The Supreme Court Makes Its Biggest Power Grab in a Generation | Crooked Media
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June 29, 2024
Strict Scrutiny
The Supreme Court Makes Its Biggest Power Grab in a Generation

In This Episode

Leah, Melissa and Kate try to wrap their heads around SCOTUS throwing away 40 years of precedent that allowed federal agencies (and the experts who work for them) to interpret ambiguous laws, not the judiciary. The court also made it easier to criminalize homelessness and harder to charge hundreds of January 6th insurrectionists. A tough day on 1 First Street, to say the least.






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.


Leah Litman I’m Leah Litman.


Kate Shaw And I’m Kate Shaw, and the band is back together for this emergency episode that is somehow still not a term recap because the term will never end. This is hell and we live in it. So because the term is still ongoing, we will just be covering in this episode the three opinions that we got on Friday. And because no, it’s not really going to be the term forever. Monday is in fact the last day of the term. We are going to mix up the usual schedule of episode releases, so you actually won’t have an episode in your feed at the usual time early in the morning. But if you’re not, we haven’t been silenced. That’s like probably still a couple terms off and turns very much on the outcome of the presidential election, though for now at least, we’re still allowed to podcast. All we’re going to do is wait until later in the day. So we’ll get the Monday opinions, recap them later in the day, Monday, and you’ll have them in your ear holes. You know, like probably evening time, Strict Scrutiny After Dark. And then we will have our term review in your ears the next Monday for the following regularly scheduled episode.


Melissa Murray Oh, at some point next week, we are also going to be making a return conjugal visit to the Why Is This happening podcast with husband of the pod with his own pod, Chris Hayes, aka our roadie. So stay tuned for that as well.


Leah Litman It’s so nice to see all the success our roadie has had. So.


Melissa Murray He’s been amazing. Like any.


Kate Shaw He’s really made something of himself.


Melissa Murray It’s been great. He took a job like, you know, and he really, you know, worked up, climbed the ladder, as it were, from strict scrutiny to where he is today.


Leah Litman But back to what is likely to be a very long episode. The court decided it just can’t finish up by the end of June. Which means today we’re just breaking down the vegan. Yeah. They issued on Friday, including their broadside on food safety, health, welfare or financial, consumer and environmental regulation. But before we get there, let’s talk about the fact that the court is going into July. So the last time this happened was Covid, when the court in the country shut down for much of March and April 2020. Because of that, the court had to schedule a makeup argument session in May 2020. And predictably, the decision announcements went into the first week of July after it did so. Now the court had gone into July before that, in October terms 2013 and 2010, though it never happened between 1996 and 2009. So I think it’s fair to say it’s atypical for the court to go into July, and therefore it’s notable that the court is doing so in the term where it is deciding the immunity appeal from the Republican candidate for president. It certainly makes you think.


Melissa Murray Hmhm.


Kate Shaw I mean, going into July, is it a really deliberate f-you, like we are going to go as long as humanly possible and we can.


Leah Litman They’re just having too much fun. And they don’t want the party to end.


Melissa Murray Speaking of the party, let’s shift to the fantastic party favors that the court offered us on Friday. So let’s get into these opinions now. To be clear, we did not get what everyone is waiting for, which is that great white whale of an immunity decision. Obviously the court was not going to release this decision in advance of the debate. But, you know, perhaps in light of the debate, it wasn’t going to release it afterwards either and completely disrupt the news cycle. So we didn’t get anything on immunity, but we did get a pretty big, great white shark that is literally going to devour government as we know it. And that, of course, were the two cases that had been consolidated Loper Bright versus Raimondo and relentless versus Department of Commerce. So a little backstory is in order. In 1984, the court decided Chevron versus Natural Resources Defense Council and in that case held that in circumstances where a statute’s text is ambiguous, courts should defer to the relevant agency to determine the meeting of the statute. Today, 40 years after Chevron was decided, the court overruled this decision, as well as the line of cases that follow from it. Decisions that have literally structured government as we know it for a generation, the chief justice wrote. For the 6 to 3 majority, and all three of the Democratic appointees dissented. In deferring to administrative agencies to resolve ambiguous statutory text, Chevron provided administrative agencies with the authority to do a wide range of regulatory activities. So this is stuff that we rely on every day the regulation of air pollution, food safety regulations, drug safety regulations, workplace protections, clean water, airplanes. If you’ve been following any of the stuff that happens when like doors fly off of airplanes, railroads, transportations, basically every facet of modern American life has been subject to some form of agency regulation.


Leah Litman And whereas under Chevron, agencies would resolve what the statute means now by overruling Chevron. The court is saying, great news, we’ve got this. The federal courts are going to decide what all of these regulatory statutes mean. So Neil Gorsuch is going to be deciding how to make those Boeing planes safer. And I know my personal fear of flying just disappeared at that thought.


Melissa Murray Well, he’s not just a justice. He’s also a pilot. So you’re fine.


Leah Litman You put on those robes and you can just do anything.


Kate Shaw A scientist. Physician, a climate scientist. He’s all the things.


Melissa Murray He contains multitudes.


Kate Shaw He does. But as this exchange makes clear, you know, given the composition of the federal courts, you know, from the Supreme Court on down, it is a safe bet that the courts are going to interpret statutes that give agencies authority to do things with a deeply skeptical eye and, in fact, a focus on deregulation. Right. Like this court and many conservative lower court judges on district courts and courts of appeals will very much want to read statutes to give agencies as little power as possible. Right. So courts are going to be in the position of deciding questions about clean air and water and food and drugs and consumer safety and financial markets, etc.. And again, these courts, courts that are fundamentally hostile to the project of a lot of the things that are at the heart of the agency’s mandates from Congress. And honestly, at the heart of the Project of Inclusive Democracy are going to be deciding what, if anything, agencies can do in these fears. And again, that includes financial regulation, consumer protection, reproductive rights, environmental regulation and more.


Leah Litman I personally can’t wait for Matthew Kazmierczak to resolve more questions about drug safety and efficacy in the United States. That went so well.


Kate Shaw The first time. You’re not going to have to wait very long because that’s all we’re going to get.


Melissa Murray I think it’s important to recognize that this whole shift is not just about disempowering the agencies. It’s about empowering the courts. Right. And so this is part of a pattern of practice of abrogating authority to judges, which is, again, kind of remarkable when you think about the big hit on administrative agencies. And the existence of an administrative state is that it allows unelected bureaucrats to make all of these decisions, and they’re not subject to any kind of electoral pressures. Well, you could say the same things about judges. So but. Why let that get in the way of a good time?


Kate Shaw Outrageous! What? No, no, no, no one would say that about it.


Melissa Murray Anyway, all to say this is a huge deal, and I don’t think people in the mainstream media or on social media were really quite grasping the incredible import of this. This is a dramatic change in American government. And the court did it because they can they have the votes to do so, and they wanted to do so. Chevron and the administrative state alongside abortion, has been the noire of the conservative legal movement for years. And once they had the votes, they took aim. And in the process, they’re disempowering agencies, killing regulation, seizing a ton of power for the federal courts, and I think satisfying their emotional support. Billionaires who have wanted deregulation for a really long time.


Leah Litman Emotional support billionaires with their corporations who don’t want any regulation.


Melissa Murray Well, I mean, these cases were sort of spearheaded by the Koch brothers network. I mean, not a coincidence.


Leah Litman No.


Kate Shaw No, these were a couple of lone herring fishermen, Melissa.


Melissa Murray Mom and pop fishermen. Fighting the government.


Kate Shaw And these were these were unjust regulations. To be clear, there were fishermen in this case. There were families who fished, and they were. That lawsuit was supported and bankrolled by the Koch Industries and several law firms affiliated with the Koch brothers. So, yes, the face of the case, these family, you know, herring fishermen don’t have a whole story.


Leah Litman I would like to take this moment to personally thank the podcast listener who said, after we got this decision, that, quote, if the next episode of strict scrutiny is just the three hosts ranting and constantly swearing enough to make expletive deleted, it sounds like a morse code distress signal. We, the listeners, perfectly understand. And I just want to say thank you, listeners, I feel seen.


Melissa Murray Before we dive into the specifics of this momentous, catastrophic decision. We wanted to contextualize this case in light of some of the other anti administrative state decisions that we got on Thursday, and that Leah covered so well in our last emergency episode. We wanted to cover them together because in combination, this suite of decisions eviscerates many of the varied powers that administrative agencies have. And that’s a huge, huge change. So first there was Jarkesy. That was the decision that limited the FCC’s ability to enforce federal securities laws by prohibiting the use of agency adjudication proceedings for civil enforcement actions. The case is obviously about the SEC, but critically, the SEC isn’t the only agency that relies on agency adjudication for enforcement. So while the challenge was nominally about the SEC, it will certainly have repercussions for other agencies that rely on administrative law, judges and adjudication as a means of resolving disputes. And it will also have real consequences for the already overcrowded federal courts because instead of relying on agency adjudication, agencies will now have to bring their cases in federal courts, which move more slowly and are now staffed with deregulatory enthusiasts. Those would be the judges who are hostile to the whole prospect of regulation, and so the end result will likely be that agencies will be compelled to triage their enforcement actions, focusing on the biggest and most important disputes, while letting some of the others like the stuff that, you know, small bore investors are dealing with, like those things will sort of be shunted to the side in favor of the bigger actions that they can actually push through the federal courts. So this is a big loss.


Kate Shaw Can I just raise one thing that I think you did not cover with Chris and Amanda when you guys broke down Jarkesy in the emergency episode earlier this week? But I just kind of wanted to get your take because I genuinely don’t know what to make of this. So as we’ve discussed on the podcast, we also discussed this with Jon Stewart on his podcast. In this case, the Fifth Circuit held that the enforcement proceedings at the SEC, these particular proceedings were unconstitutional for not one, not two, but three independent reasons. And the Supreme Court here agreed with the Seventh Amendment to jury trial holding. But as to the other two holdings, that this scheme violated the non delegation doctrine and also violated the separation of powers because of the way it protected Aljaz from removal, the Supreme Court just sort of said, hey, since the answer to the jury trial question resolves this case, we do not reach the non delegation or removal issues and I genuinely can’t tell what that means about the other parts of the Fifth Circuit. Opinion. Like the Fifth Circuit said, these aspects of the agency design of the SEC, which are replicated in other agencies, are independently unconstitutional. I mean, I am sure there are district court judges in the Fifth Circuit who are going to say, well, let’s strike down other all these same features of other agencies. And I cannot believe the I mean, I guess I can believe, like the chaos monkeys, that the Supreme Court did not see fit to say anything else, but like, we’re not going to reach it. So presumably they are leaving intact those aspects of the Fifth Circuit’s holding. Am I reading this right?


Leah Litman No, I think that’s right. That’s insane.


Kate Shaw But I mean, you give this power to the chaos monkeys and like, I mean, I don’t know if they notice it and didn’t care. I don’t know if they’re like, so busy, you know, drafting whatever. Your opinion in the immunity case they’re doing. But we have seen a pattern of what feels like kind of real dereliction of sort of the basic function of actually resolving cases, even doing a bad job at resolving them. And I’m not sure they even did that here. Okay. So that’s dark it. We also earlier this week had Ohio versus EPA, which is a case that you guys also covered on that emergency episode. Yeah. And just as a reminder, that case limited agency’s ability to adopt regulations because it basically made it easier for the court to second guess agency regulations and unravel those regulations by essentially claiming that agencies hadn’t addressed some contingency or some comment that maybe hadn’t even been raised and certainly wasn’t important to the rule. So that’s essentially what happened in Ohio versus EPA. And I think it’s clear that it means that going forward, every agency decision that this court does not like will be open to second guessing, at least unless and until Amy Coney Barrett, who wrote, I thought a surprisingly forceful dissent in this case can manage to peel off her fellow. I’m gonna put this in quotes. Moderate consensus driven conservatives like John or Brett. But you know, that really is what the question about things like climate and the future of Earth should come down to where like, can Amy get John or Brett on her side? That’s what we’re looking for here. And the answer right now is no. But I wouldn’t rule that out, at least in some cases.


Melissa Murray Maybe if she smiled more.


Kate Shaw Right. Okay, so that’s two cases that preceded today. Now we have over bright, which says agencies don’t get resolved statutory ambiguity, ambiguities, which means agencies don’t get to decide how much regulation a statute authorizes. Instead, all of these questions are questions for courts. What could go wrong?


Leah Litman Well, you know, the courts who will be answering these questions about food safety, water safety and more are the same ones who referred to the nitrogen oxide gas that causes pollution as, quote, nitrous oxide, aka laughing gas. Not once, not twice, but five times in Justice Gorsuch’s opinion in Ohio versus EPA. So the guys who are confusing laughing gas for smog are now going to be tasked with resolving any uncertainty or ambiguity in the laws governing food safety, consumer welfare, health, environment, climate, clean water, lead paint, like you name it, and more.


Kate Shaw That was a truly egregious error. There was one other tiny one. But in the in the very first sentence, Gorsuch also has a typo, which is that he refers to the Security Exchange Commission instead of the Securities Exchange Commission.


Melissa Murray Ellie must all raise this on Twitter, but can you imagine all of the conservative crowing there would be if Justice Sotomayor or Justice Jackson had made that error in a decision? I mean, again, like.


Kate Shaw They would go.


Melissa Murray Yeah, like, yeah, yeah. I just, you know. DEI like all of that would be fair game. But here we are.


Kate Shaw Yeah. So we were just sort of laying the foundations Loper Bright and Justice Kagan in her dissent, which we all spent more time talking about, really does provide this broader context. So I’m going to read a quote from her here. We’re going to read a bunch of quotes from her dissent in this episode. But the first one is, quote, it is impossible to pretend that today’s decision is a one off in either its treatment of agencies or its treatment of precedent. As to the first, this very term presents yet another example of the court’s resolve to roll back agency authority, despite congressional direction to the contrary. And there she cites George Casey as to the second. Just my own defenses of story decisis, my own dissents to this court’s reversals of settled law by now fill a small volume. And she cites the Dobbs dissent.


Melissa Murray Like Elena Kagan has receipts, which is like I’ve been saying, that’s all the time. All right. We are going to discuss the cavalier ness with which the court overruled Chevron. But just to lay out the stakes up front, I’m going to highlight a couple of passages from the Kagan dissent. So the dissent starts by making clear that Chevron, quote, served as the cornerstone of administrative law and quote and quote, as the warp and woof of modern government, supporting regulatory efforts of all kinds, to name a few. Keeping air and water clean, food and drug safe and financial markets honest and quote. The TLDR here is that Chevron was a huge part of how we make government work for ordinary people, not just for emotional support, billionaires, and indeed, the fact that it made government work for ordinary people, despite the wishes of those many emotional support billionaires, probably explains, at least in part, the right’s antipathy for Chevron. And, you know, there it is.


Leah Litman We’re like two years away from the court ruling, 6 to 3, that all government is unconstitutional. And just returning us to the state of nature.


Melissa Murray Or Star Chamber, where the court gets to do something.


Kate Shaw Yeah.


Leah Litman Yeah. So how did this court overrule Chevron? Well, first, it cited Marbury versus Madison, as you do typically the line quote, it is emphatically the province and duty of the judicial department to say what the law.


Melissa Murray One second. Like literally the most consequential power grab that a court has ever done to justify yet another not quite as consequential, but very consequential paragraph that this court is doing.


Leah Litman A-plus. Yes, exactly. The parallels are many. Also, as we have said before on this show, if you find yourself quoting and generally gesturing toward Marbury as the basis for your argument, that’s probably a big tell that, like, there’s not a lot there.


Kate Shaw Do you remember when else this term, Marbury came up, a lot of the oral argument that immunity case.


Leah Litman Yeah.


Melissa Murray Hmhm foreshadowing takes a seat on the couch.


Kate Shaw Really looking forward to what appearance that opinion makes on Monday. Well, we don’t have long to wait. So the court inciting this chestnut from Marbury that the judiciary has to say what the law is, the court is kind of saying that the Constitution requires courts as opposed to agencies to interpret statutes, although it’s really the Thomas concurrence that goes full bore on the idea that Chevron violates the Constitution. The majority, rather than kind of going quite that far, largely rests its analysis on the Administrative Procedure Act, a statute that has been around since 1946. And the court in this case is basically like, yeah, you all just didn’t realize that Congress actually banned Chevron in 1946. And Chevron has always violated the EPA since 1984, even though we have all of us decided and joined dozens and dozens of cases applying Chevron and apart from Neil in the last few years, and Thomas in the last few years, no one has ever said anything about Chevron violating the EPA. It’s just an argument they decided was one they could, with a straight face, say justified over overruling Chevron. And that’s what they went with reasons and maybe I should say exactly what they are arguing. I mean, I don’t want to dignify it, but at least I should describe it, which is there’s a provision of the EPA which says, quote, the reviewing court shall decide all relevant questions of law and, quote, hold unlawful and set aside agency action findings and conclusions found to be not in accordance with law. So that’s section 76 of the EPA. But as Justice Kagan noted in her dissent, section 706 does not specify any standard of review for construing statutes. Like nothing in the EPA says, courts have to take the first pass at deciding what statutes mean, and nothing. This provision of the EPA, I think, is inconsistent with Chevron, but obviously I’m just a law professor with a podcast.


Melissa Murray And a woman. So shut up.


Kate Shaw The high priests on the Supreme Court have decreed otherwise.


Leah Litman [AD].


Leah Litman So the majority also has some other reasons for overruling Chevron. They point to the supposed confusion surrounding Chevron, saying that the major questions doctrine, among other rules, has created a, quote, Byzantine set of pre-conditions and exceptions, leading some courts to have simply bypassed Chevron, saying it makes no difference for one reason or another who made those Byzantine preconditions an exception, sir.


Melissa Murray It’s me. Hi. I’m the problem.


Kate Shaw Probably Joe Biden. I think Joe Biden probably did.


Melissa Murray That’s the Spiderman GIF where they’re all, like, pointing at each other.


Leah Litman Right.


Melissa Murray Okay.


Leah Litman Yeah.


Melissa Murray All right. The majority not to stop there. Go forward to talk a little bit about starre decisis. Like literally new phone, who dis? Like who is starre descisis, I don’t know him. Anyway, the court notes that, perhaps paradoxically, starry decisis doesn’t require sticking to Chevron, because Chevron requires the courts to determine whether a statute is ambiguous and who is to say what really is an ambiguity?


Leah Litman I think this is in some ways like kind of a cellphone, because if some words and concepts are truly difficult to define, then you’re conceding there is ambiguity, and therefore that it is silly to tell courts to just come up with the one true best definition of statutory terms, rather than considering and deferring to the views of administrative agencies.


Melissa Murray It’s just so it is the magnification of the court. I mean, this is like if Marjorie Taylor Greene, in her hearing with Doctor Fauci, had had more language and possibly some kind of law degree, it might have looked like this. Like we don’t actually care about expertise. I’m not going to call you doctor. Mr. Fauci. Like this is that’s what this is like. I’m going to rely on a court to do this because I don’t trust experts. Okay.


Kate Shaw Yeah, yeah. No, I think that the sort of like deeply anti expertise vibe, it permeates the opinion that the opinion does try to give a couple of reasons that it thinks again are facially plausible. So there’s the exceptions that Leah mentioned this major questions doctrine of course like an exception and other exceptions of the court’s own making. The court goes on to say, look, given our constant tinkering with an eventual turn away from Chevron and its inconsistent application by the lower courts, it’s hard to see how anyone, Congress included, could reasonably expect a court to rely on Chevron in any particular case. So there’s this argument that there’s no serious reliance interests at stake here. And so, you know, that’s one of the big factors in the starry decisis analysis. And it cuts in favor of allowing them to overrule Chevron. And as the fact that there have been thousands of decisions in Chevron in the lower courts, where courts have use Chevron in cases involving the interpretation of statutes, the court sort of like half heartedly tries to say, don’t worry, we’re not saying each and every one of those cases is now open for revisiting, because those decisions are entitled to statutory story decisis. And the mere fact that the court relied on Chevron isn’t enough to overrule them. But like note how little respect this opinion gives to statutory story decisis. It’s really hard to understand why we’re supposed to take seriously, because what the court is trying to do is say, look, we’re not total chaos monkeys. We are not suggesting every single Chevron decision is now fair game for revisiting, but it’s wildly unconvincing that effort. Right.


Leah Litman A little chaos. Are you not entertained? Are you not entertained, America?


Kate Shaw Yeah. I for one, am not entertained. So one other thing to say about the court’s discussion of Chevron, and I should acknowledge here a little sentimental attachment to Chevron as a Justice Stevens opinion. But there is this contempt for Chevron on display at a bunch of places, in the opinion that I actually found pretty enraging. So, according to the majority, this 1984, you know, unanimous opinion in Chevron, quote, gravely aired, quote, turn the statutory scheme for judicial review of agency action upside down quote was always unworkable for good measure. The opinion also says that the Supreme Court later modifications to the original Chevron opinion, quote, transformed the original two step into a dizzying break dance.


Melissa Murray All right, I just have to intervene here. Two things. One, who here believes that anyone on this court knows how to break dance or just dance.


Leah Litman Not me.


Kate Shaw So cringe


Melissa Murray Sonia Sotomayor is like, literally the only person I think can hold a beat. That’s fine. Number two, Chevron was a case against the Reagan administration’s EPA. And in that case, the EPA had interpreted the statute in a truly deregulatory fashion, and the court lost it. That is all to say. The outcome in Chevron did unanimously decided, but now apparently unworkable and gravely wrong decision was completely consistent with conservative antipathy for government regulation and specifically the Reagan administration’s antipathy for government regulation. And it was cheered by conservatives until it wasn’t.


Kate Shaw Yeah, and in some ways, like the fact that Chevron itself was this conservative outcome, this anti-environmental like, business friendly reading of a statute is, I think, part of the reason and this kind of recalls a colloquy from the oral argument. But part of the reason the court is stretching. I say, well, we’re not saying that Chevron itself was wrong, like the court was right to uphold what the EPA did there in kind of protecting power plants and other cases. Applying Chevron might be fine, too. We’re just saying going forward, the whole paradigm is wrong.


Leah Litman As the advocate in that case said, he thought Justice Gorsuch his mother’s EPA’s interpretation of the statute was correct.


Melissa Murray I like your mom’s EPA  I just don’t like these other people’s mom’s EPA.


Kate Shaw Which is for any new listener since then, like that is what inspired Leah to start literally singing on the episode. Neil’s mom has got it going on, which was the first time I thought of the Stacy’s Mom song in decades.


Melissa Murray Never sleep on the fountains of Wayne.


Kate Shaw It was a good song.


Melissa Murray I don’t know if it’s a good song. It is a bop, but.


Kate Shaw It’s a bop.


Melissa Murray A one hit wonder.


Kate Shaw But that that.


Melissa Murray Like Neil.


Kate Shaw That was a hit.


Melissa Murray Bostock


Kate Shaw If only Melissa.


Melissa Murray Bostock was his one slammer and that was a banger.


Kate Shaw And okay, so I got to add McGirt to that list.


Melissa Murray All right, all right. Let me take it back. Fountains of Wayne. It was a one hit wonder. Okay, that’s all I’m going to say.


Kate Shaw Deal fair. Okay. If only that were true about Neil Gorsuch. I fear he has many, many more hits to come. And let me just say one more thing about the way the court talks about Chevron, which is I don’t know about you two, but it really reminded me of the Dobbs court’s similar disdain for Roe versus Wade, which was palpable in the Dobbs decision. Remember, the court describes Roe as involving, quote, an abuse of judicial authority, talks about its faulty historical analysis, calls it egregiously wrong from the start. Also very dismissive of the idea that anybody would have relied on Roe. It like sneers at the idea that, you know, women and their ability to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives. So it’s essentially that Dobbs energy that I think is characterizes the lower court.


Melissa Murray Well, we talked about this when we covered this in both the recap of the argument and the preview of the argument that, you know, a big question in this case, I think everyone knew that Chevron was going down. It was whether they would explicitly overrule Chevron the way that they did Dobbs, or whether they do something more sub Rosa like, narrow it to the point of it being a nub. And, you know, they were just like, you know, big, full throated, overrule this bitch energy.


Leah Litman Hashtag Yolo court. You know, when they conclude that the vibes are off in a previous decision, they just need to end it, as another sign that maybe this is, vibes decision where the court is just kind of like, well, it feels a little off to me at various points, or at least one specific point. It felt like the Chief justice went Coach Taylor on Chevron.


Melissa Murray Do not take the name of one Eric Taylor in vain. Like this. Do not disparage Tami Taylor’s husband by jumping him in with this.


Leah Litman It’s not me, it’s the Chief Justice. So the Chief Justice writes, quote, the framers crafted the Constitution to ensure that federal judges could exercise judgment free from the influence of the political branches. They were to construe the law with, quote, clear heads and honest hearts. So her eyes, full hearts can’t lose. And this is also a nod to Matthew Kacsmaryk, Texas forever, right? Like you keep going, Mattie. Right down in Texas, like.


Melissa Murray Matthew Kacsmaryk is like, if Tim Riggins got to be a judge.


Leah Litman Don’t disparage Tim Riggins like that.


Kate Shaw Have you seen Matthew Kacsmaryk? Come on Melissa.


Melissa Murray Well, I mean, not like. Okay.


Leah Litman That’s cool. That’s not cool, girl.


Melissa Murray Take it out, Melody. Like.


Kate Shaw No. You should live with it. You should have to live with it.


Melissa Murray I mean, Tim Riggins is good for a lot of things. Judging is not one of them.


Kate Shaw Totally fair. And Matthew Kacsmaryk, on the other hand, it’s not good for any things.


Melissa Murray None of those things. And also not judging. All right. All right. The opinion here also appears to acknowledge that Congress can confer discretionary policymaking authority on agencies, and that courts would have to defer to the agency in those circumstances. But here’s the rub. It makes absolutely no effort to provide any guidance as to what might separate policymaking questions that an agency could decide from the legal ones that the court gets to resolve in its infinite wisdom. So it just says, quote, when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation while ensuring that the agency acts within it, unquote. Thanks, John. Very, very helpful. No notes. Ten out of ten.


Leah Litman Congress and the lower courts are like, great. We know exactly what to do now.


Melissa Murray We got it on it. Thank you. The opinion also says that courts may seek guidance from agencies about how to interpret statutes and can rely on that guidance if it pleases the king’s. I mean, I’m sorry if it pleases the courts as a phrase. Sorry. That would be known as Skidmore deference. And again, the whole question of these other forms of agency deference definitely came up in the oral argument here as they debated Chevron. They, you know, they also had to think about some of these other forms of deference, but the logic and reasoning of this opinion. Strongly suggests that courts actually have to come to their own independent conclusions about how to interpret statutes. And all of that suggests that there will probably be new challenges about what is within the purview of agencies and what is within the purview of courts. So I don’t know that this settles much at all. I don’t know if this keeps Skidmore deference off the chopping block. So, so much for overruling precedents in order to settle, quote unquote, conflict. Here we go.


Leah Litman These parts of the opinion, like gesturing toward what a post Chevron world would look like, were so sloppy and slapdash to me, like it seemed as though the Republican justices just, like, got caught up in the conservative legal movements zeal to overrule Chevron without trying to hammer out what a post Chevron world would look like. Like in quoting the Skidmore factors, they leave out some of them and don’t include all of them. And they don’t try to hammer out the distinction between policymaking versus legal authority. And, you know, the court’s failure to think about the consequences of my post, Chevron world are also reminiscent of Dobbs, right? They just overrule it and ignore everyone telling them you’re not going to get out of the business of abortion. This is going to have terrible, horrifying consequences. And it’s just like, yeah, whatever, Leah.


Melissa Murray It’s like you don’t enjoy judicial restraint. I don’t understand what’s wrong with you. This is judicial restraint. You don’t have to decide everything you don’t.


Leah Litman Obviously.


Melissa Murray Leave some things. Leave some things out.


Kate Shaw Should we pivot to the actually good part, which is the only glimmer of sanity on display in this opinion, which was the, of course, dissent by Justice Kagan for the three Democratic appointees.


Melissa Murray Yes, I was supported by three people at a nine member court. So let’s talk about it. Okay.


Kate Shaw I wish the math were different, but I’m glad the Senate is there. So look, the dissent obviously challenges the majority’s newfound, like rabbit out of a hat interpretation of the APA, as we explained. And this is an argument that scholars have been making for some time, but the court has not come close to accepting it. And all of a sudden it is like, oh, Chevron has always violated this 1946 statute. Got it. But we also want to focus on Justice Kagan’s characterizations of what the court is doing, which help to bolster the dramatic consequences, and also the stakes of what the court did here in overruling Chevron.


Melissa Murray So here are some notable notables from this dissent. And I’m just gonna say notable. Quotable is a generous term because she is essentially dragging her colleagues for filth, and I’m here for it. So let’s open the Elena Kagan Library. It’s time for a read. She begins with, quote, a rule of judicial humility. That would be Chevron deference gives way to a rule of judicial hubris.


Leah Litman Fact check. True.


Melissa Murray Here’s another one. As if it did not have enough on its plate. The majority. That’s like bitches. We have a whole other decision that we’ve never.


Leah Litman Where’s that immunity decision, boys?


Melissa Murray As if it did not have enough on its plate. The majority turns itself into the country’s administrative czar. Like, stay in your lanes, fellows. Let’s just decide cases and not other things. So that was shade. If it wasn’t clear. Definitely shade. Here’s another one. The majority cannot destroy one doctrine of judicial humility without making a laughingstock of the second. If opinions had titles, a good candidate for today’s would be hubris squared. That would be a reference to stare decisis and wow, hubris square. It sounds like a great album. I totally buy it. Let’s get it. Let’s get it out there.


Leah Litman Yeah.


Kate Shaw He was squared so good. Okay, let’s read a couple of others. I’m going to read a longer one now. So here goes. Talking about the court, obviously its justification comes down in the end to this. Courts must have more say over regulation, over the provision of health care, the protection of the environment, the safety of consumer products, the efficacy of transportation systems, and so on. A long standing precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint and grasps for power.


Melissa Murray This reminded me of Justice Sotomayor’s dissent. I think it was two terms ago, like this, young and young, and it was this restless court.


Kate Shaw Restless court. But then we added young. Yeah.


Melissa Murray Yeah, exactly.


Leah Litman And you know, no edits to this. Right. Obviously Elena Kagan can like turn a phrase and describe what is happening, but like that description just evoked for me what our future looks like, which is Neil Gorsuch basically mansplaining to all of the PhDs and engineers and experts in the different agencies, like what the ozone is and like what lead paint can be used and not. And like Scotus Splaining science, safety, health, welfare is just ugh.


Melissa Murray There’s a title. SCOTUS Splaining. I like that.


Kate Shaw Yeah. She also okay so back to Kagan. So she also claps back at that cringe claim we were just describing, which is that the court’s exceptions to Chevron have turned the two step into a dizzying break dance. So here’s her response. If this is the. His idea of a dizzying breakdancing maturity needs to get out more. I really liked that.


Leah Litman I did too. I did too.


Melissa Murray I bet Elena Kagan can do the wobble. I wouldn’t put it past her.


Kate Shaw I bet on her and not John Roberts.


Melissa Murray For sure. Oh, yeah.


Kate Shaw Absolutely.


Leah Litman Yeah, yeah.


Melissa Murray KBJ definitely can do the wobble. For sure.


Leah Litman And one more. Again, just to underscore what exactly this opinion is going to unleash, she writes, quote, it gives courts the power to make all manner of scientific and technical judgments. It gives courts the power to make all manner of policy calls, including about how to weigh competing goods and values. See Chevron itself. It puts courts at the apex of the administrative process as to every conceivable subject, because there are always gaps and ambiguities in regulatory statutes and often of great import. What actions can be taken to address climate change or other environmental challenges? What will the nation’s health care system look like in the coming decades? Or the financial or transportation system? What rules are going to constrain the development of AI in every sphere of current or future regulation? Expect courts from now on to play a commanding role. End quote. This is our go to splaining future. And the potential blast radius of this decision is huge. All of the areas she lists and more. All of that goes to Neil Brett and co, and this is just a massive jolt to the legal system.


Melissa Murray We should also highlight some of the separate writings here. There were two barely tolerable concurrence is, one from Justice Thomas and I say barely tolerable just because it was utterly predictable. And I will explain why. And then one entirely intolerable concurrence from Neil Gorsuch, with real pick me energy. He really wanted to write this. This majority opinion. In any event, just as Thomas predictably would have gone further than the majority. So instead of leaving things with overruling Chevron because Chevron deference violates the APA. Justice Thomas wants us all to know that Chevron deference also violates, quote, our Constitution separation of powers, end quote. So we get it. Clarence. You want Chevron dead, dead, dead. It’s pretty dead right now. So just let it go. Let it go. My dude, I mean, he’s basically like, I thought we were in our overruling era for real. Like, let’s eat shrimp, right? This is big shrimp eating energy. If you don’t know what I mean, go back and listen to the live show.


Leah Litman Yeah. We’re at Red lobster. But not to be outdone, Neil Gorsuch took the stage with a meandering, interminable concurrence that purports to elaborate on why starry decisis doesn’t require adhering to Chevron. This is nearly as long as a majority opinion itself. Neil’s is 34 pages to the majority’s 35 restraint rating. That’s judicial restraint. Leaving off that final page, which seems predictable. You know, antipathy for the administrative state is his whole villain origin story. And he also I shit you not invoked Abraham Lincoln’s criticisms of Dred Scott to justify overruling Chevron. He quotes from Abraham Lincoln’s speech to say that Lincoln accepted judicial decisions, quote, absolutely determine the rights of the parties to a court’s judgment. Before acknowledging that Lincoln refused to accept that a single decision could fully settle an issue. It is bananas.


Melissa Murray I mean, he’s totally a ten, but he keeps citing Dred Scott.


Leah Litman By implication here. So.


Leah Litman [AD]


Melissa Murray All right. That was not all of the joy that SCOTUS sparked on Friday. We also got a much anticipated decision in City of Grants Pass versus Johnson. This was the case about homelessness. And this was a 6 to 3 Gorsuch opinion, which also fractured along predictable ideological lines with the three liberal justices dissenting. The court’s conservative bloc upheld the grants Pass law that bans camping out of doors or sleeping out of doors. The law defined the, quote unquote, camping as sleeping in public with any item related to bedding, and it was challenged on the view that it violated the Eighth Amendment because it amounted to cruel and unusual punishment, because it criminalized a status being unhoused with no housing options. Plaintiffs also argued that the Eighth Amendment was implicated because the law criminalizes sleeping, a biological necessity.


Leah Litman And Neal laughing gas the science guy I cite Dred Scott Gorsuch concluded that although the criminalization of sleeping outside might appear to target the unhoused, in fact the law applies to everyone, as he put it, quote, it makes no difference whether the charged defendant is homeless, a backpacker on vacation, passing through town, or a student who abandons his dorm room to camp out in protest and, quote, shorter Supreme Court, stop being poor or campers or protesters.


Leah Litman Right?


Melissa Murray Stop doing all those things.


Leah Litman Yeah.


Melissa Murray Stay in a hotel.


Kate Shaw He is literally saying, without understanding the insanity of it. The law, in its majestic equality, forbids the rich as well as the poor, right? I mean, sleeping under bridges, that is literally what he is saying. But he’s like, missed the point in the most epic fashion.


Leah Litman Neil Gorsuch missing a point. I never.


Melissa Murray Revolutionary.


Kate Shaw Yes. So Justice Sotomayor is, you know, not just going to let this down. She responds in a powerful dissent from herself. And for the three Democratic appointees, basically saying that meaning Neil’s characterization of the world describes a fantasy, right? In reality, the deputy chief of police operations acknowledged that he was not aware of any non homeless person ever getting a ticket for illegal camping in Grants Pass. Officers also testified that laying on a blanket enjoying the park would not violate the ordinance, and that bringing a sleeping bag to look at stars would not be punished. Instead, someone violates the ordinance only if he or she does not have another home to go to, which is the literal definition of being homeless, and that is who is targeted by this law.


Melissa Murray I just wanted to add that this was not the first time that Justice Sotomayor has had to call Justice Gorsuch out on his completely misguided, ham handed command of the facts. So, listeners, you’ll recall her dissent in Kennedy versus Bremerton School District a couple of terms ago, where she actually provided photographic evidence to dispute Gorsuch. It’s very shady and underwhelming recitation of the facts, which missed a lot of major points that would have been useful in the disposition of the case. So she seems to be making a habit of this, and he seems to be making a habit of that. So in any event, listeners will also recall that in Grants Pass, the lower courts here relied on a 1962 court decision, Robinson versus California, which held that it violated the Eighth Amendment to criminalize being a drug addict because drug addiction is a status. While you can criminalize the conduct of using drugs, you cannot criminalize someone for being an addict. Gorsuch, his opinion meaningfully, does not overrule Robinson. But here’s the rub. It definitely suggests that Robinson’s reasoning is questionable. In fact, he says that there are lots of problems with the reasoning, and the majority muses that it would be unclear whether the Eighth Amendment prohibits the criminalization of anything in this regard. The majority did not overrule Robinson, as many commentators feared after oral argument, because there was a lot of overruling energy at that oral argument. But it seems very clear that Robinson has been very much limited and maybe even hobbled and undermined. And with that in mind, Justice Thomas took this nod toward judicial restraint. Personally. Justice Thomas parked his RV for a moment to sit down and put pen to paper and draft a separate concurrence in which he invited his colleagues to finish the job, to go further and actually overrule Robinson so that it was clearly dead, dead, dead.


Kate Shaw Justice Sotomayor’s dissent, which we’ve already mentioned, really centers the lived experiences of unhoused persons. She discusses particular individuals and their cases, including an individual named Jerry Lee, who is a Grants Pass resident who sleeps in a van. As Justice Sotomayor describes it, over the course of three days, he was woken up and cited six times for, quote, camping in the city limits in violation of this ordinance, just because he was sleeping in his van.


Leah Litman She also explained how shelter beds that. Are available, in theory, maybe practically unavailable because of restrictions on them. So she describes an individual, Carolyn Hill, who couldn’t stay at one shelter because she’d have to check in her nebulizer as medical equipment, even though she has to use it at least once every four hours, and she couldn’t use it in her room. Or someone named Blake whose disabilities prevent her from working. And so she can’t comply with the shelter’s requirement that its residents work 40 hour workweeks. The bottom line of this decision is it makes it easier to criminalize homelessness and jail the unhoused. And, you know, I worry it’s going to open up kind of a mass incarceration of the unhoused, because apparently criminalizing homelessness is okay, but criminalizing bribery, that’s just a bridge too far. A bridge gate too far.


Leah Litman Right.


Kate Shaw That’s good. No, it is rich stuff. Snyder and Grants Pass come down in the same way in the same week.


Melissa Murray At least they say chase them out like they they probably under day. It’s not great. Great optics.


Kate Shaw Just one more thing to say though. So obviously the court says as a matter of the federal Constitution and the Eighth Amendment, this claim fails. This ordinance can stand. But that does not mean that there are not obstacles under state law or that the state Supreme court might find under the state constitution. And I just feel like that’s an important refrain for this moment, when this court is going to be as restrictive as we know they will be in reading the protections of the federal Constitution. That’s not necessarily the end of the story of this kind of challenge. And, you know, there are other arguments, I think, even under Oregon law against this ordinance. And so those are not resolved by the outcome in this particular case.


Melissa Murray So another plug for state level constitutionalism.


Leah Litman Stay tuned for some summer episodes on your state constitutional law.


Kate Shaw Yep.


Melissa Murray All right. Well, that brings us to the final decision that we received on Friday, Fisher versus United States, which many of you will remember is the January 6th case, or at least it’s one of the January 6th cases. So Fisher involved the question of the proper interpretation of 18 U.S.C. section 1512, c two, which is the federal criminal law under which many of the rank and file January 6th insurrectionists were charged with violating meaningfully. The special counsel’s indictment of Donald Trump charges Trump with two counts related to the statute. The statute prohibits obstructing, influencing, or impeding an official proceeding, and that prohibition is in one section of the statute, and it follows another provision that prohibits the destruction of documents and records. These provisions were enacted as part of the Sarbanes Oxley Act in the wake of the Enron scandal, where preventing the destruction of documents and the obstruction of official proceedings in the context of an investigation was top of mind for Congress. I say all of this because the case presented the court’s avowed textualist with a real conundrum. By its terms, the text, as it were, the statute would apply to the obstruction of any official proceeding. But the origins of the statute, its purpose, if you will, was squarely focused on Enron style concerns evidence tampering, the destruction of documents in the context of a federal investigation. And typically it’s liberals who argue that we need, in the context of statutory interpretation, to think about both the text and the context of a statute. While conservatives insist that we can answer statutory interpretation questions by focusing exclusively on the text here, though, the January 6th defendants are arguing that you have to look at not just the text, but also the context. And if you look at the context, well, maybe the statute shouldn’t apply in their cases. And so tough times for those who like a little textual healing on the side.


Kate Shaw I mean, to be clear that they were wrong. But that is the argument that was hanging about the courts and that the court did accept.


Melissa Murray So they were only wrong for a minute, and then were right. So there it is.


Kate Shaw Were they right though? They just won. They just won.


Leah Litman What is right? What is wrong? What is law? Who is to say? The vibes were off in these prosecutions tho, so.


Kate Shaw So in terms of what the court specifically did. So basically what these defendants were arguing is that even though the specific section under which they were charged or convicted does not mention, does not say anything about documents or records or destruction of documents or evidence. But surely that’s what Congress had in mind and intended to prohibit when it prohibited otherwise interfering with official proceedings, even though, again, the subsection doesn’t say anything about documents or records or anything else. But this six three opinion by Chief Justice Roberts agreed with the defendants. So basically said that this antecedent provision of a statute that does make reference to documents also carried into the sub two, a requirement of document destruction or similar record tampering.


Melissa Murray It’s almost like when the 14th amendment implies a right to bodily autonomy, even though it doesn’t say so explicitly. Wait. And actually, that’s all wrong. Never mind.


Kate Shaw It’s probably more like the implicit protection of ex-presidents from prosecution, or at least some of that official conduct.


Melissa Murray That’s the one. Yeah.


Kate Shaw I feel like there’s more. And there’s. Yeah.


Leah Litman If you only uteruses just like stormed the Capitol and tried to overthrow the government, maybe they would enjoy some implied rights.


Melissa Murray Maybe.


Kate Shaw Maybe they should.


Melissa Murray No, they probably would still be in jail because the statute interpretation would be completely different for the uteruses.


Kate Shaw Yeah, probably. So we should say the six three split actually isn’t totally predictable. So it was the five Republican appointees. So without Barrett and then Justice Jackson concurring, and I think concurring in part to say, you know, I think two things. One, that some J six ers might still be subject to prosecution under this same statute and the proper interpretation the court lays out in this case, just the cases need to be made out differently, but not necessarily. It isn’t necessarily the case that all of these convictions are now invalid. But she’s also, I think, making a long game point about the importance of purpose in statutory interpretation, which she does think matters. And, you know, she wants to put a stake in that right now. And hopefully, I mean, you know, who knows down the road she will try to like, tie her conservative colleagues to the mast of this mode of interpretation, whether that will work or not. Like who knows. But I suspect that is at least in part, why she joined this.


Melissa Murray I love that Ketanji is trying to bring a CVS receipt to the next the next statutory interpretation party, because she’s like, we were all about purpose back there. And they’re going to be like, Katie’s a totally different situation.


Kate Shaw I know this is the question is like, Is Elena like, oh, honey, we don’t. That doesn’t work.


Melissa Murray You sweet summer child. You’ve only been on this court for two years.


Kate Shaw Yeah, I mean, it’s understandable, but you’ll learn. I feel like that might that might be happening, but like.


Melissa Murray A for effort, like she was, she was trying to lay a marker down and I appreciate it.


Kate Shaw And Justice Barrett wasn’t in the majority and actually wrote the dissent joined by Sotomayor and Kagan, which was actually, I thought, kind of like the Ohio versus EPA case, like a surprisingly forceful dissent.


Leah Litman Yeah. And one thing about the dissent and majority, you know, the majority basically concedes that the dissents interpretation of the law is literally permissible, which, you know, if you think back to the Chevron case when they were just insisting, statutes really only mean one thing if you just stare at the text. It’s kind of an interesting, aside. And then the majority, I think, conceded that it was, quote, context, you know, that led to their interpretation. So, you know, as to whether they’ll follow it in the future. Obviously not. But anyways, so the court narrowed the reach of 1512 C, but it did so in a way that I think preserve the possibility of, you know, upholding some convictions under 15, 12 C for January 6th defendants, because it’s just the case that now, in order to get a conviction, prosecutors will have to make the additional showing that the defendant did something that impairs the integrity or availability of records, documents or objects for use in an official proceeding. That’s what the majority said. And it’s possible prosecutors can make that showing in some January 6th cases if they introduce evidence that the January 6th insurrection impeded Congress’s processing of certificates. The court also added that it is possible to make this showing by establishing that a defendant, quote, created false evidence and quote, in addition to altering evidence, which, you know, I think could prove significant in, you know, special counsel Jack Smith’s case against Trump, given Trump’s involvement in the fraudulent elector slates, though, of course, you know, that additional showing would probably require additional allegations. And, you know, that that could further delay the Trump case at least.


Melissa Murray Well, I think that’s a really important point to underscore. Again, making out that showing is going to require additional evidence and allegations, and that could result in potentially another round of proceedings before Judge Chutkan, in which would delay the start of the election interference trial even more. But it might also be an opportunity to present in an open court forum all of this evidence, which might be the only kind of public adjudication that we get on this question, if we’re not actually going to see a trial start. So maybe that’s the upside of it.


Leah Litman Yeah. And just a bit more on how the majority got to this result. You know, it leaned heavily on the word otherwise, suggesting that it dragged in the preceding sections references to documents. But as Justice Barrett’s dissent pointed out, and as Justice Kagan had noted during the argument, that assumes the answer to the question of what otherwise references and incorporates. You know, it could just be bridging the two provisions as methods of obstructing a proceeding, one by destruction of evidence and the other by other means. So the majority just resorted as all good textualist due to the history of the provision by which they basically meant legislative history and Congress’s purpose.


Melissa Murray When textual lists are actually purpose of this right wing. Barrett’s dissent was definitely prickly. Definitely had some. Hey, I thought we were actually doing real textualism you tools. And it says that the majority reaches its conclusion because, quote, it’s simply cannot believe that Congress meant what it said and quote. And it then goes on to accuse the majority of doing, quote, textual back flips. Do you find some way, any way to narrow the reach of subsection C to end quote? Amy, we hardly knew ye, but I don’t like it. More of this energy, please.


Kate Shaw Yeah, there was there was that. And I also thought she might have been signaling that she is maybe less of a stop this deal enthusiast than some of her colleagues. And if that’s true, I want to. Personally, I apologize for any suggestion that I might have made on this podcast that she seemed a little too comfortable with that phrase during. I actually now can’t remember if it was this argument or the Trump immunity.


Melissa Murray Oh stop it. It was the Trump immunity argument.


Kate Shaw Yeah. So I don’t know. Maybe I’m overeating. It’s subtle, but at a couple of places I did think maybe she was saying she’s actually not super down to coup. Like, okay, a couple things here. Here’s my evidence. It’s not, you know, like necessarily silver bullet but suggestive. So one she says mob of rioters to describe the individuals who stormed the Capitol. Jackson says angry mob. Roberts does quote evidence and, you know, talks about violent conduct but does not use that term mob. I thought that was interesting. She also writes that section 1512 C two is a broad provision. And admittedly, events like January 6th were not its target. Who could blame Congress for that failure of imagination? I mean, it seems like she’s saying like what happened on January 6th was absolutely insane. And I think that and I’m not sure everybody on this quote thinks that, but I at least believe that. And again, probably this is like my overeating and filled with hope that she has some decency in her, but I thought there was at least a chance. That’s what this dissent suggests.


Melissa Murray There’s one thing Kate Shaw’s going to do. It’s gonna give someone the benefit of the doubt.


Kate Shaw I mean, we will see what happens with the decision.


Melissa Murray Our resident Pollyanna, like gonna invite her to the book club.


Kate Shaw Atleast for another 72 hours, we will see. All right. So should we briefly flag some non Scotus news? I mean, there’s one thing that I think we do need to mention, which is that if everything that we just listed wasn’t enough shitty news to send us into the weekend, the Iowa Supreme Court has ruled just ruled on Friday that the state’s six week abortion ban can be enforced. This was A43 opinion that applied rational basis review to uphold the law, which had been enjoined by the trial court, and it is a forceful reminder of the enormous importance of state courts. Again, we’ll talk more about that in the summer episodes. And I just want to mention one line from the dissent authored by Susan Christensen, who is a Republican appointee. But, you know, also has a brain. And she says, quote, the majority’s rigid approach relies heavily on the male dominated history and traditions of the 1800s, which, again, sounds like something we would say.


Melissa Murray So check that into my veins. Yeah.


Kate Shaw And 4-3. So we’re we’re you know, there are people, even Republican appointees who see the madness of this method. And I say to them, join us.


Leah Litman And, you know, just kind of looking backwards at shitty news, as well.


Melissa Murray Backwards and forwards, it’s on all sides.


Leah Litman It’s just been an absolute shit show. This week. So there was a presidential debate.


Kate Shaw Wait like U.S.president?


Melissa Murray Yeah.


Kate Shaw Is that true? Is that right? Did that happened?


Leah Litman We are a Supreme Court podcast. But during said debate, some issues related to the Supreme Court came up and we at least wanted to, I don’t know, say some things about some of what was said because not everything was rebutted, let’s say, in an effective way. And these things just cannot stand. So, for example, Donald Trump claimed that, quote, everyone wanted Roe versus Wade overturned, every legal scholar wanted Roe versus Wade overturned.


Melissa Murray Three legal scholars here. Not true.


Kate Shaw Nope, nope. Not true. Not us.


Leah Litman What I was going to offer is perhaps Donald Trump has a same approach to assessing legal scholarship as Brett Kavanaugh, which is it only counts if a man writes it. You know, but but even then it wouldn’t be true.


Kate Shaw I really wish someone had said that at the time.


Leah Litman Yeah um.


Melissa Murray I wish I could have been his anger translator. So also, there was a really interesting sort of interlude where we were told that abortion is a, quote, complex but not really complex question. And we also learned that Donald Trump, quote, personally supports exceptions for rape and incest, but said that people have to, quote unquote, follow their heart. This is the same guy who put three justices on the court who all said that they had some level of respect for precedent and then went and joined their friends in overruling Roe versus Wade. So I just want to underscore where we are now is a direct result of things that Donald Trump did.


Leah Litman And two quick things about that, because when asked about, you know, whether he would roll back medication, abortion, all Donald Trump would say is, well, I just want to leave it to the states. And the Supreme Court approved medication abortion.


Melissa Murray No, they did not.


Leah Litman Did not approve medication abortion, as listeners of this podcast know, and someone should have said during the debate. And second.


Melissa Murray A moderator could have also interjected there. So I just want to put that out there. Jake Tapper, Dana Bash, not really doing that.


Leah Litman Also, leaving it to the States is a way of saying the following one. It’s okay for states like Idaho and Texas to just straight up ban abortions, even in circumstances that are necessary to save a pregnant patient’s life or health. Right? That is part of what it means to leave it to the States. And second, right. It is a way of saying, I am not going to do anything at the federal level to secure. Access to abortion. Whether that is, for example, retaining the FDA’s current regulations on if a person or not enacting a federal statute, or enforcing a federal statute like EMTALA to ensure that emergency medical care is available. And again, like no one is saying these things. And I just think any person who has dipped their toes into what is happening right now on abortion and reproductive justice could have screamed bloody hell at everything coming out of Donald Trump’s mouth.


Melissa Murray I also want to know when.


Leah Litman Should we pivot to immigration now?


Melissa Murray Yeah, that’s what I was going to say. You know, there was a tee up question for President Biden about abortion, and I’m not sure why. Like he instead began talking about immigration. That was a really important moment for him to, again, connect what has happened with Roe versus Wade and all of the fallout to Donald Trump, his appointment of these really extreme conservative justices, and also to note that although his authority is really limited, the federal government has done as much as it can to try and preserve abortion access. And that includes fighting hard on the question of the FDA’s regulation of the for press down and fighting hard on EMTALA. And it would have been useful, I think, to note, although maybe this is too in the weeds for cable news, but the court punted on both of those questions, likely because they did not want those discussions in the discourse going into an election. But they’re going to come back to it. And he could have made the court, I think, part of this entire debate, like if you care about reproductive rights, you’ve got to care about this court. You got to care about what they’re going to do under Donald Trump. Also, would have been a great time to bring up project 2025. And Comstock, the fact that they don’t even need Congress to enact a nationwide abortion ban. They just need a new president and a new Department of Justice headed by Josh Hawley, Ted Cruz, the gentleman from Cancun, whoever, to start enforcing the Comstock Act. But, you know, crickets on that. And that was really disappointing.


Leah Litman And to underscore a point that I think you made implicitly, Melissa, like when Donald Trump is saying, oh, I’m not going to rollback access to medication abortion or I don’t support a federal ban just to say, look, you put up three nominees to the Supreme Court who told the American people they respect precedent, and that Roe and Casey were such precedents, only to turn around and immediately overrule it and pull the rug out from American woman? Why can we believe anything you fucking say about this issue, given that it’s politically inconvenient for you to acknowledge that you are fine with states forcing women to experience health care emergencies because you just want to leave it to the states or whatever it is you want to do? Like, why should we believe you when you say you’re not going to roll back access to medication, abortion, or anything else? Again, just like ughhh.


Melissa Murray I mean, speaking of lies, Donald Trump said a lot of things about abortion, but I would love to know, as someone who has been writing about this, reading about this for a long time, what the fuck is an after birth abortion? Like, what is that, a post-birth abortion? Like? Isn’t that like one that doesn’t happen?


Leah Litman It’s a null set.


Melissa Murray And like doesn’t happen. And if it did happen, it would be properly referred to as infanticide or murder, which is illegal already.


Leah Litman Yes.


Kate Shaw That’s not abortion. That is murder.


Melissa Murray Right? So I mean, I just like again the sensationalism and again, like there’s a lot you can say about all of the performances, but everyone had room for improvement here on both candidates and both moderators. But coming back and pushing back on this anti-abortion shibboleth about post-birth abortion would have been a really important intervention for the moderators to make. Anyway.


Leah Litman So if that wasn’t enough good news for all of you, we’ll probably wrap up now. Quick reminder that we would love to hear from you for a summer episode to mark our five year anniversary. Five years of good cheer. If you are a regular listener, we would love to hear from you. And if you’re up for it, we’d love to hear from you in your actual voice.


Melissa Murray Five years of mouthy uteruses.


Kate Shaw I mean, honestly, this could be a sort of a cathartic undertaking for some of our listeners figuring out what to do with the emotion, the rage, the like, fear, all of it happening right now. Do it just, oh, hit record. This is what we do. Sometimes it really helps.


Leah Litman Like record a voice memo telling, work it out a little bit about yourself, and then maybe what you do, where you tend to listen. Any favorite episodes or guests or moments or any rejoinder you might want to offer to any of the justices writings? Keep it short, of course. Send those to us at strict And if for whatever reason, you don’t want to send a voice memo, you can just send an email to that address and we can have Melody read some of them. And when the term is done, because we are already desperate, in need of something to lift our spirits, we will include some of them in a special five year anniversary summer episode.


Melissa Murray And if you have songs we totally love, songs like what someone sent us. We actually couldn’t include it in our live show, but we really wanted to. Living a what is it living Aledo loca? Yes, that was great. So good.


Leah Litman Living Alito Loco. Gorsuch’s Mom has got it going on, right?


Melissa Murray I mean I wish someone would do Martha Ann to the tune of Barbara Ann by the Beach Boys. Like someone’s got to think about it. All right. Anyway, so that was great. The chaos agents released the most on a Friday, but not the immunity decision. Let’s let that keep until Monday. And we’ll be back in your air holes on Monday afternoon to give you a little more listening pleasure. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray, and Kate Shaw. We’re produced and edited by Melody Rowell, and Michael Goldsmith is our associate producer. Our interns this summer are Hannah Saraf and Tess O’Donahue. We get audio support from Kyle Seglin and Charlotte Landes, and our music is by Eddie Cooper, production support from Madeline Herringer and Ari Schwartz, and Matt DeGroot is our head of production. Many thanks to our digital team, including Phoebe Bradford and Joe Matusky. And you can subscribe to strict scrutiny on YouTube to catch full episodes. Find us at ScrutinyPodcast if you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. Five stars only. It really helps.


Leah Litman Bonus points for Friday Night Lights references.


Melissa Murray Clear eyes, full hearts. Can’t lose.


Leah Litman This is Tim Riggins favorite podcast.


Melissa Murray For sure. QB one And Landry Landry has had an amazing career.


Leah Litman Yeah.


Kate Shaw Tim, I’ve seen less of sadly.


Leah Litman We are the Tami Taylor of podcasters.


Melissa Murray Yeah, like the twirl. We should do it. Yeah. I love Tami Taylor.


Kate Shaw I want one of those. Yeah. Look, Tami Taylor wineglass me, and. Yeah, that’s a great.


Melissa Murray Did Amy Schumer do that?


Kate Shaw Yeah.


Melissa Murray That was funny.


Kate Shaw Yeah, it was really good.