SCOTUS’s Final Sitting of the Term Is A Doozy | Crooked Media
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April 15, 2024
Strict Scrutiny
SCOTUS’s Final Sitting of the Term Is A Doozy

In This Episode

In the next two weeks, SCOTUS will hear arguments in cases on political corruption, criminalizing houselessness, whether a state abortion ban can override a federal policy permitting abortion in emergency medical care, the statute under which most January 6th defendants were convicted– and if that weren’t enough, Donald Trump’s request for immunity in the January 6th case against him. After previewing all these cases, Kate, Leah, and Melissa also provide updates on the total abortion ban and ballot initiative happening in Arizona, and the latest shenanigans out of the Fifth Circuit.





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.


Melissa Murray Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it, we’re your hosts, I’m Melissa Murray.


Kate Shaw I’m Kate Shaw.


Leah Litman And I’m Leah Litman, and this is going to be a pretty dense, content heavy episode because of what is happening at the court, but also because of the court and what it is doing. So first, we’re going to cover the previews of some of the cases that the court will hear the sitting, their final sitting, and it is a huge sitting. But we also have an important court culture segment that will touch on some of the things the court has unleashed on the country, namely the goings on in the district courts of Texas and the Fifth Circuit, and some important reproductive justice developments out of Arizona. Specifically, how the US Supreme Court’s decision in Dobbs paved the way for Arizona to revive a law from the 1860s that is a total abortion ban.


Kate Shaw So that’s a lot to cover. Let’s dive right into the previews to get things started. As Lisa mentioned, this is the final sitting of the term. That is the last group of oral arguments that the court will hear this term, and it is a huge one.


Melissa Murray But wait, do you know what it means that this is the last sitting of the term?


Leah Litman No.


Kate Shaw What does it mean, Melissa?


Melissa Murray It’s almost time to make some bad decisions.


Melissa Murray But they already got started. They ‘ve been releasing bad decisions.


Melissa Murray No but really bad decisions. Like that’s the Jaegermeister of decisions. Those are coming.


Kate Shaw That’s true. It is now.


Melissa Murray Get ready.


Kate Shaw Really becoming that time. But while they are in the midst of starting to issue their bad decisions or their next round of bad decisions, they are also going to be hearing arguments in a number of really big cases. So this sitting for two weeks is jam packed with enormous cases, both the first and the second week. And so in order just to give you a general sense of what is on deck, we’re going to talk about two big cases. The court will hear during the first week of the two week sitting, and then we’ll mention several other big cases the court will hear in the second week. That means we won’t be as detailed here as we will be in the recap episodes when we get to focus on fewer cases. But go deeper. But we think that just giving you a broad sort of sweep of the cases the court will hear in this two week sitting is important because it drives home the importance of the court, right? Both how powerful it has become and the stakes of controlling the court, which really turns on the outcome of a November election. So we’re going to start with a couple of cases being argued in the first week of the sitting. And the first case we’re going to talk about is Fischer versus United States, a case that has implications for some of the federal prosecutions arising out of January 6th.


Melissa Murray The issue in Fischer is whether the federal law, under which most of the January 6th defendants were convicted, that is, section 1512 C-2, prohibits interference with congressional processes that don’t involve investigations or the production of evidence. The statute 1512 C-2 is a part of the Sarbanes-Oxley act, which was itself a response to the 2001 Enron scandal and the widespread fraud that had occurred at Enron and at other companies regarding accounting practices and public reporting of corporate information. Here’s the text of the statutory provision at issue here. Just so you have a sense of how these issues arise under 18 U.S.C. section 1512 C whoever corruptly one alters, destroys, mutilates, or conceals a record, document, or other object with the intent to impair the object’s integrity or availability for use in an official proceeding, or to otherwise obstructs, influences, or impedes any official proceeding or attempts to do so, is guilty of a crime.


Kate Shaw So the question in this case is whether C-1’s prohibition, which pertains to the destruction of objects and records related to official proceedings, is also a part of C-2. Now, the text of C-2 does not explicitly limit its application to that context. It just says broadly obstructing or interfering with an official proceeding. But the question is whether C-1 limits it anyway, and the stakes for the January 6th prosecutions are very high. Many January 6th defendants have been charged and convicted with violations of C-2 on the theory that they obstructed unofficial congressional proceeding, a session involving the certification of votes for president. So an interpretation of C-2 that narrows its reach could potentially wipe away at least some of those convictions.


Leah Litman And to be clear, the defendants have argued that the certification of the presidential votes is not the kind of congressional proceeding that the statute prohibits interference with. The defendants say the law prohibits interference with proceedings involving investigations or the collections of evidence. And if they’re right, that would mean the statute would not apply to people whose presence at the Capitol and whose actions at the Capitol forced Congress to recess and stop the proceeding to certify the votes. So that sounds like a big issue, and it is when it’s framed that way.


Melissa Murray But what really makes this a big issue, indeed a huge issue. It’s not simply Mr. Fisher, the defendant in this case, or even the other individuals who have been convicted on similar theories. Rather, what makes this a really big issue is the fact that former President Trump, who is the defendant in an entirely different January 6th case, the one. Brought by Jack Smith, has been charged under weight for it. Section 18 U.S.C. section 1512. See so in the federal January 6th election interference indictment. Jack Smith charged Donald Trump under the same provision. He was charged with both violating section 1512 C and a conspiracy to violate 1512 C. And this is all to say that this case then has implications not only for Fisher and other rank and file. January 6th rioters who have been charged under the statute, but that it also has enormous implications for the federal case against Donald Trump because if Defendant Fisher prevails here, Defendant Trump will see two of the four counts against him in the federal January 6th indictment evaporate.


Kate Shaw And one additional piece of background is that the court has already limited the reach of a related provision of the same statute. So 18 U.S.C. section 1519, rather than 1512, in a case called Yates versus United States, which involve the use of the statute. Again, a different provision of the statute to charge a fisherman with destroying evidence of his overfishing, that is, the fish, and in that case the court found that the statute could not be used in that way. So that case does suggest that there is at least some appetite on this court for limiting the reach of various provisions of Sarbanes-Oxley.


Leah Litman But we should say it’s not entirely clear whether the court took this particular case, Fisher, to say something that would prevent prosecutions, using this law in all January, six cases, because it’s not obvious that what the court will say here as it relates to Defendant Fisher will apply to other rank and file, you know, attendees at the Capitol. And that’s because the defendant in this case, Mr. Fisher, entered the Capitol later on January 6th after Congress had recessed to avoid the mob. So it’s at least possible that the court could say something that’s unique to those kinds of cases, especially because the court chose not to grant review in cases where the defendants had arrived at the Capitol before Congress recessed. So we’ll see. But, you know, there are some versions of an opinion in this case for the defendant that, you know, might not prevent prosecutors from relying on this law to bring criminal cases against other people involved in January 6th. So a lot turns on the arguments that the court is interested in what they say.


Melissa Murray And how they write it.


Kate Shaw Right. Definitely. But also the other people who might not be affected, even if this defendant prevails, presumably, is Donald Trump, because the conduct happened both before January 6th and early in the day, not after the breaching of the Capitol, as was the case with Mr. Fisher. So it is potentially an outcome where Fisher wins. But none of that actually even affects the ultimate outcome. With respect to these two charges against Trump.


Melissa Murray I think it could be the case, though, that if Fisher wins, even if it’s on the sort of narrower theory that Leia’s articulated, it provides a really important defense for Donald Trump to raise. If, in fact, the January 6th election interference case goes forward and that will slow down the case once again. So again, lots of ifs here. If the court makes a ruling on immunity, which we’re going to get to if the court decides on a narrow basis for Fisher, lots of different things. But these two cases are inextricably intertwined because of the nature of the statute and the fact that both are charged under it.


Kate Shaw Okay. So the next case we want to talk about also slated for argument that first week is Snyder versus United States, an important political corruption case. And if past is Prolog, there is real reason to worry that we are headed for another decision that further whittles away statutes that attempt to criminalize different forms of political corruption. So this case involves an important federal statute, 18 U.S.C. section 666, which makes it a crime for state or local or tribal officials that receive federal funds to solicit or demand or accept things of value as influence or reward for any business of the federally funded entity. And the question in this case is whether that includes what are known as gratuities. So payments made to state or local officials for actions the officials have already taken or for actions they have committed to take. But without a super explicit quid pro quo agreement that is, without an agreement along the lines of I’m paying you because you did this thing for me, or because you have agreed that you are going to do this thing for me.


Melissa Murray As we’ve discussed many times, the court has invalidated a host of campaign finance regulations, beginning with Citizens United, where the court struck down the federal limits on independent political spending by corporations. Another case that we’ve covered on the show was FEC versus Cruz, where the court struck down a federal limit on candidates ability to pay themselves back with post election contributions. So these cases have struck down campaign finance regulations based on the court’s very narrow definition of corruption, where the court has essentially said that the government can only root out quid pro quo corruption, i.e. agreements to trade political favors for money, the court has rejected the idea that the government can regulate massive political spending on the ground, that it can facilitate corruption in general or be corrupt in other ways.


Leah Litman And the court has also whittled down anti-corruption rules in statutory interpretation cases where rather than striking down statutes, i.e. invalidating than the court reads criminal prohibitions on corruption to be very narrow and not to prohibit corruption other than quid. Pro quo corruption. So we covered this early on in the show’s history with the court’s Bridgegate decision in Kelly versus the United States, where the court held that shutting down some lanes on the George Washington Bridge as political retribution did not constitute unlawful corruption. Last term, the court rejected two additional theories the government had used to prosecute cases of political corruption in Ciminelli and Percoco. We’ll talk more about at least Ciminelli in a second, because it’s potentially relevant here. And now. There is Snyder, which is another case asking the court to narrowly interpret anti-corruption statutes in order to prohibit only the kind of corruption that this court thinks is corruption.


Melissa Murray There’s also a way, I think, you could read the Fisher case in line with this as well, not necessarily about corruption, but just sort of misconduct on the part of the government, like just such a narrow understanding of what it means to engage in misconduct in an official proceeding, like to limit it only to these investigations involving the production of evidence, as opposed to some of these other contexts that the U.S. Attorney’s Office has tried to apply it to. So, again, maybe just generally, as Kate has written about in her Partizan creep article, just an appetite for limiting all the places where you might actually hold political officials to account.


Kate Shaw I think the two are definitely related and in some ways, like there are you know, these are not government actors necessarily the individuals who stormed the Capitol. But it’s still, you know, what you might think of as not like, you know, they’re not drug crimes. I mean, I don’t think white collar is precisely the right description, but there is a category of offenses in which I think you could slot this. I mean, certainly what these some of these defendants are arguing is this was like, you know, legitimate political objections that they were raising. So, broadly speaking, I think the two cases are absolutely of a piece.


Leah Litman Okay. So to this case, maybe we’ll just grab the facts, which will tie up the issue in the case. So the case arises out of a deal where the mayor of the town of Portage awarded several trucking contracts to a company, Great Lakes, Peterbilt and the government, that is the federal government says that as part of the contract process, the mayor picked his friend to run the contract process, and the mayor’s friend had no experience with trucks or contract bidding. And the government says the mayor and his friend rigged the bidding process in order to favor Peterbilt.


Kate Shaw And this is where the court’s decision in Ciminelli comes in. So under the court’s decision in that case, it is not clear that this scheme would even be illegal, since in Ciminelli, the court said that depriving the government of economic information regarding a bidding process and rigging the bidding process in certain ways does not violate a federal anti-corruption law, although it’s actually not the same federal statute at issue in this case. But back to the facts of this case. So the trucking company Peterbilt later hired the mayor for what the trucking company says were consulting services.


Melissa Murray Hmmmm.


Kate Shaw But the federal right, the federal consulting, a, you know, easy label, two affix. And of course, the federal government says this quote unquote consulting services gig was basically a thank you payment for the trucking contracts, like a gratuity or a tip. So the company and the mayor did not produce any documentation that really seemed to suggest that there were genuine consulting services offered by the mayor to the company.


Leah Litman I just realize that Harlan Crow has just been hiring Clarence Thomas for consulting services.


Melissa Murray Consulting gigs.


Leah Litman And he just pays him with PJ trips all over the country.


Melissa Murray Gratuities. Tips


Leah Litman Exactly. The tipping theory of government and politics, right? Is it their fault they’re doing such a good job that people just want to offer them a tip or a gratuity? I can’t help that I’m so popular.


Melissa Murray I love public service as consulting gig like.


Leah Litman Right? Exactly. Yes.


Melissa Murray I love that. All right, so back to this case. The federal government here argues that the hiring of the mayor violated federal law. Snyder says that it didn’t violate federal law because he didn’t award the contracts based on an agreement with the company, in which the company agreed to later pay him for awarding them the contract. So it’s all fine. You can have friends who own a trucking business, duh.


Leah Litman And who tip you for your  consulting services.


Melissa Murray I mean it is totally, totally fine. So all to say, just to make this clear, Snyder’s argument is that even if the company paid him for the express purpose of thanking him for awarding the contracts, or even if he awarded the contract based on the hope that the company would later pay him, or a reasonable belief that he thought he could be paid, none of this would be illegal. And in my view, this all really beggars belief. This is so obviously not cool and not okay. Right?


Leah Litman And yet I feel like every year, multiple times a year, we have one of these political corruption cases where it’s like, sure, somebody discovered like five private jets in Sam Alito and Clarence Thomas’s attic, but I’m sure that they will approach these cases in very neutral, principled ways, and we can trust them to just be on the level. So it’s all good.


Kate Shaw And the other thing is, I just I have to be this from most of these have been unanimous like it is. The Democratic appointees are totally on board with this whittling away at the. Edifice of federal law that has criminalized corruption. And there’s only so many statutes left that they haven’t sort of narrowed beyond all conceivable recognition. And 666 is one of them and a really important one. And if the court adopts this incredibly narrow theory, which I think given the precedent, there’s a good chance they will like it. That’s going to further reduce the power of federal prosecutors to reach this kind of corruption. And maybe that’s the point.




Leah Litman This is just the first week of the sitting. So during the second week, the court is also hearing a bunch of big cases, so many that we actually cannot preview all of them. Even if Kate and I talked at our, like, maximum speeds. But we did want to highlight a few of the cases.


Melissa Murray One of these cases is a major case on Houselessness. City of Grants Pass versus Johnson. This is the first major case on Houselessness that the court has heard since the 1980s. And the general issue in the case is what constitutional limits are there on the government’s authority to criminalize being unhoused?


Kate Shaw This particular case arises out of Oregon, which is in the Ninth Circuit. So in 2018, the Ninth Circuit decided another case in which it held that it was unconstitutional to punish people who are, quote unquote, involuntarily homeless for sleeping outside if there are not enough shelter beds. So that decision, Martin versus Boise, said it would violate the cruel and unusual punishment clause of the Eighth Amendment of the federal Constitution to punish people for being unhoused under these circumstances. So this issue of being unhoused is very significant. The AP has reported that the United States experienced a 12% increase in Houselessness last year, such that the number of people who are unhoused is now at its highest reported level. That is over 650,000. This has, you know, a huge number of contributing causes, some of which include the end of Covid assistance policies and rent increases, and almost 250,000 of the people who are unhoused sleep outside.


Leah Litman Now, Grants Pass, where this case arose from as a small city in Oregon, where about half of the city’s residents struggle to pay rent. And like many cities in the Pacific Northwest and California, it has seen a huge rise in unhoused encampments in public parks and under overpasses. And Grants Pass passed a law that criminalizes sleeping outside on public sidewalks, streets or alleys, ways it worded the law such that it prohibits, quote, camping on sidewalks, streets, parks. And it defines a campsite to mean a place with bedding or a sleeping bag. We’ll talk about that in a little bit. But the city argues that these anti-camping laws are generally applicable. That is, they’re not actually about the unhoused and don’t target the unhoused. They say they prohibit everyone from camping on park benches. This is actually, you know, the theory for why these laws don’t implicate the Eighth Amendment. But the Ninth Circuit rejected that, sort through it and said, look, these laws are prohibiting activity that is closely correlated with being unhoused. You know, you can’t just describe it as camping. So indeed, you know, that seems to have been part of the point of these laws to target the unhoused. So one council member, you know, when these laws were under consideration, said something about how the point of the laws was to make it uncomfortable for them to live in the city and ensure that, quote, they will move on. So it seems like it is, you know, targeted at a particular group, not just everybody who might want to camp.


Kate Shaw This is not about like families recreationally camping on sidewalks. That’s obviously not the target of this law. So there’s no generally accessible homeless shelter in Grants Pass. There is a privately owned shelter that is available to people without houses, but it requires church attendance as a condition to shelter. And it also requires work that some residents are not able to do. The search grant in this case was obviously very concerning, and that it suggests that the justices might be interested in reversing the Ninth Circuit and allowing jurisdictions to punish sleeping while houseless.


Melissa Murray The Department of Justice, perhaps seeing the writing on the wall here, offered what I think we might view as a narrower possible ground for sending this case or issue back to the Ninth Circuit without undoing all constitutional limitations on criminalizing homelessness and other statuses. The whole question in this case, kind of turns on the status quo distinction that we’ve seen in a lot of other cases in the past. Certainly the status cases like Robinson, but also in cases like that, deal with questions like whether the state can criminalize sodomy. One of the arguments that traditionally undergirded the criminalization of sodomy and lawsuits that upheld sodomy regulations was that, you know, people would say this is not about targeting a particular group. It’s simply about targeting certain conduct that anyone could engage in. But again, I think the point of a case like Lawrence versus Texas was that there is some conduct that is so closely correlated with a particular group that a law that targets the conduct is also about targeting the group itself. So the status conduct distinction is not as clear. And, you know, I think that’s a big part of what’s going on here. Like it’s Leah said, it’s not about not camping. It’s about being unhoused. In any event, the Department of Justice says that the Ninth Circuit was correct and finding that ordinances punishing people for sleeping outside where there isn’t enough shelter space are unconstitutional. But DOJ says the Ninth Circuit aired in writing the injunctions and decisions to apply to all. Unhoused people. And here I’m quoting, quote, without requiring a more particularized inquiry into the circumstances of the individuals to whom these ordinances may be applied, i.e., without requiring some showing of involuntary houselessness. So that’s the terms that are used in the DOJ’s brief here. And I think, again, a narrower place for this court to rest to avoid undoing a lot of this other jurisprudence.


Leah Litman Yeah. And that’s how I took the DOJ brief. Right. Seeing the writing on the wall and being concerned, given that the Supreme Court had taken the case, trying to tee up a narrow workaround for them to possibly reverse or send the case back. But of course, the whole idea of being, you know, voluntarily unhoused is a little bit problematic. You know, the notion that these injunctions against these laws apply to a bunch of people who are voluntarily unhoused is also problematic, because if you believe being unhoused is voluntary, it opens a door to criminalization and it reduces momentum to build housing. And, you know, just to kind of take an example of this, this gets back at, you know, what I was kind of needling this at before for being about camping. You know, Grants Pass had argued to the Ninth Circuit that this case involved voluntary houselessness, because the ordinance criminalizes sleeping with bedding or pillows, you know, i.e. camping rather than just sleeping without shelter. But of course, right, having bedding or pillows is like a natural human instinct as part of sleeping. So it’s just. And I worry that although I understand completely the DOJ strategy of trying to give them a route to reversing or sending the case back without undoing the entire distinction between status and conduct in this particular context and potentially others. You know, it’s it’s a dangerous road.


Melissa Murray So to close this case out, I just want to recommend a wonderful podcast called A Place to Sleep, which did a more journalistic account of the background to this case and the issues that it involves. It’s definitely worth checking out. You know, just again, a really informative episode that sort of tees up all of the issues here. And F.Y.I. Grants pass is just one of the cases the court is hearing during the second week of the April sitting. Yes, there is more, more, more, more.


Kate Shaw So much more.


Leah Litman And one of those additional cases during the second week is the  EMTALA case, which I think we have alluded to multiple times, but.


Melissa Murray So have they.


Leah Litman Here. I know, so this is the case about whether hospitals are allowed to provide abortions that doctors believe are necessary to prevent suffering, pain, potentially loss of major organs. And they, they believe, are necessary to stabilize patients. The case is called Moyleversus United States. And it arises from a challenge that the United States filed against Idaho’s restrictive abortion ban. The United States argued that the Idaho abortion ban was preempted, i.e., to the extent the Idaho law prohibited hospitals from being able to provide abortions that hospital doctors believed were necessary for stabilizing care, the Idaho law could not be enforced because the Idaho law conflicted with a federal law known as the Emergency Medical Treatment and Active Labor Act, I am told so it is a well established principle, although Texas is trying to unsettle it, that federal law is supreme, and that federal law wins out over any state law that conflicts with the federal law or undermines it. So here the basic idea is, EMTALA says hospitals have to be able to provide these abortions that they believe are necessary for stabilizing care. State law wants to prohibit that. That is a conflict. And so the federal law should win.


Kate Shaw This case has largely flown under the radar while the public has focused on the medication abortion case. Although Melissa and I did try to sound the alarm about both in an essay in the Times a few weeks ago. And interestingly, the justices, I think, gave a boost to the public profile of EMTALA, as Melissa alluded to a couple of minutes ago, which is that they brought it up in the argument in the medication abortion case. But here. So Idaho, with a host of conservative organizations as amici including 121 Republican members of Congress, is arguing that the state can and should prohibit hospitals from providing abortions at the hospitals believe are necessary to prevent things like a lifetime of pain, maybe loss of a major bodily organ, and other extreme health risks. They are making the case affirmatively for permitting more women’s suffering. And as Leah noted in the medication abortion case recap, this case is not about whether particular doctors at hospitals can be required to perform abortions. It is about whether hospitals can be permitted to perform abortions, where the doctors believe those abortions are necessary to prevent serious health risks, injuries and pain when the state wants to prohibit them from doing so. So this is about whether federal law can protect doctors in their ability to exercise their own medical judgment in favor of providing abortion care, but in no way about whether doctors can be required or compelled to provide abortion care. And there are, as we will. Out in a second and has came up in the medication abortion argument. Conscience protections under federal law for individual doctors who may not want to perform particular procedures. Those protections are not part of this case. They are separate and apart from Atallah. That’s not what this case is about. But that is an important background fact as we discussed this case. This case is also not about elective abortions, right, where for any number of reasons, people decide to terminate a pregnancy. This is about a situation where someone who is pregnant shows up at a hospital presenting with severe complications and risks, and a physician believes that that patient is at serious risk of bodily injury. And more so, the stakes are things like how much pain and long term injury states can force women to endure by denying them needed abortions.


Leah Litman And again, I think this just underscores how far the Overton window has quickly shifted after Dobbs. We’re not talking. I don’t think about a huge number of cases. We are talking about, you know, the smaller number of cases where, again, people show up at hospitals and are at severe risk of severe complications and life threatening, health altering consequences and complications, and whether hospitals can provide them with an abortion. And that is the issue that Idaho has decided to take all the way up to the Supreme Court and say, no, we really want to be able to prohibit abortions in those cases, too. So some brief procedural history, which to me underscores how apparently desperate the justices are as well, to enable women suffering. So, as we said, the Biden administration filed this case arguing that the Idaho law could not be enforced under EMTALA, and a district court held that the Idaho law was indeed preempted and could not be enforced in narrow circumstances, where doctors conclude that the pregnancy termination is necessary to prevent injuries other than death. Idaho appealed a Court of Appeals panel on the Ninth Circuit of all judges appointed by Donald Trump stay of the injunction, argue they put this Idaho law back into effect. But then the full Ninth Circuit granted rehearing en banc. That is, the other act of judges on the Ninth Circuit weighed in, vacated the stay, and restored the preliminary injunction such that this Idaho law could not be enforced. But then the Supreme Court paused that and set the case for argument.


Melissa Murray So this issues at Scotus at the stay pending appeal stage. So the question here is whether to stay the district court’s injunction. And there have also been a series of intervening developments since the district court weighed in. So one Idaho amended the law, and the Idaho Supreme Court has interpreted the law. No other court has weighed in on how this might effect the challenge in this case. And there’s a brief from Kent Greenfield, Adam Steinman, Julie Sook and Joseph Tie that flags these procedural developments and urges the Supreme Court to dig this case. So dismisses improvidently granted.


Kate Shaw The idea that now would be a good time for Scotus to use this case at this stage to make a broad pronouncement that, in fact, states can demand more women’s suffering and pain is absurd. But the fact that they took the case at all, I think, reveals the justices eagerness to potentially greenlight this stuff. And I’ll say on that, on the procedural brief, there was a similar brief with a some, if not all the same signatories basically making a similar argument in Dobbs, which was basically that Mississippi totally changed its argument between the search stage and the marriage stage. And for that reason, it’s a different kind of procedural development. But for that reason, the court should take a dig off ramp. And obviously those pleas fell on deaf ears then, and I would expect the same result here. But I do think it’s important to highlight the procedural impropriety of the court granting review in a case like this one.


Melissa Murray It’s so clear that they want to take it. I mean, just like again remember how often EMTALA surfaced in the medication abortion oral argument? I mean, it’s just very clear that so many of these justices are ready to shut it all down.


Leah Litman What’s odd to me is that it’s hard to tell whether they just live in this alternative ecosystem where EMTALA means and structures the world in a way that it actually doesn’t because like, they think EMTALA means something that it just doesn’t do.


Melissa Murray Let’s just hear from them.


Leah Litman And right here.


Melissa Murray Let’s roll the tape.


Clip Counsel, can I ask you a question about the conscience injury? So that’s one of the roadblocks you identify in the speculative chain. Because you say a doctor could invoke federal conscience protections to refuse to complete an abortion. That was when the embryo or fetus was still alive. So I just want to be clear. The federal government’s position is that their doctor would have conscience objections. I’m thinking about the litigation and the Fifth Circuit criticize the government’s inconsistent positions. But it is your position that such doctors would have recourse to the conscience protections of federal law.


Kate Shaw The justices have been doing some thinking about them. Tala. I think that is clear. And there are also a lot of amicus briefs in this case. We already mentioned the procedural one, but we want to highlight a couple of others. One is a brief filed by several OB GYNs, including Doctor Caitlin Bernard. Doctor. Bernard is the Indiana doctor who provided an abortion to a minor who had to flee Ohio to Indiana after she was raped in order to get an abortion there, and Doctor Bernard was subsequently disciplined for speaking out about the case. She obviously protected her client’s confidentiality, but she did speak in general terms about the case, which is how we even know about it. And her story and her voice are featured prominently in another wonderful podcast called The Nocturnal Post-roe America. And her story is there, and I highly recommend people checking out their podcast if they haven’t. But back to this case. Doctor Bernard’s brief argues that state laws that preclude doctors from performing abortions that doctors believe are necessary to prevent suffering and pain and health risks violate the doctor’s conscientious and religious beliefs, in part because harming patients, which these laws force doctors to do, completely inverts the Hippocratic Oath.


Melissa Murray The Indiana Court of Appeals recently ruled for the religious liberty challenge to a state’s abortion ban. In that case, the group Hoosier Jews for choice and several individual women argued that the state’s abortion ban violated their right to religious freedom under the state’s religious liberty protections and wait for it, the court agreed. We predicted this outcome after the oral argument in the case, but I just bring it up here because I think it underscores that the concerns that Doctor Bernard and other doctors are raising in the case are, in fact, very real. These abortion bans require people to violate their conscience, is their professional training and sometimes their religious beliefs by preventing them from providing an abortion that they believe is necessary to help a patient or that the patient has actually chosen.


Leah Litman So another brief is from Amanda Zurawski and other women who have been denied abortions. Amanda, of course, is one of the plaintiffs in the Texas case who testified to Congress about how, as a result of Texass restrictive abortion laws, she was denied a medically necessary abortion and went into septic shock after she was denied abortion care. Reading the brief underscored something we talked about the summer after Dobbs, when we did our first episode on the unfolding terrain since the decision, namely, that one additional cruelty of these restrictive abortion laws, and Dobbs itself, is to require women who have been forced through medical emergencies and forced to endure all kinds of pain, suffering and complications to force them to remind everyone about that in pleading for mercy, respect, and trying to avoid, you know, that happening to other people. And that brings us to the very last day of the term. The court will be hearing argument in Trump versus United States. That is Trump’s request for immunity in the federal January 6th election interference case. So skimmed the briefs and Trump’s brief claims there is, quote, voluminous evidence of fraud. I will be curious if any of the justices ask about that, because to my mind, that comes pretty close to like sanction of all representations in a brief, given that there is zero basis for it.


Kate Shaw So we will see what they make of that. And just to take a step back, we also just want to take the opportunity to underscore once again the enormous importance of timing in this case, and that this case is not just about and in some ways not even primarily about the formal outcome in an opinion, the court needs to, having chosen to get involved in this case, ensure a decision by the end of May. And as a reminder, granting review in this case added three months to the timeline of the trial judge Chuck, and had originally suggested there would have to be about 80 days of trial prep before a trial. I don’t think she is in any way bound to that number, but there will need to be some time for preparation. So time is of the essence. And if the Supreme Court does not act expeditiously once again, they will be single handedly responsible for blocking a trial before the election about whether, as President Trump illegally interfered with a peaceful transition of power. That’s what the case is about.


Melissa Murray I just want to intervene here to make clear that, as it stands, even if the Supreme Court confirms that the president is not a king and therefore not immune from criminal liability, which in my view is literally the only answer that is consistent with the history and traditions of this country. Even if they get to that outcome eventually in the immunity case, the issue is basically moot at this point. They will have already effectively immunized Donald Trump from criminal prosecution simply by waiting until April 25th to hear the case, and then waiting until, whenever they deign to grace us with an opinion, to actually issue a decision. So to my mind, the question of his immunity is already decided, and the rest is just sort of academic at this point.


Leah Litman Again, I feel like there is still a chance for some trial to happen before an election, but that window is just vanishing so quickly and they have again risked it all and created this situation that is tenuous, borderline untenable. And they did it. Yeah.


Melissa Murray Well, again, Leah, I come back to the thing that you said about Fisher. Like there. I mean, they could really hobgoblin this to the max by deciding Fisher in the way that you suggested, which is a narrow decision that sort of focuses on the facts of the Fisher case. And then that raises a question of whether the decision in Fisher is applicable to the charges that have been levied against Donald Trump under 1512. See, and that could further delay this trial. I mean, so there is sort of like two opportunities for this court to just consign this case to the dustbin of history by simply making decisions that require a huge expanse of time to resolve.


Kate Shaw And I mean, that’s true here, too. And I think that Smith’s, Jack Smith, the special counsel’s brief, kind of anticipates the possibility that the justices might render decision that requires additional proceedings below and kind of offers an argument that is, you know, geared to that possibility, which is to argue that even if the court does something, basically suggesting that further briefing and decision is required below about the distinction between liability for official acts versus liability for acts that are not within the scope of official responsibilities. So Smith’s brief says that even if liability could not be premised on official acts, the case should be remanded for trial with the district court to make evidentiary and instructional rulings in accordance with this court’s decision. Petitioner could seek appellate review of those rulings if necessary following final judgment. So the point he’s making there is if the court decides there are more legal questions to be answered that should not preclude a trial. The trial can happen based on initial determinations that the trial judge makes, and if Trump wants, he can bring an additional appeal later. But at least that would let a trial move forward as soon as the case is back down from the Supreme Court. So I actually wanted to flag one other thing about this case, which is there’s an essay in slate last week that Duke law professors Darrell Miller and Sam Buell wrote, and it makes the argument that we don’t know what’s going to happen on timing, as we were just talking about the trial still could happen. But the window is narrow. But we do know that the Supreme Court is going to hear arguments in this case, and that means that the Scotus argument might be the only time that Jack Smith and his team is really able to lay out before the American people what the evidence against Trump shows. And that is not the stuff of typical Scotus arguments like, here’s what all my evidence will show. That’s what you sort of tell a jury in an opening statement. And I kind of have a hard time seeing Michael Dreeben, who I assume will argue the case, kind of heeding that call and taking that approach. But I actually think it’s an argument that Smith should think long and hard about that he really has. Not just the justices as an audience, but the American public as a really important audience. And that might mean this is not a typical Supreme Court argument. It’s already not a typical case in a million ways. But this is another way in which this is a pretty atypical argument.


Leah Litman Yeah. Atypical argument, atypical setting. It really is jam packed. The court is also hearing an important decision related to immigration, Department of State versus Munoz, about whether denying a visa to a U.S. citizens non-citizen spouse implicates the constitutional liberty or rights of the citizen spouse. And if so, whether that liberty or right is adequately safeguarded by merely notifying a visa applicant, they were deemed inadmissible. The case implicates the pretty controversial doctrine of consular review ability, an area of law that is among the topics discussed in Professor Ilan Lanthanum, a UCLA law professors article reversing Racist Precedent. So Alen has been a guest on the show before, when he was at the ACLU, and has argued cases before the court. And the article is definitely worth checking out.


Kate Shaw And can I just say, we don’t even have time right now to talk about cases? Also on deck for the same sitting that involve the power of the National Labor Relations Board, malicious prosecution, the meaning of the right to counsel. Like it actually almost feels like the court is deliberately assisting in the efforts to show how enormously important it is, and thus the stakes involved in the presidential election. So in some ways, like, you don’t really even need to make the argument, you just need to point to all of the enormous stakes in all of the enormous cases the court is hearing just in this two week period, to understand the role of the court in American life right now.


Leah Litman [AD]


Melissa Murray That suggests that American culture is a court culture, and that is going to be my segue to the next segment, which is all about court culture and query listeners. Can you even have a court culture without the Fifth Circuit?


Leah Litman No.


Kate Shaw Negative.


Leah Litman It’s not possible.


Melissa Murray I say, no, you not possible. Absolutely not possible. And guess what? There’s been all kinds of new shenanigans going down in the Fifth Circuit. So first up, we wanted you all to know that the country’s chief scientist is also now the country’s chief financial policymaker. So a hearty, Strict Scrutiny congratulations to Judge Matthew Kaczmarek, who’s given himself a new promotion. He really contains multitudes. And in addition to being the foremost expert on pharmaceutical regulation in the country, he is now the foremost expert on financial policy. Yes, that is correct. After we recorded our last episode last Friday, Judge Kaczmarek decided to drop a decision. And of course, we just want to note Friday afternoons is exactly the time when you drop something that’s really, really big, when strict scrutiny has already gone to the day and all of the other news outlets aren’t available to cover it. So. Kate, can you tell our listeners what Judge Kaczmarek’s self-styled promotion to chief financial policymaker involves?


Kate Shaw Yeah, so this is how he donned his new hat as the country’s chief financial policymaker by declaring invalid the Biden administration’s new rules, seeking to modify how lenders extend loans and other financial services to low and moderate income Americans. So these are rules that were promulgated by the Federal Reserve, the FDIC, and the office of the Comptroller of the currency, which had all updated rules regarding fair lending.


Melissa Murray These are all fly by night agencies anyway. What are they know about financial policy.


Leah Litman The Fed right? Famously illiterate.


Kate Shaw Nothing compared to Chief financial policymaker Matthew Kaczmarek. Move over. Right. So? So he obviously, in his infinite wisdom, declared these rules invalid. These had been rules designed to address redlining. That is, discriminatory practices where banks offer less advantageous terms or no terms at all to people living in certain areas. The challenge regulations broadened the areas in which lenders were required to extend loans and other services again to low income Americans. And so, of course, Matthew Kaczmarek decided that they were invalid.


Leah Litman And Judge Kaczmarek relied on one of the more lawless doctrines the Supreme Court has fashioned the Major Questions doctrine to reach this conclusion, essentially saying that because the country’s financial policy is kind of a big deal, i.e. major, it should be conducted by judges rather than the fed checks out. I guess one upshot is we also learned that Judge Kaczmarek doesn’t have to go it alone on financial policy for the courts, because the Fifth Circuit decided to themselves release a decision about financial policy for the country. And that court released a decision nuking yet another student debt relief initiative from the Biden administration. So snaps to them, very busy. A Fifth Circuit panel of Edith Jones, Stuart, Kyle Duncan and Cory Wilson, the latter two Trump nominees, invalidated the Department of Education regulations that allow loan forgiveness for people who were misled and defrauded by their schools. That’s right. Let me say that to be clear, the Fifth Circuit said the government was wrong and acted illegally by allowing student debt relief to people defrauded and misled by their schools.


Kate Shaw It is just it is so galling. It sounds like a parody and yet it is not. So the specific rule that the Fifth Circuit invalidated just expanded the grounds for people to obtain debt relief in cases of fraud, and it established a procedure for forgiving debt for groups of students at schools where there had been widespread fraud seems pretty uncontroversial. The rule said that student debt could be discharged if a school made, quote, substantial misrepresentation that misled a borrower in connection with the decision to attend or made a, quote, substantial omission, a fact related to the same. It also provided for possible forgiveness in cases of a school’s failure to perform its obligations under the terms of a contract or engagement in aggressive or deceptive recruitment, conduct, or tactics. And finally, it provided for discharges in cases where students couldn’t complete education because of a school shutdown. And specifically, it defined a shutdown to be when the school ceased to provide educational instruction in programs in which most students at the school were enrolled. And yet the Fifth Circuit said, no, you got to pay your debt anyway. Doesn’t matter. School closed down. Totally defrauded you. Too bad.


Melissa Murray It should be noted that a lot of these schools where there was found to be fraud in the terms provided to student loan borrowers, often the borrowers in those cases were minority students. So black and brown students, students who were first generation, less sophisticated borrowers. And so basically the Fifth Circuit kind of ways in to say that any steps to help those borrowers is just part. Illegal. Because why not? Why not? Just for all of the people who are really mad at the Biden administration for the failure to secure student loan relief. I’m just going to say that the administration is kind of over two what the federal courts at this point. So just again, to make this clear, it’s not that the administration is not doing anything, it’s just that it’s all getting overturned in these hobgoblin courts, literally stocked with movement conservatives who don’t want any kind of income redistribution to anyone except corporations.


Kate Shaw The story is Biden is doing student loan relief. Trump appointees on the federal courts are taking that relief away. That is a story we have seen repeated twice. And each time the Biden administration has tried to take a run at relieving the crushing obligations of student debt. Trump appointees on the federal court say, nope. No good.


Melissa Murray So all to say, let’s make the courts part of the election again. Let’s make the courts great again with a new presidential administration. All right. And because apparently there isn’t enough insanity for us to live with. We also have some updates again from the Fifth Circuit on the recent judge shopping policy. So a few episodes ago, we reported that the Judicial Conference had promulgated a new policy that would limit litigants ability to, quote unquote, shop for receptive courts. Basically, the policy would require single judge divisions to be part of the broader district wide case assignment mechanism. It was a very modest and somewhat suggests, quite reasonable solution to the problem of every conservative litigant in the country. Rushing to Amarillo, Texas, to file a case and Judge Matthew Kaczmarek, chief financial officer and chief scientist of the United States, in his courtroom because he is the only judge to sit in that division. And when you file a case in that division, you’re pretty much guaranteed to get a decision that’s bonkers. And so if you want bonkers, that’s where you go.


Leah Litman And so while the policy might have partially been aimed at the district in which Judge Kacsmaryk sits, that district responded by initially declining to adopt the new policy. So Nate Raymond of Reuters reported that the chief judge of the Northern District of Texas decided not to follow the policy adopted by the Judicial Conference. And, of course, the Northern District of Texas includes the Amarillo Division, where Judge Kaczmarek is housed. But then another northern district of Texas, Judge Sam Lindsay, who is Bachelorette Rachel Lindsay. His father gave an interview to The New York Times, or at least spoke to The Times and said that the Northern District of Texas chief judge’s letter, quote, did not mean that the judges had made a decision to reject the policy and, quote, so I don’t know.


Kate Shaw So it’s not even clear what’s going on in the Northern District of Texas. And then things got even weirder when the Fifth Circuit decided to get involved. So one Texas District Court judge, judge Mark Pittman, ordered a case transferred to DC because that is where half of the interested parties were based. The case involved the Chamber of Commerce. His challenge to the Cfpb is credit card fee rule, which seeks to protect consumers from excessive credit card fees. Now, the Chamber of Commerce had filed the case in Judge Pittman’s district, even though the Cfpb and most of the interested parties are located elsewhere. And Judge Pittman sent the case to D.C., reasoning that venue is not a continental breakfast, you cannot pick and choose on a plaintiff’s whim where and how a lawsuit is filed. So the judge was requiring the plaintiffs to show why venue was proper where it was filed, and this suggested that the Judicial conference policy, while, you know, not binding, there was nothing in the policy that required a transfer like this. But that it might have been sort of starting to have the effect of moving the needle.


Melissa Murray A nudge?


Kate Shaw Yeah, exactly. As Steve Vladeck suggested on the show a couple of weeks ago, that not binding, it wouldn’t even have applied in a circumstance like this where venue is really at issue. It’s not a question of these single judge divisions, but that it was having an effect on kind of the culture of, you know, judges responses to these various strategic decisions about where to file. And that actually is a salutary effect, even if the policy is binding.


Melissa Murray And this Judge Pittman is not the good Judge Pittman.


Leah Litman I know.


Melissa Murray Not Judge Robert Pittman so it was like totally not necessarily on brand for him. So salutary effect.


Kate Shaw To have been exercising some kind of stranger forbearance and transferring the case to a place it seems like it actually belonged.


Melissa Murray So obviously the Fifth Circuit could not allow this to stand. Right?


Leah Litman No, obviously.


Kate Shaw Nope.


Melissa Murray This is too much. This too much.


Leah Litman Too reasonable.


Melissa Murray The Fifth Circuit got involved, and a Fifth circuit panel purported to issue a stay of the transfer order. So this is an administrative stay. But here’s the problem. The case was docketed in D.C.. So then the Fifth Circuit decided to grant a mandamus petition that had been filed by the Chamber of Commerce and purported to direct the district court to tell the district court in D.C. that it doesn’t have the case anymore. So this is all just. Kind of nuts all the way around. So the Chamber of Commerce is filing a mandamus petition. The Fifth Circuit wants to issue an administrative stay at Can’t because the case has already gone to D.C.. So they grant this mandamus petition from the Chamber of Commerce and then tell Judge Pittman, who is doing something good to tell the D.C. court to like send it back. That’s not a bad thing.


Kate Shaw This is all pretty uncharted stuff I think.


Melissa Murray The panel was a 2 to 1 vote. The opinion is by Judge Willett, joined by Andy Oldham, with a dissent by Judge Higginson. And Leah, I think there’s some really choice points in the Higginson discent.


Leah Litman Judge Higginson, I think, tried to as nicely as possible tell the district court for DC like just ignore this bullshit. So the closing passages quote. Finally, I am confident the District Court for the District of Columbia will give the suggestion that it should disregard a case docketed by it its closest attention and quote. This is basically like a Gwyneth Paltrow. I wish you well to like his colleagues on the fifth circuit and what not.


Melissa Murray Or or bitch, please.


Leah Litman Only, I only like the district court in D.C. actually ended the chambers CFB challenge in the D.C. District Court, noting that the case is open in the Texas District Court. So like pushing it back to Texas as the Fifth Circuit kind of wanted it’s like the worst people in the world always get what they want. And I’m just waiting for the Fifth Circuit to, like, attempt to administratively stay like the eclipse. And just note that, like, they retain jurisdiction over the sun even when it is blocked by the moon. Like, these people are crazy.


Melissa Murray Send the moon.


Leah Litman Right exactly.


Melissa Murray Send it back.


Leah Litman Right.


Kate Shaw So just to, you know, add yet another wrinkle of crazy. It was subsequently reported by Politico that judge will at one of the judges and the majority on the Fifth circuit panel reported stock holdings in Citigroup, which is the second largest issuer of credit cards. And the case is again about credit card fees. So then the Fifth Circuit reached out to the parties to request briefs on whether ownership and a large credit card issuer in this case, constitutes a conflict under the Code of Conduct. So we will await yet another moment.


Melissa Murray Is it unconstitutional to have a credit card?


Leah Litman Well, no.


Melissa Murray Is it unconstitutional to have friends?


Kate Shaw You have to pay your consulting fees using a credit card.


Leah Litman I was just about to say, their letter brief is and what consulting services will I be offered next time? Tip me here. Here’s my Venmo. So the TLDR of this seems to me that the Fifth Circuit is obstructing district judges efforts to tamp down on judge shopping because they will, you know, come hell or high water, retain their role as national policy maker for all the things. And that’s why.


Melissa Murray I really do think this case was just a stunning rebuke to Judge Matthew Kaczmarek getting out ahead of his skis to be not only the country’s chief scientist, but also its chief financial policymaker. The Fifth Circuit was like pick one lane.


Leah Litman No, the Fifth Circuit is like, yeah. No, go ahead, go ahead, go ahead bro. You do that, you keep all your finance cases and you keep all of those drug cases, right? We got to have them all here in Texas.


Melissa Murray They get to make the they get to have the last word.


Leah Litman Oh for sure, for sure, for sure.


Kate Shaw Yeah.


Leah Litman So now one final court culture segment, I worry we are going to have to introduce a new segment, which is Sam Alito, Clarence Thomas, Donald Trump at your cervix. Looks like the continued fallout from Dobbs because latest out of Arizona, as we noted at the top of the show, the Arizona Supreme Court said that the state could enforce its 1864 Pre-roe criminal abortion ban that was passed when Arizona was not yet a state. It was a territory when women could not vote, and many black people were enslaved and black women forced to reproduce because democracy. So the Arizona Supreme Court, we should note that issued this decision had five justices for over 50 years, until Republicans decided to add two new seats to the court to make it seven court packing. Right, exactly. And that was potentially outcome determinative in this case because one of the justices were was recused. And so there were six justices who heard the case.


Melissa Murray Wait, wait, why why was that justice recuse? Why was that justice recused?


Leah Litman Let’s say that justice had, indicated some views about abortion, that the 19th had, reported and uncovered that cast some serious doubt as to whether the justice could be trusted is.


Melissa Murray You’re being too cryptic. He basically posted on Facebook that he thought Planned Parenthood had orchestrated the biggest genocide in American history. And so when this came out he thought it would be prudent to recuse himself as his views seem to be already determined.


Leah Litman Yes. And so that left six justices.


Melissa Murray Who had not posted on Facebook.


Leah Litman Who had not posted on Facebook. And the vote was 4 to 2, with four justices saying this 1864 law could go into effect, two justices saying it could end, and the two two additional justices who were added to the court in 2016 voted with the four. So without those two justices, it would have been 2 to 2. Like they packed the court to revive this zombie law, decided in a previous era to roll back to the Victorian era.


Melissa Murray Yeah. So just going to say this case is an absolute shit show, and not surprising given that the entire Arizona Supreme Court is comprised of Republican appointees. Like that was what you were going to get. But leaving aside that, and also leaving aside the questionable propriety of reanimating as an expression of democratic deliberation, a law that women and people of color played no role in enacting the law is actually going to have real consequences for the provision of reproductive health in Arizona. So it criminalizes the provision of abortion by up to five years in prison. It has no exceptions for rape or incest, and only allows an abortion to preserve the life of the pregnant person. And that’s a dicey proposition for many doctors in Arizona, given that pro-life law enforcement officers have watched a few episodes of Gray’s Anatomy and now think they know as much as trained physicians about what is or is not medically necessary. So I think doctors in the state genuinely have to worry about whether their medical judgment will be second guessed when they provide medically necessary abortions. The state attorney general, Chris Mayes, has vowed to not enforce this law, and that is an important step. I think that’s a lot of bull step that she has made, but it’s important to note that that’s not a panacea here. There are a number of local DA’s who have said that they will enforce this law. And so I think what we’re gearing up to see is a conflict within the state between the state and local authorities about enforcement. And it’s also the case that, many physicians might still worry, even with the assurances from the attorney general, you know. So first, there’s the whole question of what local DA’s will do in terms of enforcement. But there’s also the fact that the AG’s assurances are only good for as long as she is the AG, so only as good as long as this administration is in power in Arizona. So a change of administration, a new governor, a new attorney general will mean a change in enforcement priorities, and that will certainly alter the state of play. We don’t know what the statute of limitations necessarily is with this law. So if there is a change in administration, then, you know, there could still be situations where individuals performed abortions with the assurance that would be enforced. But then the administration has changed, and now the enforcement priorities have changed. Even if the state is not criminally prosecuting doctors who perform abortions, there are still tons of civil consequences for physicians who perform abortions in defiance of the law, so they can face professional licensing issues or censure. And it can also be very difficult for them to actually secure professional insurance if they are actually violating the law. So all to say that. Chaos will ensue.


Kate Shaw And can I say, you know, we don’t we don’t know. It is possible that the assurances of the AG might embolden some subset of, like, brave doctors to decide they’re going to continue providing abortion care in the state of Arizona. But what the state Supreme Court said was physicians are on notice under this opinion, the provision of abortion is a crime in this state, except in this tiny, narrow set of circumstances, where necessary, to save a life. And for all the reasons that Melissa just listed, it’s extremely rational for doctors to be really, really concerned about the consequences criminal, reputational, professional and otherwise that could follow from providing abortion care. So when this decision goes into effect, if it does, which there is a bit of a delay before it will, I think it is right to talk about abortion being completely prohibited in the state of Arizona.


Melissa Murray Some folks have also noted that the loss of Arizona as a place where one could secure abortion is going to be huge for people in Utah because apparently Utah, because of their very restrictive abortion laws, there were just a lot of reproductive refugees going from Utah to Arizona to seek abortion care. Now, they’re likely will be trafficked from Arizona to California. There’s going to be plenty of pressure. There already is plenty of pressure in California, a blue state for abortion access because of the influx of people from other jurisdictions. That’s only going to be compounded in the wake of all of this. It’s worthwhile to note that the decision has been stayed by the court for 14 days, and that is to allow Planned Parenthood, who’s one of the litigants here, to file a challenge to the 1864 laws constitutionality and to allow that litigation to begin. But this looks like where this is headed.


Kate Shaw It does, and I think. If I’m not mistaken, there’s a 14 day pause, and then there’s actually 45 days until the opinion takes effect. So I do think providers in Arizona have suggested that for April and May, they will continue providing abortion care up to 15 weeks as currently allowed under Arizona law. But unless something unexpected arises and a district court accepts, you know, a different challenge this 1864 law. I mean, it seems like there should be a million successful bases on which to challenge it. So I wouldn’t rule out the possibility. But again, barring that,.


Melissa Murray But it’ll come back to this Supreme Court.


Leah Litman Exactly.


Kate Shaw Absolutely. And how do you feel like that those challenges might fair before the Supreme Court.


Melissa Murray I mean like the point you said about the existing Arizona law being 15 weeks, like, wow, the Overton window. Yeah. It’s just like all the way over in new Jersey right now. I’m in New York. Like, that’s wild. Like, I mean. WTF


Kate Shaw That right now that looks like oh expansive coverage for abortion care. Just two years after Dobbs, when that was an unthinkable restriction of the constitutional guarantee that Roe and Casey set forth.


Melissa Murray And that was the point.


Kate Shaw That’s where we are. Yeah. Yeah.


Leah Litman So Arizona voters will likely have a chance to amend their constitution by ballot initiative in order to specifically enshrine protections for reproductive freedom there and thereby, overall, this 1864 law. So the organizers, the people organizing for the ballot initiative are required to collect 400,000 signatures by July. They have said they already have over 500,000. And this initiative would pass with a simple majority vote. So that is going to be extremely important and consequential in Arizona. And just a note about, you know, A.G. Mayes, who has said she wouldn’t enforce the law. You know, she won her election back in 2022 by fewer or less than like, yeah, 500 votes. And so these elections are extremely close. Every vote matters. If you are looking to focus somewhere in order to blunt the effect of Dobbs and mobilize in its wake, Arizona is going to be one of those key locations.


Kate Shaw And there will be a chance to enshrine within the Arizona Constitution a right to abortion that would obviously essentially nullify the ruling that came down, permitting this 1864 law to go into effect. So that’s going to likely be the case in Arizona. It’s going to join Florida, and a number of other states. It could be, I think, as many as 12. There are a couple of other outlier possibilities that could, in theory, bring it up to 14 or 15. So that’ll be all the states in which people will be able to vote directly on whether to expand access to or enshrine protections for abortion, this coming November. But also in every single state, there will be people on the ballot running for offices like attorney general, like state Supreme court justice, obviously like president and representatives in Congress, who are also going to have control over questions of our access to reproductive care and control over our bodies. So, you know, abortion is on the ballot in every single state, not just the states where there’s a ballot question about it.


Melissa Murray Another side note about the Arizona Supreme Court. As you’ve likely heard, the Arizona Supreme Court’s decision here referenced the Dobbs decision repeatedly. This is not surprising. Again, as we said, everyone on this court is a Republican appointee, but they’re also, at least some of them, very much intertwined with the sort of social world of the conservative legal movement of which many members of the United States Supreme Court are involved. So take one, Clint Pollock, he’s worth discussing. He’s a justice of the Arizona Supreme Court. He’s also very big in Thomas world. In fact, Clarence Thomas is the godfather of Clint Bolick son and Clinton Pollock’s wife. Shawna Bolick is an Arizona state senator. She was recently appointed to the seat to fill a vacancy, and in fact, she is the state senator who, according to news reporting, Ginni Thomas, the wife of Justice Clarence Thomas, allegedly contacted about electors in the 2020 election. So I gotta say, there just a lot of weird coincidences binding these individuals in different states together in all of these disparate abortion challenges and election things. And it’s just all very weird to me that they all keep popping up and they know each other.


Kate Shaw We are just curious.


Melissa Murray Curious.


Kate Shaw So it has been a crazy stretch. It is going to be an even crazier stretch before the United States Supreme Court. And who knows what else is going to emerge from the Fifth Circuit and other state courts. So we will do our best to keep you up to speed on all of it in the coming weeks. As you know, the season of bad decisions really comes upon us. And before we go, we wanted to let you know that we are going to be recording our annual listener Grab Bag episode at the end of this month, which means we need your questions. So check the show notes for a link to the Google form, or you can also find it at Strict Scrutiny So if you have a topic you want us to discuss, if you have burning questions you want us to answer, please, please send something in. We want to hear from you.


Leah Litman And one more thing kids can’t vote, but there are still a lot of issues that impact them this election year. Book bans, funding for education and whether or not their parents are complete stress cases, just to name a few. Get the whole family involved with Crooked kids merch. Like “I can’t vote but you can.” Or “read me a banned book”, onesies and toddler tees. They will have the kids in your life dressed for progress. Shop merch for the next generation at


Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell with audio support from Kyle Seglin and Charlotte Landes with music by Eddie Cooper. We get production support from Madeline Herringer and Ari Schwartz, and if you haven’t already, be sure to subscribe to Strict Scrutiny and your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and reviews. And if you give us a five star ruling, we’ll make you a consultant to the show.