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June 13, 2022
Strict Scrutiny
The Newly Constituted and Restless

In This Episode

The Supreme Court released four opinions last week (still 20-something to go before the end of the term), so Leah, Kate, and Melissa break them all down. Plus, they address the need for increased security for all federal judges, and offer a recipe for a new, refreshing cocktail to sip while you take in all the news.

Recapped opinions include the bankruptcy case Siegel v. Fitzgerald [8:26], the Medicaid case Gallardo v. Marstiller [10:34], the pro-arbitration-plaintiff-win-after-a-kick-ass-argument-by-lady-lawyer case Southwest Airlines v. Saxon [21:07], and the Bivens case, Egbert v. Boule [26:19].






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


Melissa Murray: I’m Melissa Murray.


Kate Shaw: And I’m Kate Shaw.


Melissa Murray: And it’s June at 1 First Street. So that means we have a number of cases to break down for you, but not as many cases as you would think or expect, given how late into the term it is and how many absolutely enormous, groundbreaking cases the court has yet to decide. But we’ve gotten a few opinions, so we’re going to walk you through those and then we’re going to shift to cover some court and court adjacent culture, including our new regular installment about Ginni Thomas and her text messages, which I’m just going to sort of I think it’s a sort of floating name. Ginni Tonic.


Kate Shaw: Oh, that’s good.


Melissa Murray: Ginni Tonic! Right?


Kate Shaw: Yeah.


Melissa Murray: Like that?


Leah Litman: I love it. I had previously loved The Real Housewives of 1 First Street, although given everything that’s happening at the court, it’s not clear whether that should refer to the spouses or the justices themselves.


Melissa Murray: Or what if the spouses and the justices are inextricably intertwined so that you cannot distinguish between them.


Leah Litman: No, no, no, no. Their professional lives are quite separate.


Melissa Murray: Oh, of course.


Leah Litman: Or so I’m told.


Melissa Murray: Also, we’re starting a new alcohol line and it’s going to be called Ginni Tonic.


Leah Litman: Ginni tonic. The entire last week of June. I am just going to be tweeting like prepping a Ginni Tonic for tomorrow’s ops. And that should be the drink of choice for the January six committee hearings as well.


Melissa Murray: I mean like who doesn’t text and have a G & T? Right?


Leah Litman: Yes.


Kate Shaw: Most of the hearings are like at 10 a.m. in the next couple of weeks. So you know, the evening, hearings.


Leah Litman: Which is also when SCOTUS ops are coming out and therefore we should probably have a G & T. I don’t know.


Kate Shaw: You make a good point.


Melissa Murray: I think that’s right.


Kate Shaw: Yeah.


Melissa Murray: A G.T., G&T..


Kate Shaw: Yeah, exactly.


Melissa Murray: What goes into your Ginni tonic?


Leah Litman: A little insurrection, a little seditious conspiracy. And I would put a rosemary sprig. I love Rosemary.


Kate Shaw: Bitters. A lot of bitters.


Melissa Murray: A lot of bitters.


Kate Shaw: So we will get to opinions and to our Ginni Tonic installment later in the episode. But we want to start with a couple of pieces of news first. So we’re recording this episode on Friday. And Thursday night, as we just alluded to, was the first hearing of the bipartisan January six committee, which has spent the last year interviewing over a thousand people, reviewing many thousands of pages of documents, including emails and text messages from Ginni Thomas. And the committee is now beginning to present its findings to the American public. The opening primetime hearing was, I thought, incredibly effective storytelling and political communication. I have to give credit where credit is due. Liz Cheney, one of the two Republicans on the committee, was really powerful in her searing indictment of both Donald Trump and the members of the Republican Party who continue to either not condemn him in the big lie or, you know, even actively perpetuate it.


Melissa Murray: What Kate means by giving credit where credit is due is that Liz Cheney had zero fucks to give. So she is currently running to keep her seat in the House of Representatives from Wyoming. And she’s already running behind, significantly behind the Trump endorsed candidate in that race. And so her opening statement is not going to help her in deep red Wyoming. And it’s not like there are enough Democrats in Wyoming to sort of turn this around for her. And it kind of didn’t matter. She was just in full DGAF mode, like, I’m here for the Constitution, not you bitches.


Leah Litman: I mean, I thought her closing about how they, you know, after Trump is gone, they will continue to bring dishonor on themselves. Was extremely powerful, as was her preview of some of their extremely damning testimony, including when Trump was hearing that supporters were chanting Hang Mike Pence. He responded approvingly. Extremely important stuff delivered very well. And definitely, you know, if listeners have not had a chance to watch the first of the hearings, we would really, really encourage you to watch it and to watch the others as well. You know, this upcoming week, they will be Monday and Wednesday at 10 a.m., which also happened to be opinion announcement days. And there will also be more in the coming weeks.


Melissa Murray: In other court news. A 26 year old man was arrested on Wednesday morning near the home of coach slash justice Brett Kavanaugh. The man had called the authorities and told them that he was having suicidal thoughts and that he wanted to kill a justice. The affidavit doesn’t tell us which justice he was referring to, but the court’s public information office has suggested that it was Justice Kavanaugh. The individual had traveled from California to the DC area for this purpose, at least in part in response to both the draft opinion in the Dobbs case and in response to the Uvalde shootings. And the individual had a gun and other weapons, and he has since been charged with attempted murder. After seeing officers outside of Justice Kavanaugh’s home, the individual left, and called 911 to report himself and to report his mental health issues and ultimately to turn himself in. And so we just want to say first, this is totally awful, super upsetting, and especially in a week when we’re seeing both existing footage of January six, as well as new footage, that’s also really alarming and disturbing. So, you know, the idea of political violence of this sort does not seem remote at this moment. And these threats to federal judges are not new. Family members of federal judges and judges themselves have been targeted. Just a few years ago, there was a heinous attack on the family of New Jersey District Court Judge Esther Salas, and that attack resulted in the death of Judge Salas’s son. And interestingly, the attacker also had a dossier on Justice Sotomayor when he was apprehended. Interestingly, the attack on Judge Salas did not necessarily prompt, immediate calls for more action on the question of security for judges. But this attack on Justice Kavanaugh and his family, however, has brought more outrage. I think maybe this is just the confluence of everything that has been happening. But Minority Leader Mitch McConnell spoke on the Senate floor in favor of policies aimed at addressing judicial security. And for once, we agree with Mitch. This is something that policymakers need to take seriously. So this is an interesting development and we’re glad that this ended with the individual being apprehended before harm could be done.


Leah Litman: This is extremely serious stuff and I very much hope that Congress takes seriously the security of judges, current and former. You know, you mentioned Judge Salas. There have also been attempted attacks or attacks on other judges. Just last week, there was the former judge in Wisconsin who was murdered. And so this is very much something that I hope Congress acts on. And I also hope that they act on security measures for people who are not officials and can’t be protected by, you know, guards outside their home or additional security details, but still need to be protected from gun violence.


Kate Shaw: And I mean, there’s no question that there has been an uptick in gun violence in recent years, but there have also been other attacks targeting federal judges, members of their families. Ten years or so ago, the family of Chicago federal District Court Judge Joan Lefkow was murdered. You know, this is not an entirely new occurrence, even without congressional action. My understanding is that Attorney General Merrick Garland has ordered increased security for at least Supreme Court justices. I’m not sure about the rest of the federal judiciary, but this is something that can also be addressed to a degree administratively.


Melissa Murray: As long as we have an administrative state.


Leah Litman: And now for the opinions we got.


Melissa Murray: That was my segue. That was my segue.


Leah Litman: Great segue.


Kate Shaw: The queen of segues.


Melissa Murray: Yes.


Leah Litman: So the court handed down four opinions last week and we will briefly touch on each of them. One opinion we got was in SIEGEL versus Fitzgerald. This is a pretty technical case involving the Constitution’s bankruptcy clause and in particular, a requirement that bankruptcy laws be uniform. So the bankruptcy clause empowers Congress to establish, quote, uniform laws on the subject of bankruptcies throughout the United States. The question in this case was whether Congress’s enactment of a significant fee increase that exempted debtors in two states violated that uniformity requirement. The court found that it did. At issue was a program that gave executive branch officials significant administrative control over bankruptcy trustees. When Congress created the program, it exempted North Carolina and Alabama because in those states, bankruptcy judges, rather than Department of Justice officials, continue to handle the administrative aspects of the cases. The different structures meant that the parties in bankruptcy cases paid different fees, and a party in bankruptcy proceedings in Virginia that had to pay the fees that were significantly higher than they would have been had the bankruptcy occurred in North Carolina, filed suit complaining about the unequal treatment. So Justice Sotomayor, writing for a unanimous court, agreed that the unequal fee scheme did violate the uniformity requirement, although the court left the question of the proper remedy for the lower courts to address it in the first instance. That is, whether everyone should pay the higher fees or everyone should pay the lower fees.


Melissa Murray: I love this consensus court. This is great.


Leah Litman: Moderate institutionalist court right now. That New York Times.


Kate Shaw: Story is I know there was so much else going on this week that we did not see a spate of stories about the unexpected unanimity undermining a narrative of a polarized court. But I think we just dodged it because so much else was going on. Those stories might still be written.


Melissa Murray: Well, here’s another case where we didn’t quite have uniformity, but we did get relatively close. And that is. Gallardo versus Marsteller. So in this case, Justice Thomas held for a 7 to 2 court that the Medicaid statute permits a state to seek reimbursement from settlement payments that are allocated for future medical care. So this is a case that we actually previewed earlier. It involved a young girl who was left in a persistent vegetative state after being struck by a truck as she exited her school bus. Her parents sued and obtained a recovery in tort and the state of Florida then turned around and claimed entitlement to part of their tort recovery. Under the federal law governing the Medicaid program. So basically the Medicaid statute requires states to pay for certain medical expenses and then require states to take some steps to recoup those expenses where at all possible. But the statute also sets limits on those recruitment efforts. And where there is a tort settlement, states are permitted to go after portions of the settlement that are for medical expenses, but not for other portions of the settlement allocated to different things. So the specific question here was whether the state could go after money. That was part of a tort settlement that was to be used for future medical expenses at the state Medicaid agency might pay for rather than past medical expenses that the state Medicaid agency had already paid for. So the differences between prospective and actual relief that had already been afforded and here the court said, yes, the state could recover those funds allocated as part of a tort settlement for future medical expenses, ostensibly relying on the plain text of the Medicaid statute. This was another one of those textual healing decisions that we should really call attention to.


Leah Litman: One of the things that is so hard about these cases is, you know, here the plaintiff, Colorado, had been left in a persistent vegetative state. The family sued. And I believe they asked for something like $20 million. You know, they end up recovering like $800,000. And, you know, the state Medicaid agency has already paid out an amount that like roughly approximates that. But not all of that money is just for past medical expenses. It involves a mix of many different things, you know, some of which might involve future medical expenses, other of which might be like pain and suffering and more emotional distress, you know, things that the state Medicaid agency couldn’t claim. And it just makes it, I think, really difficult when you’re asking, like, what can the state get from these awards that really just represent a partial approximation of the full damages, even though, again, the state is paying out a lot for medical care, but like the amount that they recovered in tort is a complex mix of like so many different things.


Melissa Murray: That’s exactly right. And Justice Sotomayor, who interestingly, was joined only by Justice Breyer. I don’t know where Justice Kagan was on this, but in her dissent, she.


Kate Shaw: Well she was in the majority is where she was.


Melissa Murray: I mean. Yes, can confirm, Kate. Correct. But your deeper question, she didn’t write separately. That’s an existential question. Where are you?


Kate Shaw: That I cannot claim to know.


Melissa Murray: In any event, Justice Sotomayor suggested in her dissent that the Medicaid statute actually incorporates. Hold on, ladies. Principles of justice.


Kate Shaw: No.


Melissa Murray: The issue is justice. I know it’s gasp and it reflects a determination that it would actually be unjust for the state agency to get part of the damages where it’s not about being compensated for medical expenses, but perhaps, as Lia suggests, for other things in the settlement that are not necessarily about medical expenses but are adjacent to the injury suffered or.


Kate Shaw: Even for future medical expenses that may never come to pass. Right?


Melissa Murray: Exactly.


Kate Shaw: Like it’s totally speculative.


Melissa Murray: So, you know, Justice Sotomayor was like the issue is justice and the majority was like. Is it? I don’t know. Is it? What’s that?


Kate Shaw: But she’s not saying like these are tragic facts. And for that reason, the state shouldn’t be permitted to recover. She basically says, look, you’re focused on just one part of the statute, but there is a key principle that actually is not a free floating principle that is reflected in two different provisions of the statute that you basically ignore that says states can’t assert claims against the property of Medicaid recipients.


Melissa Murray: This was an interesting part of the opinion that I just want to highlight. I mean, this point that she makes about this principle that states can’t assert claims against the property of Medicaid recipients, the majority sort of suggests that Medicaid recipients don’t have property like the settlement, like because they’re on the dole. Like anything they get through a settlement from a lawsuit. It’s sort of just up for grabs for the state. They don’t own anything.


Leah Litman: I mean, the majority opinion had this very weird tone to me, like describing Medicaid recipients. So in the opening of the opinion but describes Medicaid as being for certain needy individuals met. Cos and then again describes Medicare as focus on like the needy. And it wasn’t said in a way that was like understanding of the various circumstances.


Melissa Murray: Or even neutral or even like, there are sometimes needy people and they need medical care. The end. This did not surprise me at all because I have read Justice Thomas’s autobiography, My Grandfather’s Son, where he is utterly dismissive and sort of low key hostile to his sister, who he notes was for many years on public assistance, as is this sort of read to me. And, you know, perhaps I’m reading too much into it. I don’t think I am. It just kind of read for me like there’s another set of people on the dole, like grifters on the dole. This is actually a little girl in a vegetative state after getting struck by a truck.


Leah Litman: By a bus


Kate Shaw: She was literally leaving. Stepping off her school bus.


Kate Shaw: School bus.


Melissa Murray: And was hit by a truck.


Kate Shaw: Hit by a truck. And just like devastating, devastating injuries. Right. But can’t muster sympathy for anyone. One other point I wanted to raise about that divergence in focus on what parts of the statute are important between the majority and the Sotomayor dissent just reminded me of something that Vic Nurse and Bill Eskridge referred to as textual gerrymandering. And Carrie Franklin, who we’ve had on the podcast, describes as shadow decision points. Basically, the idea is that in statutory cases, the court makes choices about what text matters, and those choices are often outcome determinative, and it doesn’t announce there is a huge sprawling statute. We are just going to focus on these three words. Doesn’t explain its decision to focus on those three words, but it really matters what words it chooses in addition to the tools that it uses to construe those words. And I thought that, again, the dialog between Thomas and Sotomayor was a perfect illustration of that phenomenon.


Melissa Murray: Well, it’s not even that the things that they select to focus on are outcome determinative. It’s it is selective. Right. Like they’re sort of cherry picking what they want to.


Kate Shaw: Absolutely. Yeah.


Leah Litman: [AD]


Kate Shaw: The next case we wanted to talk about is Southwest Airlines versus Axon, which is actually the second big case in a category that I didn’t even know was a category. But this is the category pro arbitration plaintiff win after a kick ass argument by a lady lawyer, this time Jennifer Bennett of Guptill Wessler and by a unanimous court. Right. Like this is wild.


Melissa Murray: More consensus and about arbitration.


Kate Shaw: Right.


Leah Litman: You love to see it.


Melissa Murray: And this is the kick ass lady. Lawyers second win for a plaintiff in a major arbitration case. She was also the lawyer who won new Prime Inc versus Oliveira about how certain other workers were exempt from the Federal Arbitration Act’s requirements to arbitrate their claims. So super impressive.


Kate Shaw: And so she just dominates this area of arbitration law. Absolutely dominates. So the facts. Let’s walk briefly through the facts of this case. So the facts involve Latrice Jackson, who worked for Southwest Airlines as a ramp supervisor. So her work involves supervision, but also sometimes required her to load and unload baggage and other items that travel by airplane across the country. The question in this case was whether under section one of the Federal Arbitration Act or FAA, she belonged to, and I’ll quote the language here, a class of workers engaged in foreign or interstate commerce, which would mean that she’s exempt from the acts coverage. So if she did belong to that class, she would not be required by the FAA to arbitrate her claims here. I guess we should say her claim was that Southwest wasn’t paying required overtime. But so, again, if she’s exempt, she can sue in federal court. If she’s not exempt, she’s required to use arbitration under the FAA. And here the court in, as we said, a unanimous opinion authored by Justice Thomas agreed that she does belong to this class of workers and so is exempt from the FAA, meaning she can pursue her claims in federal court. This is another opinion that really leans into textual healing, right? It is a classic textualist opinion in many ways. It references a number of dictionaries. It throws in some Scalia and Garner, this kind of canonical text for a lot of textual lists that gets cited all the time, both in the Supreme Court, in the lower courts, there’s reference to some Latin canons. Okay. You got your adjusted generis, though. That one gets rejected in the court’s analysis. But basically what the court does is it breaks apart the phrase that I just read into these two parts class of workers and engaged in foreign or interstate commerce and decides what they mean based on, as the court says, they’re ordinary, contemporary, common meaning, though this was not like a totally ponderous Gorsuch style textualist opinion. I have to again credit where do I have to hand it to Justice Thomas? It concedes that text has to be read in context. Not sure if Gorsuch ever really says that. And, you know, at one point it seemed to suggest it’s okay to use statutory purpose to inform interpretation, at least if the purpose is kind of clear from the text itself.


Leah Litman: He didn’t say law is how the word constrains power and all of those other Gorsuch-isms


Kate Shaw: No, He it’s not really I mean like his.


Melissa Murray: No instead he wrote and when I get that feeling, I need textual healing textual healing. It’s so good for me.


Kate Shaw: Something that is very good for me and for all of us. And so using, you know, this form, this, you know, very technical approach, but not quite like such a rigid Gorsuch style textualism. He concludes that, yes, these ramp supervisors are part of this class of workers engaged in foreign or interstate commerce.


Melissa Murray: So I don’t want to take away from what is obviously a huge win in the sprawling category of arbitration wins for plaintiffs by lady lawyers. But isn’t this kind of a captain obvious outcome? Am I missing something? I mean, they were I mean taking bags off a plane.


Kate Shaw: Southwest was basically like unless you are literally flying the plane across state lines, maybe if you’re on it, I guess if you’re on it, that’s okay too.


Melissa Murray: If you are a ramp supervisor with one leg in Oklahoma and one leg in Texas, you are an interstate commerce.


Leah Litman: I was just going to say, like, never underestimate the ability of Neil Gorsuch to find some word in a dictionary that will tell us we should believe him rather than our lying eyes. So I am not willing to undersell this one.


Kate Shaw: Totally. I totally agree.


Melissa Murray: Okay I mean, I literally don’t mean to be a turd in the punch bowl about this one. I’ll be very happy about it. Just just a question.


Kate Shaw: But we should say that it is a very narrow holding and that it’s tethered to the particulars of these particular cargo loading workers and supervisors of that cargo loading. And so there are a lot of remaining questions about the scope of the so-called transportation worker exception that very much remain open. Right. So they’re like delivery drivers and ticket takers. If you’re selling tickets to people who are boarding planes that cross state or national borders, I don’t know. You know, the court does not purport to answer the question of whether those are transportation workers for purposes of the FAA. I agree it’s an important victory should be celebrated, even if it does seem really obvious. I don’t know that it was a foregone conclusion that this is how it would come out, but it is definitely narrow.


Melissa Murray: So FYI, I think the fact that we flagged this as a burden. An area of progressive achievement. We may be signaling to them that they need to close this down so ticket takers don’t file any claims any time soon. I think they’re on to us.


Kate Shaw: That’s fair.


Leah Litman: So the final opinion we got is the latest installment in which constitutional rights to the Supreme Court eviscerate and nullify this week. And that opinion was Egbert versus Bull. So accurate was the last opinion the court handed down last week, and it did so on Wednesday. There had been some scuttlebutt that morning that the court was going to issue the New York guns case, nicea fo versus Bruyn, the case in which the court is expected to strike down the New York permitting scheme for carrying concealed weapons. Wednesday was also the day of some absolutely gut wrenching testimony before the House Oversight Committee from a Uvalde a student who survived the attack by smearing a classmate’s blood on herself from the parents of another student who did not survive the attack, and from an emergency room doctor who cared for the people injured in the attack. And the prospect of that split screen of the testimony regarding Uvalde day and the court announcing Broken was almost impossible to contemplate. And whether or not the court realized this, or because the opinion genuinely was not ready. We did not get through it. Instead, we got a single opinion expert. So this case, if you recall from the preview, involves a bed and breakfast on the Canadian border called. And this is not a joke. Smugglers in.


Melissa Murray: Little on the nose.


Leah Litman: Right. It’s even more on the nose since it actually appears to be like frequented by people who are smuggling people for cross-border transportation who are then turned in by the innkeeper anyways. So the area surrounding the inn is apparently a hotspot for cross-border smuggling of people. And in this case, Egbert was a Border Patrol agent who knew Bull, the innkeeper, and he grew suspicious of a guest at the inn who he thought was engaged in smuggling. So Akbar entered the property without a warrant. Can’t do that. And shoved in through bull in the course of the altercation. Bull later complained about Albert’s unlawful actions to a supervisors, and he then says Egbert retaliated against him by reporting him to state and federal agencies. So Bull the innkeeper filed a suit against Egbert, the Border Patrol agent, under a doctrine that’s called Bivins, a 1971 Supreme Court case. That said you can sue federal officers if they violate your constitutional rights, you can sue them for damages. Bull argued that Egbert violated two constitutional rights first, the Fourth Amendment rights against illegal entry and using excessive force. And second, the First Amendment rights against being retaliated against for, say, reporting an officer for engaging in constitutional violations. Bivins and several follow on cases were decided in a different era, and this very conservative court has had its knives out for Bivins for quite some time and has been narrowing it over time. So the court doesn’t want people to be able to sue federal officials for damages in the absence of, you know, congressional legislation saying they can do so. So the court has been narrowing and narrowing. BIVINS Until there isn’t much left of it.


Melissa Murray: What does that sound like?


Leah Litman: Kind of like the right to access abortion. Bivins has followed a similar track, and the court has also just narrowed. Bivens the ability to sue federal officers in just completely incoherent ways that don’t pass like basic analytical smell tests. So in this case, for example, the court said the innkeeper can’t sue the federal officer on either claim because there’s another remedy here. Well, what is that remedy you say? Like when an officer violates your constitutional rights, it’s because there’s a grievance process that doesn’t award you any relief and is totally unreviewable in court. It’s just like an administrative process that someone could file a grievance, and it just it makes no sense, right? Like no one would sensibly say that’s an adequate alternative to remedy the violation of your constitutional rights. And yet this opinion written by Justice Thomas is six three. With all the Republican appointed justices in the majority, there is a partial dissent by Justice Sotomayor, the. Three Democratic appointed justices concluded that the innkeeper couldn’t sue for the First Amendment claim because that presented a kind of difficult set of circumstances and unique context, but could sue for the excessive force fourth Amendment claim, since that’s just like a claim that arises in like routine policing. The court majority by Justice Thomas recited the task the court had announced in previous cases about limiting Bivins, which is, is the court being asked to extend Bivins the ability to sue a federal officer to a new context? And are there any special factors? Counseling, hesitation? But then the court also says, really, the cases are about a single question. Is Congress better positioned to pass a statute giving you the right to sue rather than courts just recognizing your right to sue, which is what happened in Bivins itself. And the court makes clear the answer to that question is basically always going to be yes.


Melissa Murray: There’s a sort of weird kind of separation of powers fiction that they’re dealing with, like that Congress is not sclerotic and utterly gridlocked and is not actually going to do any of these things. So that may in principle be ideal, but they know it’s not going to happen, which means they’re just not going to be any remedies.


Kate Shaw: Bingo.


Leah Litman: The court adopted this ridiculous test, telling courts to say if there is any reason you can imagine why Congress would be better positioned, you shouldn’t recognize a Bivens remedy. And then in what to me felt like very similar to what we had discussed in Shinn versus Ramirez, the court said, if the government doesn’t note a reason not to recognize a Bivens remedy, courts should just do so on their own. So in a footnote, again, showing some sense of shame, Justice Thomas wrote that the innkeeper also argued that the agent forfeited, you know, lost the argument about the grievance process being an adequate alternative remedy because he didn’t raise it. Justice Thomas writes, We disagree because recognizing a Bivens course of action is an extraordinary act. We have a responsibility to evaluate any grounds that counsel against Bivens relief again, basically stacking the deck in favor of the government against civil rights plaintiffs or civil rights defendants in the case of Shinn versus Ramirez, allowing states or government officials to just like come up with their arguments whenever they can. Doesn’t really matter when. So Justice Gorsuch concurred, saying, let’s just burn it all down and overrule Bivins, since that’s basically what the court is doing anyways.


Melissa Murray: There’s that consensus driven, moderate, incrementalist court. There it is.


Leah Litman: Yeah, the dissent by Justice Sotomayor pulled no punches. Some real Liz Cheney energy accusing the restless and newly constituted court of rewriting the law to insulate border officials and maybe federal officials more broadly from accountability, including for excessive force claims.


Melissa Murray: FYI, I would totally watch a soap opera about the Supreme Court that was called the newly constituted and Restless. I would watch the F out of that.


Leah Litman: I worry it would be a little bit too close to reality right now and therefore wouldn’t be like an escape like I like my soaps and dramas. But.


Melissa Murray: But we’re going into summer. Like summer is like primetime for watching soap operas. Like, I think the newly constituted and restless would be amazing.


Leah Litman: That’s good. Yeah. Yeah.


Kate Shaw: It is always really interesting to me when they’re explicit about a court decision being driven by personnel changes. Right. It’s not that often that they do it like I was just thinking Black men in his concurrence in Casey, so Blackman wrote Roe versus Wade. He concurred, you know, only in part in Casey, because the court allowed some of these restrictive Pennsylvania laws to withstand scrutiny. And so he disagreed with that, but obviously agreed with the part of Casey that said Roe should be reaffirmed. But it said something like, I was this wild paragraph. You remember, this is like he’s like, I’m old. I’m not going be on the court for very long. When that happens, there’s going to be a moment of decision. And like the decision is going to basically rest on a single vote. Right? Like something like the fate of this nation is going to turn on a single vote or something like that.


Leah Litman: I mean, Justice Ginsberg did it in Carhart versus. Yes. Gonzalez, you know, suggesting that Justice O’Connor being replaced by Justice Alito, explained why the court upheld the federal partial birth abortion ban Act after invalidating a state statute.


Kate Shaw: In Stenberg versus Carhart, right? And you know, a Breyer in parents involved, I can’t remember if this is just in his bench statement when he says, like, it’s rare in history that a few have changed so much, so quickly. I think it’s the Breyer dissent and parents involved.


Melissa Murray: Well, even more recently, I think it was either Nick or Hiatt. Nick was the Kagan dissent. And she talked about this like, you know, like.


Kate Shaw: In the takings case. Yeah.


Melissa Murray: Yeah, like what has changed here, right? Could it be you all are different, like they’re new people here. And I mean, she kind of said it out loud. And I think Breyer nods toward it in his dissent in the Hiatt case as well, and sort of specific. He calls attention to like FII, RO and KC are up for grabs. That’s when he really was bringing strong Cassandra. Energy like that really does seem like a million years ago.


Kate Shaw: A lifetime ago.


Melissa Murray: And it was, wasn’t it just 2019.


Kate Shaw: Right when we launched the podcast.


Melissa Murray: Yeah, it feels like 150 years ago that yeah, we were like, this could happen. And then people are like, You, hysterical ladies, get back to raising your children.


Kate Shaw: Yeah. It made me wonder how much the various dissents, if there are various dissents in Dobbs, are going to talk about the composition of the court. I mean, it’s so obvious in DOBBS, I don’t even know if you need to. But given that there is now this practice of doing it in these previous abortion cases, it seems possible. One of the random things to say about the Egbert case, this sort of connects to the tone issues in the opinion, which are the tone and kind of like approach to evidence and claims in the majority opinion. First of all, Thomas is just like gratuitously detailed in his description of the sketchy circumstances surrounding the inn, and he includes a couple of pictures that really there’s no substantive reason to include in Sotomayor. In addition to throwing shade at the court for being newly constituted and restless, seemed to suggest that the court is not really adhering to the actual governing rules for how you’re supposed to draw inferences in assessing competing factual claims. And that the court, in fact, basically draws all these inferences in favor of the Border Patrol agent in question, as opposed to the Bivens plaintiff. So those are the only two other things to flag about the case.


Leah Litman: [AD]


Kate Shaw: Shall we move on?


Melissa Murray: All right, let’s do some court culture. I want to just like in the realm of corporate culture. You know, we don’t often talk about this person on the podcast, but I think this definitely warrants us invoking him for perhaps the first time. So. Ilya SHAPIRO, late of Georgetown University Law Center, got what can only be described as a fawning tongue bath of a profile from The New York Times after he canceled himself from his employment at Georgetown Law via an equally fawning but self-written op ed in the Wall Street Journal, so.


Kate Shaw: I just spit out my Ginni Thomas when you said that.


Melissa Murray: What? Like which part?


Kate Shaw: Tongue bath. The tongue bath.


Melissa Murray: I don’t know what to say. Like, the photograph was hilarious to me, so he’s, like, looking pensively out a window and then strategically placed in the background is a copy of his book. I don’t even know the name of the book is, and he’s just sort of like pensively, considering how he was canceled by himself because he got to keep his job.


Leah Litman: Maybe we should provide more background for our listeners.


Melissa Murray: Yeah. We should back up. Sorry. I’m ahead of myself because it was just so much.


Leah Litman: Its totally it’s totally fair. There’s a lot here. So this is the person who had been hired as an executive director or a director of Georgetown’s Constitutional Law Center after previously working at Cato Institute and other conservative organizations. But before he began his employment at Georgetown, he tweeted out amidst the news that Justice Breyer had retired and during the president’s selection process that he, Ilya SHAPIRO, had concluded that the most objectively qualified person for the job of Supreme Court Justice.


Melissa Murray: Wait actually.  I’m going to stop. Let’s read it.


Leah Litman: Yeah.


Melissa Murray: Objectively, best pick for Biden is Sree Sreenivasan, who is solid prog (progressive) and v smart (very smart) even has identity politics benefit. I love when someone has the identity politics benefit. I carry mine around in my wallet. Even has identity politics benefit of being first Asian parentheses Indian-American but alas doesn’t fit into latest intersectionality hierarchy. So we’ll get lesser black woman who FYI has not even been identified. So basically any black woman anywhere walking the earth with her hysterical lady parts uterus is going to be objectively less qualified.


Leah Litman: Yeah.


Melissa Murray: Like.


Kate Shaw: By definition.


Melissa Murray: Thank heaven for small favors is how he concludes this. But this is someone who plans to take up a position at a law school where ostensibly black women have paid for the privilege of getting a degree.


Leah Litman: Yes.


Melissa Murray: And are also employed, but nothing to see here.


Leah Litman: So what happened is, unsurprisingly, people drew attention to the fact that this was a totally offensive, inappropriate, racist thing to say. Georgetown suspended him, you know, delayed the date of his start and began an investigation. That investigation concluded by saying like it wasn’t within their power to discipline him because the statement happened before he had begun his employment at Georgetown, not wanting to miss out on the cancel culture grift. Ilya SHAPIRO decides to quit himself. You know, as Melissa had summarized.


Melissa Murray: Fired himself


Leah Litman: Via an op ed in a major publication, simultaneous with receiving a profile in another appearing on.


Melissa Murray: Hallmarks of cancelation.


Leah Litman: Tucker’s White Power hour. You know, just all the hallmarks of cancelation. Like when I think cancelation I think profile in New York Times op ed in Wall Street Journal, Fox News appearances.


Melissa Murray: That’s how, you get canceled.


Leah Litman: I’ve never appeared on primetime TV. Why has all of MSNBC and CNN canceled me? Right. Like, I’m canceled. I’ve been canceled. I don’t understand this. What did I do? New York Times profiled me. Right.


Kate Shaw: But looking out a window, just like softly.


Leah Litman: Right? Exactly.


Kate Shaw: Like that’s really important.


Melissa Murray: With the book in the background?


Leah Litman: I haven’t written a book that I’ll display in the background, but I’ll put your co-edited reproductive rights and justice stories in the background.


Kate Shaw: But you’ve reviewed. Same thing.


Leah Litman: Yeah. It’s always the people who don’t understand what true criticism and attacks are, who maintain they are, in fact its worst victim.


Melissa Murray: To be fair to him, he did acknowledge that the tweet wasn’t artfully worded.


Kate Shaw: Yes.


Leah Litman: And really, what more could we ask?


Melissa Murray: Anyway, I’m going to take a big swig of my Ginni Tonic, because guess what time it is, folks? It’s time for our regular installment of What has Ginni Thomas texted? Kate?


Kate Shaw: Well, emailed I think rather than texted.


Melissa Murray: Same. Same.


Kate Shaw: At least since we last covered the topic, I am sure there are more texts.


Leah Litman: And as her lawyers said, it was a form email.


Kate Shaw: Yeah, that’s right.


Leah Litman: Does it even count?


Kate Shaw: And that’s not the Post did mention that there was this like I was like, what bot is? But there evidently is a like harass your state representatives bot out there.


Leah Litman: Or other state legislators. Right. They’re not hers.


Melissa Murray: Ginni at ginni dot com.


Kate Shaw: Right.


Leah Litman: Right.


Kate Shaw: So. Right. So it is a form letter, but the form letter like more money to the schools or keep the beaches open later or. No, this was overthrow democracy. This was bad form letter. And so we knew she had sent it to a couple of Arizona legislators we mentioned on a recent episode. But it turns out she at least as these emails reveal, probably there are more. But as of today we know that she emailed nearly the entire Arizona legislature. It seems as though everyone, but maybe one or nearly every Republican members of the Arizona legislature basically urging them to discard the state returns and to appoint electors for Donald Trump outright, as in Jenny’s view, they have the right to do under Article two of the Constitution.


Melissa Murray: And the independent state legislator theory slash fantasy.


Kate Shaw: Fantasy, yeah. The independent state legislator.


Leah Litman: Its just a form email.


Kate Shaw: Fiction.


Leah Litman: What’s the big deal?.


Melissa Murray: Like obviously the framers put it in an email, sent it.


Kate Shaw: Right? Yeah. Exactly


Melissa Murray: Duhhh. Saved it on Dropbox.


Kate Shaw: I feel like there will be more Ginni news before this episode is even out on Monday morning, but as of Friday afternoon, that’s that’s.


Leah Litman: All I mean that has been the pattern.


Melissa Murray: Friday late Friday as you’re sipping your Ginni tonic, just drops in your lap and you’re like cheers.


Kate Shaw: We still do have to figure out the recipe.


Melissa Murray: We got to find we got to get someone who makes gin to help us out with that. Maybe Queen Elizabeth.


Kate Shaw: Are you fishing for a sponsorship, Melissa?


Melissa Murray: No, I was actually fishing for an invitation to the the platinum jubilee.


Kate Shaw: Oh, much more important.


Melissa Murray: It’s over. It’s over. And I think the monarchy might be over, too, but different.


Kate Shaw: Topic for another episode or a different podcast.


Melissa Murray: I mean, when are we going to have that podcast?


Kate Shaw: When are you going to have that podcast?


Melissa Murray: It’s a great question. It’s a great question like that. That is secretly.


Kate Shaw: Let’s just put it out there into the ether.


Melissa Murray: I’m gonna manifest that.


Kate Shaw: Melissa Murray is ready to do her royals podcast.


Melissa Murray: I’m just telling you like I obviously would not wish this anywhere but when there is a major change in the British royal family, like if someone passed away, like maybe someone at the top. of the chain. I’m here, I know everything about them. I really do.


Kate Shaw: Truly everything.


Melissa Murray: I really, really do. And it’s not just Meghan Markle like I’ve read deeply here. Like, I mean, I grew up in Port St. Lucie Florida literally reading Royalty Monthly magazine at the Barnes and Noble. You look so scared like.


Kate Shaw: We really should do some royals trivia on some.


Melissa Murray: I’d like do it


Kate Shaw: Like mailbag episode.


Melissa Murray: Bring it. Bring it.


Kate Shaw: Because the couple of times I’ve heard you actually like flex those muscles. It is astonishing.


Leah Litman: We can do a summer mailbag episode where each of us comes up with, like, a category of questions, mind would be.


Kate Shaw: Really esoteric stuff.


Leah Litman: All about reality television and Taylor Swift. And trying to think of my third interest or passion in life. I’ll come up with it.


Kate Shaw: The dog the dog.


Leah Litman: I don’t know what kind of trivia you can ask about, like, my golden doodle.


Melissa Murray: Okay, alright.


Leah Litman: That doesn’t feel like a fair category of trivia, but, you know, you can do Royals. Kate?


Kate Shaw: Like, older, what I got I’m obsessed recently with like older distance runners? Like, how fast can older can older workers run?


Leah Litman: Is that your passion? Is that literally your passion?


Kate Shaw: No, it’s like no it’s just sort of a developed I don’t I don’t have a lot of like trivia generating passions. I mean, like I fiction I’m contemporary fiction, you know, historical fiction. I’m like a pretty wide and deep fiction reader.


Melissa Murray: I didn’t know you like historical fiction? I do, too.


Leah Litman: Yeah.


Kate Shaw: Well, we could add that as a category.


Leah Litman: We should do that. We could do that. Mm.


Melissa Murray: Oh, so Kate and I hit the road without Leah last week to attend. This is the court adjacent culture to attend the investiture of Second Circuit Judge Myrna Pérez. And it was really a lovely, lovely event. Judge Perez is the first woman of Latino descent to serve on that court since Justice Sotomayor was elevated to the Supreme Court. So that is lovely. And she’s also a total badass and a former voting rights lawyer with the Brennan Center. So, again, this sort of reflects the Biden administration’s efforts to diversify the professional experiences that federal judges bring to their work. We haven’t had that many truly voting rights lawyers serve on the bench, and she is among some of the ones who are being appointed now. And it was just a really lovely event. It was like heartwarming. Her family was there. Her.


Kate Shaw: Her speech was incredible. She gave an amazing speech.


Melissa Murray: She gave an amazing speech and people gave amazing speeches on her behalf as well, including Bob Atkins of Paul Weiss, gave a lovely, lovely speech. And Alexis Carteron of Rutgers Newark Law School gave a beautiful speech. And her former high school debate friends showed up, which was like so cute.


Kate Shaw: And her coach her high school debate coach who was amazing, who later went to law school, but at the time that he first knew her was coaching high school debate and he stayed very close to some of his debaters.


Melissa Murray: Some of whom are law professors now. So among her little debate circle was UVA professor Michael Schwartzman. So he was there. It was it was really fun. We saw a lot of old friends and we also ran into a lot of people who are friends of the pod and you know, what was on everyone’s mind. Kate, do you want to tell Leo what they’re all asking about?


Leah Litman: I’m curious.


Kate Shaw: Merch, everyone, everyone talks about, like, merch. No, they want to talk substance. But.


Leah Litman: Where’s the merch? Mostly merch.


Kate Shaw: But they also, it was mostly merch.


Leah Litman: We understand. We have received questions about where is the merch for those of you who might not know previously? You know, we had our own merch line, but it was truly like, do it yourself merch. Like we made all of the merch.


Kate Shaw: And by we, meeaning you.


Melissa Murray: Was like Leah.


Kate Shaw: You. It was Leah. I mean we all kind of generated ideas although the two of you, most of them. But Leah executed them all on a website. She is a busy lady. She does not have time to do that now.


Melissa Murray: It was all incredibly nimble. We were like a startup, like, I mean, we said something on the pod. It would become a T-shirt.


Leah Litman: Exactly. And I could do that like within a day or so. But like now that we are part of Crooked Media, they have, you know, a process for developing merchandise, which is a little bit different than our, you know, design it on a Friday night, put it on a print-to-order website 12 hours later. But we are in the process of trying to work with them to develop some merchandise ideas for the podcast. You know, if you have ideas, we definitely welcome them. Feel free to send them to us via Twitter or DM. Or tag us on Twitter or, you know, because we would love to be able to share some merchandise with you shortly.


Melissa Murray: I would just love to see a T-shirt that was just like an ice cold G&T and it just says Ginni Tonic on it. Wouldn’t you wear that for the summer, wouldn’t that be so refreshing?


Kate Shaw: See, in the old days. Leah would have that done by like by cocktail hour.


Leah Litman: In the old days, I would put that up instantaneously. But, but now we’re looking for, you know, that like one thing, maybe two, you know, that can be like the strict scrutiny merchandise.


Melissa Murray: Like “friend of the pod”.


Leah Litman: Yeah, yeah. Right. Like that kind of line like “friend of the pod” or you know Hysteria has Petty so. Something like that. You know, that can be, you know, our strict scrutiny merchandise again, rather than something I just decide on my computer and Friday night put it up you know quickly after.


Kate Shaw: Although, people may be pining pining for those days like just in the merch sense, not in the broader sense but anyway all this to say there will be new merch at some point in the not too distant future. We are working on it.


Melissa Murray: And when it happens, you should buy it immediately because.


Leah Litman: Yeah.


Melissa Murray: It’ll take forever to get anymore.


Leah Litman: So that’s probably all we have time for today. As we brace ourselves for what might come this week.


Melissa Murray: This might be this might be our last good week.


Leah Litman: Yeah. And then the week after that. And honestly, I’m not sure how great this one was, to be fair.


Melissa Murray: I mean, it’s all relative.


Kate Shaw: It’s going to look really good a week from now.


Melissa Murray: Like 2019 looks fucking great now.


Kate Shaw: Yeah.


Leah Litman: Yeah, yeah, yeah. You have me convinced. Strict Scrutiny is a Crooked Media production hosted and executive produced by Melissa Murray, Kate Shaw and me, Leah Litman produced and edited by Melody Rowell, Audio Engineering by Kyle Seglin, Music by Eddie Cooper. Production support from Michael Martinez, Sandy Girard and Ari Schwartz and Digital Support from Amelia Montooth. We also have intern support from Anoushka Chander this summer.


Melissa Murray: Cheers.