of the court’s opinion is unnecessary to the result, and much of it addresses disputed state law questions, as well as arguments not pressed or passed upon in this case drops a footnote. The same is true of part one. It’s just like.

 

Melissa Murray: Basically all of this is a waste of my time. Yes to Part three.

 

Leah Litman: Yeah, exactly. Exactly.

 

Melissa Murray: I mean Lady Safe Haven brings the fire some times. Like. Okay.

 

Leah Litman: So we didn’t get an opinion in this case, but we did get an order that I wanted to highlight because it will bring us back to the first theme that Melissa suggested. You know, these opinions are sounded and the order was in Andrews versus Texas. And it relates to some of our discussion on previous episodes about the court’s lack of care for explicit textual rights, like the Sixth Amendment right to counsel. So this case arises out of a death penalty case from Texas. In a prior decision from 2020, a.k.a. from a court of a different era, the U.S. Supreme Court held that Terance Anderson’s counsel at his capital sentencing provided ineffective assistance of counsel. The counsel had failed to uncover, quote, an apparent tidal wave of, quote, compelling and, quote, powerful mitigating evidence and failed to investigate and challenge the state’s theory for why Andrew should be sentenced to death. Now, the court did not decide whether Andrus had been prejudiced by his counsel’s ineffectiveness in order to establish ineffective assistance of counsel. You have to show both deficient performance and that the deficient performance prejudiced you. The Supreme Court sent the case back to the Texas courts to decide that question of prejudice. The Texas courts concluded there was no prejudice and affirmed the death sentence. And now the US Supreme Court denied review as just. Judge Sotomayor described in her dissent from the court’s decision not to review this case. Quote, The Texas court concluded that Andrews failed to establish prejudice based on a disagreement with and rejection of the determinations underlying this court’s holding that Anders Council had rendered deficient performance. As a result, the dissenting judges below explained, the Texas court’s opinion was irreconcilable with this court’s prior decision and barred by vertical stare decisis. Justice Sotomayor also pointed out that the Texas opinion affirming the death sentence referred to the Supreme Court as, quote, believing these things or the facts as, quote, according to the court or quote, certain alleged failures by counsel. It’s almost as if the U.S. Supreme Court is signaling to the lower courts like you don’t have to follow our precedents you don’t like as long as they were decided before Amy joined the court. I mean, it’s just. Yeah, real strong stare decisis is for suckers, you know, and stare decisis also for suckers in the lower federal courts and state courts, too. So there you go.

 

Melissa Murray: That’s worth mentioning, because we are recording today on Friday, and there was an opinion issued by the Iowa Supreme Court in an abortion case which basically. Like they basically overruled their own decision from just a couple of years ago on the sort of standards for abortion. And one can only look at that opinion and imagine, like they’re taking their cues from the court itself and its casual disregard for precedent. So, yeah. Yeah. Anyway, good times, good times, good times. All right, let’s do one last opinion again. They’ve been like just pushing out stuff. So like apologies if we are not getting into ZF automotive versus Luxshare.

 

Leah Litman: Truly apologies.

 

Melissa Murray: It was unanimous consensus from the court. So let’s talk about George Versus McDonough there. The court holds that a legal error. Applying a regulation that is contrary to statute is not grounds for reopening a federal agencies denial of benefits to a veteran. We previewed this case earlier. The agency, the Department of Veterans Affairs, otherwise known as the VA, denied Mr. George benefits, but they invoked a regulation to deny him those benefits. And a court subsequently found that the regulation was invalid. It was contrary to law and to statute. So basically the VA made a legal error in denying Mr. George the benefits he sought.

 

Leah Litman: Now, by statute, you can reopen a denial of benefits if there were clear and unmistakable errors. And what the Supreme Court held in George, is that a legal error? Applying a regulation that is contrary to law does not constitute a clear and unmistakable error.

 

Melissa Murray: Like what?

 

Leah Litman: Yeah. Legal errors. Not clear and unmistakable. Like illegal.

 

Leah Litman: What is law anyways?

 

Melissa Murray: Exactly what is law? Just vibes

 

Leah Litman: We’re just vibing here and vibes can’t be clear and unmistakable. So the court leaned heavily on the fact that Congress had incorporated a preexisting doctrine under which changes in law were not grounds for reopening a case. This opinion was six three. It was written by Justice Barrett and Justice Gorsuch. Justice Sotomayor and Justice Breyer were in dissent here.

 

Melissa Murray: Once again, we must ask in an existential way. Where was Justice Kagan?

 

Leah Litman: Let’s come back to this question at the end of the term.

 

Melissa Murray: Okay? Yeah.

 

Leah Litman: I think I think I think we’ve got to we’ve got to play a little where’s Elena?

 

Melissa Murray: Right. Exactly. Yeah. Okay.

 

Leah Litman: Right. As Marc Stern pointed out on Twitter, George is the fourth case this term in which Barrett has authored an opinion for the court and Gorsuch has authored the dissent. And George is the case. We were talking about when we said that one of the themes of this term is you are shit out of luck if other people screwed up like lawyerly incompetence, governmental incompetence does not give folks a pathway to relief or even reconsideration. This was the bottom line of Schenn versus Martinez Ramirez. It was the bottom line of Patel versus Garland holding that federal courts can’t review factual mistakes in denials of discretionary immigration relief and shift of course is the case is like, well yeah this data point of you two ineffective attorneys that’s your fault and there’s nothing the federal courts can do about it. I really worry. I don’t think it’s this is the intentional purpose of the court deciding these cases this way. But I do think, like if you make government ineffective, if you don’t allow government to correct its mistakes, like you are delegitimizing government, right? Like this is why people become disillusioned. Like the government even admit its errors and won’t correct its errors. You’re not even like allowing a minimal pathway to reconsideration. It’s just it’s not great.

 

[AD].

 

Melissa Murray: They really want us not to talk about Ginni Thomas and I. I’m just. I’m not here for it.

 

Leah Litman: No, I. I’m will not be distracted. Your opinion in ZF automotive is not going to do it.

 

Melissa Murray: Your dig in Arizona versus the city of San Francisco will not dissuade me. Supreme Court. I am. I do what I want and what I want to do right now is talk about court culture. So listeners grab your Ginni tonic because it’s that time in the episode. If you want to know how to make a Ginni Tonic, it is two parts gin, half a part of tonic, a side of salt bitters shaken and served over ice with a garland of a twist of Mike Pence arm.

 

Leah Litman: And a little seditious conspiracy. Right, swirl it around.

 

Melissa Murray: Always. That’s what you shake it up with. Shake it up with insurrectionist energy. Okay. That’s how you make it.

 

Leah Litman: Can I can I just say one of my students who did research for me and just graduated gave me a lovely thank you gift that included all of the makings for a. Ginni tonic, saying, I think you might need this for the end of the term. It was one of the best gifts I have ever received. Let’s start with American Constitution. Society held their annual convention.

 

Melissa Murray: First time in three years, so. They were back in person. First time in three years. I was I attended. I attended for like literally 2 hours. And it was it was it was lovely to see everyone there. One of the highlights I think, of the program was an interview between Tiffany Wright, Strict Scrutiny, super fan, super guest.

 

Leah Litman: Super guest always levels up everything.

 

Melissa Murray: Levels all the way up. She’s the Ciara of this podcast and.

 

Leah Litman: She is

 

Melissa Murray: She had the pleasure and privilege of interviewing her former boss, Justice Sotomayor. And Justice Sotomayor took Tiffany on a little walkabout of the room as she is want to do, where she laid hands on all of the attendees, maybe healed some injuries. Who knows. But she talked about her colleagues and it got a lot of press.

 

Leah Litman: And she was just a little ray of sunshine. Right? Like.

 

Melissa Murray: She was.

 

Leah Litman: Taking a page out of Kate Shaw’s book, putting her to shame.

 

Melissa Murray: She really did. She wrote she was was just she was very optimistic.

 

Leah Litman: She was like, you know, the court the court can recover the public’s confidence and saying, you know, Clarence, Justice Thomas, he really cares about the institution and the people.

 

Melissa Murray: And I think she’s really talking like he’s nice to many of the workers in the court’s ecosystem, which I do agree is a good thing to do.

 

Leah Litman: Next time someone is listing the institutionalists on the court, right? Like Justice Sotomayor’s name needs to be in.

 

Melissa Murray: Yeah.

 

Leah Litman: Because the chief justice and all of the conservatives could not ask for a fucking better emissary right now than Justice Sotomayor at the American Constitution Society telling everyone public confidence in the court can recover. Justice Thomas cares about the people of the court. I mean, come on.

 

Melissa Murray: She was like the best freaking PR person they could have had. Like, like like I didn’t buy it necessarily but its because I’m cynical and jaded, like, I am beyond hope. But I know there were students there and I think maybe they believed.

 

Leah Litman: I was going to say I’m not sure I was necessarily convinced either. But, you know, she she did bring the sunshine and the positivity and the hope, which, you know, we do need.

 

Melissa Murray: I have to say, when she talked about, you know, like, you know, Justice Thomas is a good person. He’s a good friend. Part of me was just like, oh, my God.

 

Leah Litman: Blink twice.

 

Melissa Murray: What’s what’s the safe word? But then also, just like, you know, this is like a job with eight other people that you’re going to have for the foreseeable future and like.

 

Leah Litman: Right. I mean, they don’t have the luxury of having a podcast and getting able to share their feelings and work them out without restraint every week. So.

 

Melissa Murray: At least on a faculty, you can just stop going to the faculty meetings.

 

Leah Litman: Right? At least on a faculty. Right, exactly. Hypothetically, a colleague might just stop talking to you.

 

Melissa Murray: Or be like, I don’t know her.

 

Leah Litman: Right, exactly. I don’t know her.

 

Melissa Murray: She doesn’t even go here. You know. There were some people on Twitter throwing shade at Justice Sotomayor. And I’m just like, I’m just going to give her a wide berth because, like. I don’t even know what it’s like to go to work in those conditions.

 

Leah Litman: I thought that here’s my segue. You know, she talked about what a good person Clarence Thomas was. And then the January 6th committee talked about what a topic of interest Clarence Thomas, his wife, was. So that’s my segue and I’m sticking to it.

 

Melissa Murray: I think that’s totally fair because The Washington Post reported that Ginni Thomas was communicating with former Thomas law clerk, John Eastman, about overturning the election. John Eastman, of course, is the person who wrote memos encouraging this theory whereby state legislatures could disregard the votes of state citizens and just appoint all of their electors to vote for. Trump who lost their states. Vote and steal the election.

 

Leah Litman: And it’s a theory that he actually seemed. To acknowledge, according to the committee’s testimony. Was batshit crazy.

 

Melissa Murray: I mean, you know, it seemed like the testimony was that Eastman admitted, you know, a suit based on this theory would lose, but only because the the the law in question is unconstitutional.

 

Leah Litman: Right. Although he did acknowledge maybe it would lose seven two. I wonder who those two faithful.

 

Melissa Murray: Could be anybody, Leah.

 

Leah Litman: Could be anybody. Yeah, I think I think Steve Breyer’s vote was in play.

 

Melissa Murray: So much came out. So one Eastman was suggesting that he kind of knew where the votes might come from for this theory on the court. How would he know?

 

Leah Litman: Well, yes. So so The New York Times following up on that bombshell Washington Post report that Ginni Thomas was in communication with John Eastman. New York Times reported that Eastman sent the following email, quote, So the odds of the lawsuit, that is, are not based on the legal merits, but an assessment of the justices spines. And I understand that there is a heated fight underway for those willing to do their duty. We should help them by giving them a Wisconsin cert petition to add into the mix. Dun dun dun dun.

 

Melissa Murray: So, I mean, okay. Per Justice Sotomayor, we can restore faith in the justice system where. She’s trying so hard. Okay. So a couple of things just. To note here. Right. So when Ginni Thomas is in communication with him.

 

Leah Litman: Yup,.

 

Melissa Murray: Not really surprising. He’s part of their milieu. You like remember we talked about the listserv, the Thomas listserv. He’s ostensibly on that. I imagine that they are in communication. You know, there was a lawsuit involving whether certain e-mails could be disclosed and Clarence Thomas was the only dissenter in that case. And I kind of wonder why now that all this stuff is coming out.

 

Leah Litman: I mean, the specter is just so reeking of impropriety. And.

 

Melissa Murray: So that is the point, Leah. Yes. It actually isn’t like I don’t actually know if there’s any impropriety, and I’m not going to say that there is. But legal ethics suggest that it doesn’t matter. It’s the appearance. Yes,.

 

Leah Litman: It’s the stench. It’s the stench.

 

Melissa Murray: Can this institution survive the stench?

 

Leah Litman: That was the question Justice Sotomayor asked?

 

Melissa Murray: But she says, yes, like she’s like you got to put a mask on. But. Yes.

 

Leah Litman: And and I did want to know, you know, one specific thing about this Eastman e-mail referring to the heated fight underway. I don’t know that this is definitive proof that like someone is telling him, internal deliberations about the court. As people pointed out on Twitter, this email was sent after the Supreme Court had denied the petitions for surgery, asking the court to intervene in the electoral count before the vote was certified. And you have to take this with a grain. This is, of course, all part of like a grift. But again, like that being said, the appearance of impropriety its just through the roof. It’s all over. And like, even if this this is said in order to, like, get money, he’s he’s conveying I have an ear, an insight, an inside person on the court. I know what’s going on there.

 

Melissa Murray: So let me connect some disparate threads. Right. So we have John Eastman purporting to have an end at the court, like someone who to whom he can feed information and who in turn is perhaps feeding him information.

 

Leah Litman: A sober or not, an apparently inebriated John Eastman.

 

Melissa Murray: Right. Yeah. And then Ginni Thomas is exchanging text messages with him, query whether she is the person with whom this flow of information is coming. Then the leak of the Dobbs draft opinion.

 

Leah Litman: Yes.

 

Melissa Murray: I mean, are people putting this together or is it just us cooking up a little conspiracy? Because I think that, like I mean, loose lips sink ships.

 

Leah Litman: Yes. Right. Snitches get stitches.

 

Melissa Murray: Obviously, they don’t.

 

Leah Litman: Right. Exactly. Exactly. Not.

 

Melissa Murray: Snitches should get subpoena, but.

 

Leah Litman: Right.

 

Melissa Murray:  it’s just like it feels like the court is kind of a sieve, but maybe it’s just her.

 

Leah Litman: I mean, we don’t know, right?

 

Melissa Murray: I don’t know.

 

Leah Litman: And the fact that we don’t know and again, the fact that the appearance of this impropriety raises these questions that then can’t be answered because there isn’t an inspector general for the court. There at least are not yet subpoenas to Ginni Thomas. It’s creating this real problem that is delegitimizing the court and making it very difficult to have anyone view that institution with a sense of, oh yeah, like things are okay, there.

 

Melissa Murray: This is wackadoo. So the hearings in the January six committee this week I think were just wild bananas. If you haven’t been watching them, you really should. I mean, it was just a lot of stuff. So, you know, the second day of hearings is basically about the way in which the Trump administration’s last campaign cultivated this big lie and essentially used it as a grift.

 

Leah Litman: Yes.

 

Melissa Murray: When someone loses an election, typically the money dries up. No one gives money to people who have lost their campaign. But they fed this lie that the election had been stolen and they requested all of these donations and they got them. And then apparently they started parceling them out to these others, like like the Trump Hotels got some.

 

Leah Litman: What’s so astonishing is like that entire development, right. Underscores the need for the statute that the court invalidated this term in FEC versus Cruz, which is candidates after an election who continue to collect money, are at greater risk of putting that money directly into their pockets and. There is a greater risk of corruption.

 

Melissa Murray: That’s one sort of real court adjacent issue. Not court adjacent, but perhaps DOJ adjacent. It’s like, doesn’t that sound like wire fraud? Like, I’m no prosecutor, but. I mean, I can read a statute. Right?

 

Leah Litman: So it does. And yet we have to come back to the Supreme Court again, because guess who’s made it so hard, if not impossible, to prosecute instances of political corruption under general fraud statutes? The Supreme Court.

 

Melissa Murray: Oh, Bridegate.

 

Leah Litman: Exactly. Like. Exactly like they narrow fraud statutes in the Bridgegate case, Kelly. They narrow honest services under McDonald. And, you know, the court has been steadily chipping away at prosecutorial tools to prosecute political corruption. And so, yes, this does sound like wire fraud, but to a Supreme Court that thinks this is just politics and like this is a feature, not a bug. You know, I don’t know.

 

Melissa Murray: Look how quickly we just like it just escalated. Like first it was just like Chris Christie shutting down the GW Bridge because he was pissed. And now it’s like a full on coop, like, right. And grifting. Yeah. Anyway. So that was the second day and to me that was just wild because that just looked like fraud. Anyway, the third day focused on Vice President Mike Pence and the effort to get him to throw out the slate of electors and to insert the alternative of Trump electors. And Mike Pence himself did not appear before the committee. Really interesting, but two or three surrogates either appeared in person or by deposition in testimony that had been videotaped. Among those appearing was former fourth Circuit judge and one time Supreme Court hopeful J. Michael Luttig, who. Basically said that he intervened when he was asked to give advice to the vice president, was like, this is like seriously messed up, probably criminal, definitely unconstitutional. Please abort whatever you think you’re doing. And and he’s a dyed in the wool conservative. This is liberal switch.

 

Leah Litman: He was shortlisted for the seats that went to Chief Justice Roberts and Justice Alito.

 

Melissa Murray: Yeah. So I thought that was really, really interesting. I mean, FYI this whole like, Mike Pence is a hero narrative is wild.

 

Leah Litman: Spare me.

 

Melissa Murray: I mean, I’m just like, dude never disputed the big lie. And just like literally on the last day decided, oh, wait, didn’t I take an oath to defend the Constitution? Let me do that. He gets nothing from me for that. But I do appreciate these people stepping in to say like, this was crazy. And we told them so. Yeah. So do you think the DOJ is going to do anything?

 

Leah Litman: If I had to guess, there will not be like high level members of the Trump campaign or Trump Circle who would be prosecuted under a theory of like wire fraud. For anything related to this, I guess that would be my intuition.

 

Melissa Murray: Okay.

 

Leah Litman: Sorry.

 

Melissa Murray: No,.

 

Leah Litman: I’m. No, I’m no Sonia Sotomayor. Right.

 

Melissa Murray: I know you’re not. You’re not.

 

Leah Litman: I’m not Sonia Sunshine’s Sotomayor.

 

Melissa Murray: You’re not Sonia Sunshine Sotomayor. That’s it SS stands for sunshine.

 

Leah Litman: Yeah, exactly.

 

Melissa Murray: Is that all the time we have left to end on that depressing note. Terrific. Okay. Thanks for listening. I hope you enjoyed this predicular cocktail hour. Before we let you go. We want to alert you to some exciting news. Crooked has a new podcast, Mother Country Radicals. And it’s out now in this tenet.

 

Leah Litman: Woooo, congratulations.

 

Melissa Murray: This is a ten episode series where host Zayd Ayers Dohrn takes us back to the 1970s when his parents and their young friends in the Weather Underground organization declared war on the United States government. The story explores the progressive reasons and deadly consequences of this monumental time in history, with both archival footage and firsthand interviews of nearly every living member of the Weather Underground and Black Liberation Army. Leah, I’m loving it so far. Do you like it?

 

Leah Litman: I’ve really been enjoying it. I have been listening to it on my walks with Stevie.

 

Melissa Murray: How does Stevie like it?

 

Leah Litman: Stevie’s a fan.

 

Melissa Murray: Two paws up. Way up, yeah.

 

Leah Litman: Four paws up. Honestly, she rolls over on the ground, sticks them all up.

 

Melissa Murray: So and so are the critics rolling over and sticking their hands out because they love it, too. The podcast actually just won in the best audio storytelling category at the Tribeca Film Festival, and you can listen to the first four episodes of Mother Country Radicals. Right now, wherever you get your podcasts, you can cue it up right after Strict Scrutiny. It’s a great teaser for your refreshing Ginni Tonic, the drink of the summer.

 

Leah Litman: Cheers.

 

Melissa Murray: Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray, and Kate Shaw. It’s produced and edited by Melody Rowell with audio engineering by Kyle Seglin Music by Eddie Cooper, production support from Michael Martinez, Sandy Girard and Ari Schwartz. Digital support from Amelia Montooth and Summer Intern support from Anoushka Chander.