The Supreme Court's Second Amendment Mess | Crooked Media
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November 13, 2023
Strict Scrutiny
The Supreme Court's Second Amendment Mess

In This Episode

Kate, Melissa, and Leah recap the arguments in United States v. Rahimi, the case about the constitutionality of gun regulations, featuring diss tracks by KBJ.



Justice Jackson But we have a history and traditions test. I guess I’m a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people’s history counts. So what do we do with that? Isn’t that a flaw with respect to the test?


Kate Shaw Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I’m Kate Shaw.


Leah Litman I’m Leah Litman.


Melissa Murray And I’m Melissa Murray. And last week, the court heard the big Second Amendment case, the United States versus Rahimi. And that argument is going to be our primary focus for this episode. Now, we did not talk about Rahimi a lot in our last episode because we were recapping other cases. But don’t worry, we carved out a good long time to talk about Rahimi on this episode because predictably we have some thoughts.


Leah Litman We also have a good long court culture segment with a lot of updates on the Fifth Circuit. Since we think that context is helpful to understanding the basics of Rahimi and Spoiler. The Fifth Circuit is now invoking the ghost of Robert Bork.


Melissa Murray Of course.


Kate Shaw Okay, stay tuned. We will get there. Bork did not, however, come up in the Rahimi oral argument. So I guess small blessings. So let’s begin with a recap and let’s remind people of the basics of Rahimi. Rahimi involves a challenge to a federal law, 18 U.S.C. Section 920 2g8, which prohibits the possession of firearms by people subject to domestic violence restraining orders. We should also just make brief note of the facts of the case since they came up at oral argument, and I think they do actually really matter here. So the respondent in the case, Zaki Rahimi, assaulted his ex-girlfriend with whom he has a child in a parking lot. He fired a gun at witnesses who saw this happening. The state subsequently imposed a domestic violence restraining order on him and after a subsequent shooting spree, which involved him shooting on five separate occasions, police searched for him, his home, and they found they’re both firearms and the restraining order that prohibited him from possessing those firearms.


Melissa Murray One of the places where he went on the shooting spree was a Whataburger. And I just want to say, if you’re from Texas, like you don’t defile the water burger in that way. You just don’t.


Kate Shaw And that was one of five. Yes. Public discharges of a weapon that happened subsequent to the entry of the DV restraining order against him. So not surprisingly, in light of all this, he was convicted for violating the statute that prohibits those under DV restraining orders from possessing firearms.


Melissa Murray Now, listeners, you may remember that two terms ago in NYSRPA  versus Bruen, the Supreme Court adopted a new legal test for determining whether laws are consistent with the Second Amendment. In the course of invalidating New York’s firearm licensing scheme, the court in Bruen said that if a law infringes the right protected by the Second Amendment, the government will prevail only if it can demonstrate that the law falls within the nation’s tradition of firearm regulation. The question here is how does this test actually work on the ground? At what level of generality do you have to show that a law is part of the nation’s tradition of firearm regulation? Do you have to show that there is the same kind of regulation or it’s sort of in the spirit of past regulation? Totally unclear.


Leah Litman So the U.S. Court of Appeals for the Fifth Circuit, how the law unconstitutional and said it violated the Second Amendment and the Fifth Circuit essentially said there’s no tradition of prohibiting domestic abusers from having guns. So this law isn’t within the nation’s tradition of firearm regulation. And, of course, that theory would blow up an awful lot of firearm regulations, since a lot of current firearm regulations didn’t exist in the 1700s. Bans on guns on the subway or at summer camp, for example, didn’t exist. Bans on obliterating the serial number and your gun bans on ghost guns, bans on high capacity magazines, etc., etc. None of these will have historical twists.


Kate Shaw And there is a reason for that. So no one at the founding or in 1868 when the 14th Amendment was ratified, was filing off serial numbers or for that matter, using automatic weapons, which is, you know, in a nutshell, the reason the Bruen test is so insane. Firearms are fundamentally different today than they were 200 years ago. New firearms may require new kinds of restrictions, and in addition, society has changed our conception of who is dangerous, what is dangerous. That has also changed. We also have a lot of evidence today and studies on the risk of violence when firearms interact with certain kinds of conduct. And Bruen, by its terms seems to throw all of that by the wayside, right? It really seems to say arguments about the policy rationales of gun laws or the reasons we might need to devise new interventions. None of those arguments are on the table. The only thing you can look at when ascertaining the constitutionality of a gun law is the gun laws of yore. That’s the entire inquiry.


Melissa Murray So the Federal government’s theory sought to limit the extent to which this psychotic version of the Bruen test might apply. So in the court’s Second Amendment decisions, the court has maintained that all law abiding, responsible citizens enjoy the Second Amendment right to keep and bear arms. I.e., if you’re not law abiding or not responsible, then the Second Amendment doesn’t apply to you and regulations disarming you are perfectly fine. And at times the government argued that the state doesn’t need analogies that are squarely on all fours with earlier regulations if it can demonstrate that a law is within a safe. Harbor in Brewin like the person is, for example, not a law abiding, responsible citizen. And the government continued to argue more generally that you don’t have to show a very specific on all fours analogy. It’s a historic win. All you have to do is simply hew to these general principles, like the Second Amendment is consistent with disarming dangerous individuals, and that by itself would be enough. So in a very subtle way, it seemed like Solicitor General Preloger might have been trying to turn the history and tradition test into a history and principles test which might save this law. But critically, it would not save this really dangerous line of thinking, which puts all of the eggs in the history basket and again in a basket carried by nine individuals, none of whom is trained as an actual historian. Just again, bringing that up.


Kate Shaw So let’s start with some overall thoughts about the oral argument. One big bottom line takeaway is that it does seem likely that the court will reverse the Fifth Circuit and say that the law is valid on its face, though it might and I think very likely will hold out the possibility that there could be subsequent cases where, you know, the law might be applied to particular people who bring what are known as as applied challenges. And in those applications, the law could be deemed unconstitutional. But this was a facial challenge. The Fifth Circuit had held that the law was unconstitutional in its entirety. And that seems likely to me to be reversed and to be sure that matters a lot. It would be genuinely disastrous for the federal government to lose its power to take guns away from abusers. And so reversal here is really important. But in many ways, the biggest thing that will come out of this case could end up being not just what happens as to this disarmament provision, but more broadly what the court says about the meaning of and the nature of the legal test that will determine whether other firearms regulations are constitutional.


Melissa Murray All right. So why exactly do we think this is where they are headed with this case? Well, at one point, Justice Barrett seemed to suggest that this case is relatively easy for the government. So let’s play that clip now. So you’ve invoked the.


Leah Litman Consensus among the states tradition of dangerousness. And I don’t think you’d get a lot of pushback because this is violence, after all, domestic violence. What about more marginal cases?


Melissa Murray And at another point, even Justice Gorsuch was kind of like this Fifth Circuit thing. Idk, man, I don’t know. This is a little weird. Let’s hear him.


Clip You mentioned the self-defense deress necessity concerns in your opening, but this is a facial challenge, right? So we have to ask is it unconstitutional in any application that would include cases where those circumstances don’t exist? We don’t have to address those in this case, do we?


Leah Litman So that statement references the distinction between upholding the law in general on its face. And you know what? Kate referred to us as applied challenges. You know, some people saying that the law, could it be applied to them in particular? And Justice Gorsuch seemed to be pushing to have the Supreme Court resolve as little as possible, you know, given that it seemed to be headed toward upholding this regulation and that led to this exchange with the solicitor general.


Clip And along the same lines on the facial challenge aspect of it. Do we need to resolve C2 and the questions that Justice Alito was asking, given that the the defendant, the plaintiff before us, the respondent sorry, is is been adjudicated under C1 and we actually have a finding of a credible threat. The dangerousness argument seems most apparent there, and we don’t know much about how all states administer C2 regimes. So I agree that this is a facial challenge and the court could confine its analysis to C1. I guess I would make just two responses to that. One is to say that I think it’s going to be difficult for the Court to avoid the C2 issue. We ourselves have a pending petition where the Fifth Circuit has invalidated an application of the statute in a C2 context. So unless you want to see me here again next term on this issue. Always delighted to see you general. The issue has been fully briefed and we think it’s an important part of the statute.


Leah Litman Just by way of reference, you know, C1 is a provision that applies to domestic violence restraining orders that include a finding that a person represents a credible threat to the physical safety of another. And that was the kind of restraining order at issue in Rahimi, where a C2 says this provision also applies to domestic violence restraining orders that explicitly prohibit certain uses of force. And because Rahimi just involved the first of these C one, but the federal government would obviously like the court to make clear that C2 is also constitutional. You know, it’s unclear what exactly is going to be happening.


Melissa Murray At our favorite father of daughters. Brett Kavanaugh also seemed to be with them on this and also inclined to rule for the government. So basically the real question here is anyone going to disagree with the decision that upholds this law? Well.


Leah Litman Some people really want to.


Melissa Murray Like I was going to say, not to be outdone by Thelma and Louise, it seems like Clarence and Sam are prepared to drive this convertible off of a cliff. So just as. Alito at oral argument, focused on some of the inherent problems of domestic violence, restraining or protective orders.


Clip Well, we are told in some of the amicus briefs that there are situations in which the family court judge who has to act quickly and may not have any investigative resources faces a he she he said she said situation. And the judge just says, well, I’m going to issue an order like this against both of the parties. Do you agree that that occurs? No, I think that that is largely a mischaracterization of what is happening.


Melissa Murray And here’s another.


Clip One more question. The Alameda County Public Defenders amicus brief says that some restraining orders are permanent. Is that true? And if that is true, how do you justify a permanent prohibition, even if the any danger has disappeared?


Melissa Murray I just want to call out here when Justice Alito namechecked the Alameda County Public Defender’s Office brief, again, this is just such a little thing that they love to do. The Alameda County Public Defender’s Office is headed by Brendan Woods, who is the first black chief public defender in Alameda County, which includes Oakland, California. And Watts has been very clear about the impact of the criminal justice system on minority communities in his long tenure in that office. And this brief discussed how restraining orders, at least in California, may actually extend beyond the qualifying conduct and often are imposed with limited procedural protections, all of which often accrue in ways that disadvantage underrepresented minorities. And these are all incredibly good points, but probably points that should really be directed to the California legislature. Instead, it was in this brief and Justice Alito decided to invoke the brief in full, as you heard, and it reminded me of when the Bruen majority invoked the Public Defenders brief about the selective enforcement of gun rights. And I just really want PD officers to think about the ways that their arguments are being co-opted by conservatives to advance a really conservative agenda that could really give a fuck about communities of color. Like literally just think about it for a minute. Like not everything has to be in the brief.


Kate Shaw It’s such a good point. And, you know, look, I mean, to say the obvious, we obviously share frustration with this court’s refusal to give real effect to things like equal protection values or lots of criminal procedural protections, like we were 100% on board. But channeling that frustration, all of it through the Second Amendment. Yeah. Seems really, really dangerous. I think that’s a phenomenon that we’re observing here in the last two big gun cases. And who knows? Like if these briefs continue to be filed, the court is going to seize upon them, at least the conservative justices, as sort of a convenient allies in their efforts to ever expand gun rights.


Melissa Murray I mean like Justice Alito, if you cared about process, you could do this through, wait for it, the due process clause. You don’t have to expand the Second Amendment to.


Leah Litman I don’t know her, He says.


Melissa Murray What is a due process clause? I do not know. Anyway.


Kate Shaw So back to Alito’s concerns about process. Sotomayor jumped in to make clear that whatever the issue with restraining orders and procedural protections might be, none of that was really at play in this case.


Clip Just to be clear, none of the situations that Justice Alito is pointing to are the facts of this case, correct, that were the facts of this statute. That’s right. So I and the constitutionality of this statute is what’s at issue.


Leah Litman So I have to say, I don’t know whether Justice Alito and Justice Thomas are going to disagree with the bottom line result in the case, or instead try to narrow the court’s opinion as much as possible to me that, you know, basically no other gun regulation or very few other gun regulations might be valid. But earlier in the argument, you know, Justice Thomas kind of entered the argument by suggesting maybe the record is just a little too thin to determine whether rookie is dangerous. So here he is on that.


Clip Counsel, would you take a few bit of your time to recount exactly what happened below in this case? Not in the district court, but in state court? I think what’s what does matter is we’re assuming dangerousness or irresponsibility. Take your pick. And we are we have a very thin record. And I’m trying to get a sense of what actually happened in this case.


Leah Litman And the chief had this to say on that topic.


Clip Well, to the extent that’s pertinent, you don’t have any doubt that your client’s a dangerous person, do you? Your Honor, I would want to know what dangerous person means. That doesn’t mean someone who is shooting, you know, at people. That’s a good start. So that’s fair.


Melissa Murray Even the chief seemed to be saying. TLDR Seriously, Clarence, like, did you not hear about the Whataburger c’mon? In other points, the chief justice seemed almost hostile to the federal government, and there was one particularly cringe inducing moment where the chief seemed to fault the federal government for wait for it. Relying on the Supreme Court’s earlier pronouncements about the Second Amendment. So let’s play that clip.


Clip Thank you, Counsel. I guess to get back to the beginning. So why did you use the term responsible if what you meant was dangerous?


Kate Shaw Okay. So the chief is basically saying, why did you use our word? The word we made part of the legal test. Like Justice Scalia in the Heller majority opinion literally said that the Second Amendment, quote, elevates above all other interests the right of law abiding, responsible citizens to use arms in defense of hearth and home. All the federal government did here was use Justice Scalia’s language. And the chief justice is like, why did you do that? Why would you use that word? It was like I for some reason I couldn’t stop thinking about the Princess Bride. Like, I do not think that word means what you think it means, but I just generally didn’t know whether to worry about Roberts memory going or like to celebrate that. There is more grist for our shadowboxing with Justice Scalia as a big theme of the term kind of notion. But I couldn’t understand why he pressed her on just using the court’s own language.


Melissa Murray Scalia’s words are no good here anymore. Take that and go.


Kate Shaw Maybe that’s what he was saying.


Melissa Murray I mean, when you’re too conservative for Justice Scalia, like we really.


Kate Shaw But that’s where we are.


Melissa Murray That’s. We’re in the upside down place, for sure.


Leah Litman [AD]


Melissa Murray On to the legal test. So given that it appears somewhat clear about the outcome the court is going to reach, that is, they are actually, it seems, going to uphold this law. The real question is how are they going to do it? How are they going to get there? Bruyn said what the court said. Right. If you were going to look at contemporary laws, you have to think about them in tandem with these historic regulations. Are they consistent with those historic regulations? And the question here is going to be, are they going to try and cabin that test in general for all cases? Or say something narrower? Like you don’t need a specific analogy when you’re determining whether citizens are responsible or law abiding. Who knows? We don’t know.


Kate Shaw It felt to me like the court is not going to admit that it made a fundamental error and it created this mess and chaos by what it said in Bruen.


Melissa Murray Well, I mean, there are five men on this court, so that tracks.


Kate Shaw Yeah. Yeah, it does that. That’s who. US? We didn’t. We didn’t do this.


Melissa Murray I didn’t take a left turn there.


Kate Shaw No, I mean, it does seem more likely that the court is going to pretend that this case somehow highlights some profound truth about how historical analysis works, that the Supreme Court, in its infinite wisdom, definitely knew and said in Bruen, but that the Fifth Circuit somehow and all the other courts maybe, or at least some of them striking down all manner of other gun laws, also fundamentally misunderstood. So I can’t imagine the Court itself taking any responsibility for this chaos, but it is possible at least that it says some vaguely constructive things about the level of generality at which this historical inquiry has to be conducted.


Leah Litman There’s a possibility of some real tension where maybe you have Justice Thomas and Justice Alito writing separately to say like, no, Bruen said what it said like we meant what we said. You know, like these courts are on to something. Who knows? But I mean, I think the reality is everybody knows Bruen created this chaotic mess, even at the Supreme Court pretends otherwise, like the court is just the guy in the banana suit being like, we’re all trying to find the guy who did this crazy thing blowing up every sensible and needed firearm regulation. But like it’s certainly not us, right? It’s all on the Fifth Circuit. And, you know, it felt like to me some justices were not willing to just go along with that whole, Oh, we’re just clarifying what we said. And Bruen move. Instead, they seem to be pushing for more acknowledgment that what the Fifth Circuit did and some of what this court said in Bruen and like should not be how this works. Even if some of the court’s analysis and Bruen suggested it could have.


Melissa Murray Well, to be very clear, I think there are only a handful of justices on that tip, which may lead us to a very interesting place.


Leah Litman Yes.


Kate Shaw So Justice Kagan very much invited Solicitor General Preloger to just go off on Bruen’s many methodological errors. So let’s play that clip here.


Clip A general there seems to be a fair bit of division and a fair bit of confusion about what Bruen means and what Bruen requires in the lower courts. And I’m wondering if you think that there is any useful guidance in addition to resolving this case, but any useful guidance we can give to lower courts about the methodology that Bruen requires be used and how that applies to cases even outside of this one?


Clip Yes, I think that there are three fundamental errors and methodology that this case exemplifies and that we are seeing repeated in other lower courts, and that this case provides an opportunity for the Court to clarify that Bruen should not be interpreted in the way that respondent is suggesting. The first error we see is that respondent has asserted here and other courts have embraced the idea that the only thing that matters under Bruen is regulation. In other words, you can’t look at all of the other sources of history that usually bear on original meaning, and I don’t think that that can be squared with this court’s precedents, starting with Heller, which consulted a wide variety of historical sources. The same kind of evidence we’ve come forward with here about English practice, state constitutional precursors, treatises, commentaries, state judicial decisions. All of that is relevant evidence about the scope of the Second Amendment right. And I think the court could make clear that it’s not a regulation only test. Second, I think that looking just at regulations themselves, one of the fundamental problems with how courts are applying Bruen is the level of generality at which they’re parsing the historical evidence. Court after court has looked at the government’s examples and picked them apart to say, Well, taking them one by one, there’s a eight minute difference between how this regulation operated in 1791 or the ensuing decades and how Section 922 provisions operate today. And I think that comes very close to requiring us to have a dead ringer. When Bruen itself said that’s not necessary, the way constitutional interpretation usually precedes is to use history and regulation to identify principles, the enduring principles that define the scope of the Second Amendment right. And so we think that you should make clear the court should come up. A level of generality and not that that historical analogs that we’re offering to that degree. And third, and finally, I think that in many instances, courts are placing dispositive weight on the absence of regulation in a circumstance where there’s no reason to think that that was due to constitutional concerns. So, for example, here we don’t have a regulation disarming domestic abusers, but there is nothing on the other side of the interpretive question in this case to suggest that anyone thought you couldn’t disarm domestic abusers or couldn’t disarm dangerous people. And in that kind of context, I think to suggest that the absence of regulation bear substantially on the meaning of the Second Amendment is to take a wrong turn.


Kate Shaw You can almost hear the contempt in Justice Kagan’s voice when she asks this question, right? She refers to, quote, the methodology just dripping with contempt that Broun requires. Like you could hear the air quotes around the term methodology. And that was one of many excellent moments from this argument. She also did give Preloger a softball to, you know, ask for the moon in getting the court to clean up its mess.


Melissa Murray Okay, so can we talk about those for a minute? I think it’s probably entirely appropriate for Preloger to do what she did, but as an advocate. Right. So she basically said, you all are perfect. You announced a very excellent test. It’s these lower court nobs who have completely botched it. And now you need to correct them and tell them about what your actual excellent test means. Please set the record straight for these morons. The Fifth Circuit has misunderstood your infinite wisdom. And I mean, like seven out of ten writing. Like, I get it. You’re constrained. Like, you can’t go all the way off, But I wish you’d gone a little bit off and just been like, Dude, this test is bonkers. Like, have you seen what’s happened? Like, this isn’t just the Fifth Circuit, like fifth circuits going to Fifth Circuit, but part of this is on you like this test is a bag of dicks.


Leah Litman Yeah. You know. Obviously, like, it would have been nice to have someone say, like, you fucked up. You said some crazy shit, right? And like, now we are seeing the consequences of that. So maybe you should revisit it and admit your mistake. But. You know.


Melissa Murray So. But we’re law professors so we can say that Solicitor General Preloger is the solicitor general of the United States and she’s got to go back and we never have to go. So we’ll just say it for her will be her anger translators.


Leah Litman There we go.


Melissa Murray This test is crazy and bonkers and literally no advocate in the world should have to defend this nonsense.


Kate Shaw I know.


Leah Litman Yeah.


Kate Shaw She really is a saint just for having to stand up there with a straight face and just defend this monstrosity of a test that is like.


Melissa Murray You did great work sweetie. You’re doing great sweetie.


Kate Shaw Everyone else is misunderstanding it, and that’s a problem. So just please clarify. I mean, she said it with a straight face.


Melissa Murray They’re just jealous of you.


Kate Shaw I deeply admire her ability.


Melissa Murray They’re jealous of you. You’re perfect.


Leah Litman Yeah um. So someone who was kind of unwilling to go along with that facade. Among the justices who wanted to push back on this idea that the Bruen method was, in fact a method that could be cleaned up was the clean up queen Justice Jackson, who was not willing to go quietly into the night with the whole oh Bruen was on to something. We just need to clarify it. Instead, she was like, I do not think so, you clowns, you are not going to get away with this one.


Melissa Murray So let’s walk through how KBJ kind of upended this oral argument by pointing out repeatedly everything that is stupid about this test. Early on in the argument, she directly went at this question about the level of generality you have to look for in an historical tradition and the problems inherent in that approach. So let’s hear her there.


Justice Jackson May I ask a question about that, though, I guess I’m trying to understand whether we can really be analyzing this consistent with the brew and test at the level of generality of dangerousness. I wonder whether we need to be taking into account how historically domestic violence in particular was treated so that if we had evidence that, you know, men who engaged in domestic violence historically were actually not perceived as then dangerous from the standpoint of of disarmament, what what would we do with that in this situation?


Melissa Murray And then when the federal government said that you don’t need an exact prototype, but simply some trend or evidence of disarming dangerous individuals. Justice Jackson came back with this banger.


Justice Jackson And what’s the point of going to the founding era? I mean, I thought it was doing some work, but if we’re still applying modern sensibilities, I don’t really understand the historical framing.


Leah Litman And Justice Jackson was not finished. Here she is in the theory Adams section of the questioning where each justice takes turns. Is Solicitor General Preloger.


Justice Jackson Justice Jackson. And just to clarify, in response to what you just said to Justice Barrett. The determination of dangerousness would be evaluated based on what modern legislatures think counts as dangerous, were not bound to what qualifies as dangerous back in the day.


Leah Litman It’s almost like Justice Jackson was committed to making this legal test, right, No matter what these clowns were going to say. And then Justice Jackson had what I thought was just this absolute banger of a hypothetical getting at the absurdity and in some ways like cruelty of the Bruen test.


Justice Jackson And finally, let me just ask you, prospectively, from the standpoint of a legislator today, I mean, we’ve been talking about sort of the retrospective view of this. You know, when there’s an existing gun control measure that’s being challenged, how do we determine by looking at history whether or not it’s constitutional? But let’s say I’m a legislator today in Maine, for example, and I’m very concerned about what has happened in that community. And my people, the constituents, are asking me to do something. Do you read Bruen as step one being go to the archives and try to determine whether or not there’s some historical analog for the kinds of legislation that I’m considering?


Leah Litman And just the prospect of imagining the legislature, who is very concerned about their community like really badly, wants to do something to improve people’s lives and help everyone. The court is telling them, like, go to the archives and see if you can find an analogous gun regulation. It’s just crazy.


Melissa Murray If anything. Was this the only allusion to Lewiston, Maine? I think so, yeah. I mean, like you absolute ghouls.


Leah Litman Remember in Bruen, Justice Alito went absolute apeshit when Justice Breyer actually talked about the mass shootings that had occurred in the lead up to Bruen and how legislatures need to do things in order to stem all of those mass shootings and violence. And Justice Alito is like.


Kate Shaw Buffalo in particular, he took umbrage at the invocation of Justice.


Leah Litman Alito, was like, why are you mentioning that? Right? These gun regulations couldn’t have effected that. No point.


Kate Shaw But Jackson obviously was not in any way cowed. And she continued in this very out in portion of the argument with Rahim’s lawyer, she continued to press on the problems with anchoring this approach to history, and specifically her discomfort with a history of disarming people based on race.


Justice Jackson But we have a history and traditions test. I guess I’m a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people’s history counts. So what do we do with that? Isn’t that a flaw with respect to the test?


Melissa Murray Oh, is there another way you could read this? Amazing.


Leah Litman Can’t be certain. Can’t be. I have to say, throughout this argument, which I was listening to live, I was contemplating the possibility of new intro music for the show. That was like a mash up of like Justice Jackson just dripping with disdain for brewing and coming at this historical approach. But it did make me think. And I think, Melissa, this is kind of what you were alluding to. Like, is there a possibility she will write separately to take on the Bruen method and let’s say she wants to Is the pressure to cobble together a majority to cap in the Bruen method, including justices who join that majority opinion and like what history and traditions approach. Will that pressure be too strong a disincentive to do that?


Melissa Murray I hope not. Please me to a concurrence, just track. Justice Jackson like the world needs to hear this. Like just. Yeah, because I thought this was the point. She was like, this was the point we have made over and over again about emphasizing these moments of history that are literally about prioritizing moments of democratic deficit. She’s like, Wait, wait, wait. We’re doing this for black people by relying on a method where we thought black people were 3/5 of a person. Oh, that seems right. Like that seems incredibly normal. I mean, someone should say it. And so, yes, it’d be great to have a majority here. It’d be great to uphold the law, but someone should still separately write to say this test is bonkers and ridiculous.


Leah Litman I totally agree. And I just feel like the pressure for the courts to uphold this law on its face is so strong. Right? She is not going to peel off someone from that majority opinion by pointing out the errors. A brute maybe. Right? You don’t get like a majority for some like method, but I just feel like if you’re unwilling to clean up your mess Supreme Court, it’s not her job to do that and like go with this stink in order to, you know, get the court to do the right thing. I don’t know, but that’s just me.


Melissa Murray There is another moment from the argument. This was, you know, Katie Jay had done her work basically murdering the Bruen tests. And it seemed like Justice Kagan was like, you know what? I would like to murder Bruen, too. I would like in on this murder game. So let’s hear that.


Clip Do you think that the Congress can disarm people who are mentally ill, who have been committed to mental institutions? So setting aside an enumerated powers problems over there in the District of Columbia or something like that. There’s definitely a tradition for restricting sale or provision of weapons to the mentally ill that the the. All the all the all the examples that the government has cited are late. They’re post-Civil War sources, I think, for that. If not so, I think maybe is the answer to this. Crazy, honest truth. Mr. Wright, I feel like you’re running away from your argument, you know, because the implications of your argument are just so untenable that you have to say, no, that’s not really my argument. I mean, it just seems to me that your argument applies to a wide variety of disarming actions, bans, what have you that we take for granted them, because it’s it’s so obvious that people who have guns pose a great danger to others. And you don’t give guns to people who have the kind of history of domestic violence that your client has or to the mentally ill or what have you. So I guess, you know, I guess I’m asking you to clarify your argument because you seem to be running away from it because you can’t stand what the consequences of it are.


Leah Litman The Kagan line of you are running away from your argument because the implications of that argument are untenable. Reminded me so much of her line from the CFEB case where she just kind of marched Noel Francisco for saying like, okay, you have this legal theory, but whenever I present you with the implications, you just say, Oh, that’s too important or whatever for me to stick to the theory. And she seemed to be making that same point here.


Melissa Murray I just love this tag team here. I mean, they are the Roxie Hart and Velma of this whole situation is like Chicago murderer’s row. Love it. More of this.


Leah Litman This is what I want. Exactly.


Melissa Murray And the only thing that would have made it better if Justice Sotomayor jumped in. She seemed really quiet in those. Like, I couldn’t tell where she was on this.


Leah Litman You know, this is part of the benefit of having like three.


Melissa Murray Three.


Leah Litman Right. Amazing justices. It’s like they’re.


Melissa Murray They’re like, girl, hydrate. We got this.


Leah Litman Exactly.


Melissa Murray Go hydrate Sonia.


Leah Litman Yeah. Exactly.


Melissa Murray Like, go have a Gatorade. It’s cool. We got this.


Leah Litman Fix your wig. Find your light. Right. And, like, next argument.


Kate Shaw All right, we’re almost done bringing you clips, but we have another small bundle of clips.


Melissa Murray Clip-a-palooza.


Kate Shaw Exactly. And reflect on what’s going to happen with the Bruen method and whether anything here will fix the problem. So let’s play Solicitor General Prelogers closing in which she basically told the court, despite her extreme decorum throughout the argument and in this closing, I think the clear message she was sending is that the implications of this are on you. And so here she is.


Clip My friend began his argument this morning in response to a question from Justice Kagan, saying that he does read Bruen to require the government to come forward with a precise historical analog in order to justify a modern day firearms regulation. I think that is a clearly incorrect reading of Bruen. Unfortunately, it’s a profound misreading that many lower courts have been adopting, and I think that it’s important for the Court to understand the destabilizing consequences of that. Reading in the lower courts. Just last week, a court invalidated Section 920 2g1, the felon Prohibition statute on its face as applied to the most violent and horrific crimes imaginable on the theory that the government didn’t have a sufficiently precise historical analog to justify a permanent ban on felons. Many courts, now several district courts, have credited as apply challenges to Section 920 2g1 by armed career criminals who have multiple convictions for aggravated assault, drug trafficking, armed robbery, clearly violent crimes, because we don’t have a sufficient historical analog disarming those subject to precisely those crimes at the founding and a court has also invalidated on its face, the provision of federal law that prohibits possession of firearms with obliterated serial numbers. Again, on the theory that we don’t have a founding era analog that is sufficiently precise that says you have to serialize firearms possession, I think that those are clearly untenable results. They are profoundly destabilizing and Bruen doesn’t require them. Once the court corrects the misinterpretation of Bruen, then I think the constitutional principle is clear You can disarm dangerous persons and under that principle, Section 922 eight is an easy case.


Melissa Murray This was an excellent diss track, right? It was basically, you guys suck at tests.


Leah Litman Still needed an anger translator. Exactly. That’s what I wanted her to say.


Melissa Murray You guys suck at making tests. Like, you’re terrible at making up tests.


Kate Shaw At least she seemed to convey that if the court doesn’t do something to rein this test in, then the consequences really do lie at the feet of the court. And so she seemed to be putting a choice to them. And I think it resonated.


Melissa Murray You know, she would have loved this, you know, to have really loved us. Justice Stephen Breyer would have been like, yes, inject this into my vein and see what it was. That’s rebuttal. Yeah. Yeah. Pour one out for our homies. You okay?


Kate Shaw That’s right. I hope he was listening somewhere. She went on discussing concerns relevant to. This case and its implications.


Clip And the third reason why Section 922 G8 should be an easy case is because it does guard against a profound harm. A woman who lives in a house with a domestic abuser is five times more likely to be murdered if he has access to a gun. And it’s not just the harms in the home. It extends to the public and to police officers as well. I was struck by the data showing that armed domestic violence calls are the most dangerous type of call for a police officer to respond to in this country. And for those officers who die in the line of duty, virtually all of them are murdered with handguns.


Melissa Murray TLDR Basically the Fifth Circuit is a methodological error and I kind of think she’s right. Let’s make a shirt. That’s a shirt. That’s some merchandise right there.


Leah Litman The Fifth Circuit is a methodological error. Yeah. Invite me to the Fifth Circuit Judicial Conference. I will wear that shirt.


Kate Shaw No one is inviting you. Or any of us into the Fifth Cicuit Conference.


Leah Litman It’s a dare Kate.


Melissa Murray It’s a dare. If you dare.


Kate Shaw Cowards, they wouldn’t do it.


Leah Litman Exactly.


Melissa Murray I actually thought this was very similar to her opening. Let’s hear a little bit about her opening. I mean, we’ve covered a lot, but what’s one more clip in clip-a-palooza? Let’s do it.


Clip Mr. Chief Justice, and may it please the court. Guns and domestic abuse are a deadly combination. As this court has said all too often, the only difference between a battered woman and a dead woman is the presence of a gun.


Leah Litman So predictions, overarching thoughts? You know, I kind of think that even if the court or when the court upholds this gun regulation, there are still going to be more chaos and problems because it’s not going to be clear when the court is going to be cool with ratcheting up the level of generality. And here, just like relying on a general principle, you know, inferred from history, whereas, you know, when it might instead require specific examples, because I think the court will, in other cases revert back to requiring more specific analogies where the challenge wouldn’t be so awkward and ridiculous and subject the court to public ridicule. This is something dynamic that Michael Dorf has called the originalism to step, you know, where justices kind of go back and forth between relying on very specific historical practice and insisting that’s necessary and other times ratcheting up the level of generality and relying on general principles and the pressure to go up. A level of generality here is so strong given the evidence. But, you know, that is outside the Bruen method, right, as we noted at the outset. And so you’re going to have this weird situation where the Court’s approach to Bruen method is potentially dictated by these hostage considerations and stuff. The court doesn’t talk about like the evidence linking guns and domestic violence to death, but there isn’t going to be a rule that says, Here’s what specifics are required and here’s when they’re not. The court probably won’t even acknowledge when it does something different. So you will still have some courts like the Fifth Circuit testing the limits and boundaries of what the court will do and allow the Fifth Circuit to get away with. And to me, that’s just a recipe for chaos and disaster.


Kate Shaw Yeah, I totally agree. And I think it’s important. That’s an important counterpoint to some of the sort of sighs of relief that the court is likely to uphold this law that seemed to characterize the initial reception of the argument. It seemed like, okay, this law is going to stand. And so actually the court is not quite as unhinged as people have feared. And I don’t think that’s true at all. They’re going to uphold this law and the method is still an unbelievable disaster. And that, I think, is actually the most important takeaway here.


Melissa Murray I mean, if you’re listening to mainstream media, like they’re trumpeting this as a major victory, a major victory for women, and again, I hate to be the turd in the punchbowl, but let’s just do it like it’s a muted victory. If it is a victory and don’t like, obviously, we’ll celebrate when they uphold this law, and I think they will. But this test is going to live on and it’s going to do incalculable damage to women all around the country. And it’s not just a test that’s used for guns Like this is the test that was also used in. DOBBS So there’s a way in which this case is not just a follow on to Bruen, it’s also a follow on to Dobbs. And they seem to have no appetite for correcting it.


Leah Litman Yeah.


Kate Shaw But, the court is not done. They apparently had such a good time with the Rahimi argument. They decided they wanted to take more gun cases. They couldn’t possibly just rule in favor of the government, likely in a gun case, without essentially doing some offsetting work. To underscore that, they still really are enthusiastic about the Second Amendment and the NRA’s vision of it and essentially what a jurist once called the hoax perpetrated on the country by the NRA. And that is not just our take. That was Warren Berger. Remember him, noted liberal squish rhino, former chief justice of the United States. So let’s roll this gem from the archives, because we’re supposed do history and tradition now, and so.


Melissa Murray We can do it too. Bitches.


Clip If I were writing the Bill of Rights now, there wouldn’t be any such thing as the Second Amendment, which says that a well-regulated militia being necessary for the defense of the state, the people’s rights to bear arms. This has been the subject of one of the greatest pieces of fraud. I repeat the word fraud on the American public. My special interest groups that I have ever seen in my lifetime.


Kate Shaw As an aside, Justice Stevens really loved that clip.


Melissa Murray Well, obviously, the court has changed a lot since 1991, when Chief Justice Burger gave that interview to Charlayne Hunter-Gault. Just last week, the court granted cert in NRA versus Vullo. And in that case, the NRA is arguing that it’s being discriminated against. Specifically, it argues that the head of the New York Department of Financial Services induced banks and insurance companies to avoid doing business with the NRA because of the NRA’s unpopular views. And here’s the rub This is a qualified immunity case. So just like it’s better and better. Of course, they’re going to say the one time where officials are not entitled to qualified immunity is when they are regulating the NRA and eff y NRA. Maybe the New York Department of Financial Services isn’t inducing anyone. Maybe banks and insurance companies just aren’t that into you. Think about it. The court also granted cert in Garland versus Cargill. And the question here is whether the Bureau of Alcohol, Tobacco and Firearms regulation of bump stocks is authorized by federal law. The National Firearms Act prohibited the transfer or possession of any new machine gun, and the ATF interpreted machine gun to include bump stocks, which are devices designed and intended to permit users to convert a semiautomatic rifle so that the rifle can be fired continuously with a single pull, the trigger discharging potentially hundreds of bullets per minute. Perfect for a mass shooting. And I guarantee the major question doctrine will make a surprise appearance, maybe not even a surprise appearance here.


Leah Litman Oh, yeah, for sure. Right. Chevron, right. Kill Chevron. Major questions, Right. Fever dreams against the administrative state coupled with guns. It’s just like a little bit too much to spark joy.


Melissa Murray The Venn diagram is strong here.


Leah Litman Yeah.




Kate Shaw So let’s briefly cover the two other cases the court heard last week, and then we will turn to some court culture. The first of those cases was Department of Agriculture, Rural Development, Rural Housing Service versus KURTZ, which is a case about whether the United States has waived its sovereign immunity under the Fair Credit Reporting Act. Sovereign immunity is the idea that governments like the United States or state governments are generally immune from lawsuits without their consent. The question here is whether the U.S. consented to be sued in lawsuits brought under the Fair Credit Reporting Act. The justices seemed to be trending in favor of saying the government could not be sued, and that might produce a strange bedfellows line up because the Democratic appointees and Justice Gorsuch, those justices seemed to think that actually lawsuits could be brought. The government had waived its immunity. So maybe you do have Gorsuch and the Democratic appointees in dissent, but we will see. But Gorsuch, at least on this, I think, was kind of exemplified in this clip where he somewhat uncharacteristically actually really uncharacteristically deferred to another justice. So let’s play that exchange here.


Clip And there may be other provisions in which it’s more narrowly applied here. But why does that pertain to L.A. is my question. So I’m going to see where you are. Let’s get the statute before this is still. On the air. May I. Please? Utility air was a very special case in which the court decided that if you just plugged the definition in, the entire regulatory scheme would collapse. So the first part of the court’s decision. So all I’m saying is that that’s, you know, nowhere near this case. I mean, I understand that the government likes sovereign immunity and the waivers of sovereign immunity are, you know, not all that common. But this is not a utility air scheme where essentially the court found that it was inconsistent with the entire rest of the statutory scheme. Recognizing a cause of action here is not inconsistent with the entire rest of the statutory scheme. I’m sorry about that. Well, no, no, I appreciate that. And that’s that’s my question, too. So, please.


Melissa Murray There is a humorous moment where the justices did not want to be deprived of their precious Syria item time. That’s the time when the justices get to take turns asking questions after the free for all portion of oral arguments where any of them can ask at any time. So let’s roll that clip.


Clip Thank you, Mr. Snyder.


Leah Litman We also got a nice window into the stare decisis is for suckers energy that continues to dominate this court.


Clip There are a lot of important decisions from the 1970s and the 1980s that use a method of statutory interpretation is probably not the one that we would use if those questions came before us today. You think we we should just disregard all those and all fair game? Are they all fair game? I think it’s open to certainly litigants to argue that. The Court The Statutory answer to that question has got to be no, right? Mr. Judge You mean we’re not going to throw out all our precedents because we’ve decided that there’s a better way to interpret statutes?


Kate Shaw I think there’s just like a lot to be written about this. You know what they’re going to do, what they’re talking about doing or what actually comes out in the writing in some of these statutory cases. Because, as you know, they love telling us they’re all textualist now. Well, I guess some of them have like repudiated that a little bit. Justice Kagan in particular. But there’s obviously a, you know, an avowed textualist majority on the court. But there are a lot of statutory cases out there where very, very different modes of interpretation were used. And I don’t know, are they really so disinterested in precedent? They’re just going to throw all of that out the window because, you know, it didn’t those cases did not sufficiently hew to the text of statute. I don’t know. But I do think there’s a sort of inter temporal statutory interpretation problem that keeps coming up in these oral arguments. And I don’t know if the court has yet decided how to address it.


Melissa Murray I’m guessing no. The court also heard oral argument and Rudisill versus McDonough, which is about the rules for veterans who obtain education benefits under two separate programs, the Montgomery benefits under the Montgomery GI Bill and the post-9-11 G.I. Bill. And basically it’s about what happens when someone is eligible for benefits under both programs. Do you have to first use the benefits under the less generous program first, or can you go immediately to the most generous benefits? So basically, like when you have two forms of insurance and who gets to tag in first, the generous insurance or the really meager insurance? It seems here that the court is going to say that the veterans are eligible for the more generous benefits and can use those more generous benefits first. But interestingly, the court did not have very kind words for the government’s argument here. So let’s hear this clip from the chief justice.


Clip So am I. I know there must be something wrong with the way, at least on this point, because it doesn’t make any sense. But. The reason that the petitioner here has this particular difficulty is that he served an additional tour of duty. And after 911, in addition to what he had served before 911. Now, if you have somebody who just joined up after 911 for the same period as the petitioner served, the petitioner is getting less fewer benefits than the person who only served one tour of duty for the same length. Because if he served just the post-9-11 for whatever three years, he would get three years. But because this petitioner had served additionally beyond his period of post-9-11, he gets he doesn’t get the full benefit of the post-9-11 benefits. So there must be something wrong there because that would that would not make any sense.


Melissa Murray And Justice Sotomayor.


Clip The only problem with that answer, it doesn’t really answer Justice Kagan’s question. Her hypothetical suggested, I think that it’s irrational to think that Congress would say, if you wait and take the one month, you’ll get 12. But if you decide to take the one, not take the one month and switch over immediately, that you’re going to lose those 12 months. That’s what’s basically, I think, the irrationality and it just seems utterly arbitrary.


Melissa Murray And the chief justice again.


Clip Well, but that still doesn’t make all that much sense because he’s getting those other benefits because he had an additional couple of additional tours of duty. So maybe, you know, he’s entitled to both of them. But because of this other provision there, he can’t get both at the same time. But it seems to me to be a pretty raw deal to say you’re going to lose, you’re entitled. If you hadn’t done anything other than the 911, you would be entitled to this. But because you served additional period of time, you don’t get the whole 911. You’ve got to exhaust this other less generous plan first.


Melissa Murray Thank you for your service, gentlemen and ladies.


Kate Shaw Okay. So should we move on to some court culture?


Leah Litman Yes, sure.


Kate Shaw We figured we would take a peek at what is going on in the Fifth Circuit, kind of in the light of the Rahimi argument. That was, you know, the biggest event last week. And we know we brought you a Fifth Circuit deep dive a few weeks back. But honestly, that circuit just does not seem to sleep because we already, just a few weeks later, have a lot we need to bring you up to speed on. So we’re going to talk about two cases that were argued in the Fifth Circuit just last week. One case the Fifth Circuit heard oral argument in was the contraception case, DNA versus Becerra. This is a case we have previously talked about. It’s Judge Kacsmaryk contraception case in which the court said that the Title ten program was unconstitutional because it violated parents rights, and particularly a regulation that allows minors access to contraception.


Melissa Murray The federal government said that the plaintiffs didn’t have standing since it wasn’t clear whether the plaintiffs children would seek to access contraception or use Title ten to do so. So that’s the standing argument and seems like a pretty sensible argument, but not for the Fifth Circuit. Judge Haines suggested that maybe the normal rules of standing don’t apply in parental rights context.


Clip Because the whole point is you don’t know what your kid’s going to do on something like this.


Melissa Murray When the government’s lawyer pointed out that the parent challenging the program didn’t identify his daughter’s age. The judge suggested that it doesn’t matter.


Clip Before they’re 18 more and likely they’re going to be old enough and in a position to get pregnant. They’re also going to be in a position where people are wanting to have sex with them. Okay.


Melissa Murray Whoa.


Leah Litman Yikes. Ugh.


Melissa Murray Okay. Very, very normal. Not at all.


Leah Litman And speaking of not very normal, we also got more than one invocation of Robert Bork since Robert Bork is apparently treated as governing legal authority in the Fifth Circuit. So Robert Bork was Ronald Reagan’s nominee for the Supreme Court. He was a judge on the D.C. Circuit and former solicitor general during the Nixon administration, during which he became acting attorney general after other officials refused to fire the special prosecutor investigating Nixon. But Bork was like, sure, I’ll do it. Bork had previously been an academic where he had criticized, among other things, Roe versus Wade and the Supreme Court’s decision in Griswold protecting the right to contraception and Marbury versus Madison and the Senate, you know, decided not to confirm him. And this is the guy the Fifth Circuit is invoking. So here’s the first indication.


Clip One of the major purposes of the Title ten program. And certainly that’s become very clear in the light of the most recent regulation is to make sure that adolescents receive. Services, including prescription contraceptives. And that their parents not be notified. That seems to me to be Judge Bork in 1982, sort of 1983, kind of sort of, I guess, speculated or thought that that might be the purpose. But now we know it is because of the new regulation.


Leah Litman Here’s the second.


Clip I mean, let’s put it this way. Here’s here’s what Judge Bork said in 1983.


Leah Litman And because good things come in threes, they did it a third time, though. We won’t play that. And the guy doing these invocations is Judge Kyle Duncan. And I guess, you know, we are on to late stage textualism or textualism now means discerning what Robert Bork thought the purpose of a statute was in 1982 or 1983, and then interpreting the statute in that light.


Kate Shaw It really is a sign of the times. You have conservative jurists disavowing Justice Scalia and embracing Robert Bork. I think that’s actually a hugely important data point.


Melissa Murray It’s like the fantasy SCOTUS, like the one where Robert Bork was chief justice.


Kate Shaw Yeah, yeah. I think that’s that’s, that’s the court The Fifth Circuit thinks that lives under and they’re just deciding cases as though that’s the state of the world. Okay, So we also wanted to play two clips of some of the judges summarizing the claim that Judge Kacsmaryk ruled for and that the Fifth Circuit is definitely open to ruling four. So here’s one.


Clip It’s my understanding periods can start pretty young, not five, but some. Even I think eight or nine year olds get their periods. So it’s not 15. Ten is pretty common. So it is not that old that these young girls need to be to be old enough to get pregnant. Should they have this interaction with this other guy that they’re trying to, again, get medicine, get advice. Deal with the fact that they had the sex and or dress that whatever it is. And he’s trying to avoid that pathway because once she’s gone and had sex with someone, she’s not a virgin when she gets married. And again, I’m not myself judging that. I’m simply saying he would on his religion. And I respect that.


Kate Shaw And here’s another.


Clip If she did receive contraceptives without my knowledge, that interferes in a dramatic way with my ability to parent because the child now has a means of engaging in sexual activity and avoiding certain consequences of it. And that.


Melissa Murray Are you there? God. It’s me, the Fifth Circuit. Like, why don’t. Why doesn’t anyone know how menstruation works?


Leah Litman Also, like, why don’t they know how consent works? Like if you are eight or nine, you cannot legally consent to sex if you are a minor, right? In some cases you cannot like or even if you’re a woman who just like has sex, right? You are not or shouldn’t be thought of as just being like, okay, like, and therefore you can become pregnant, right? Like that is not just like accepting the consequence of having sex.


Melissa Murray I just can’t get over just sort of the general like I heard a thing about periods once. Like, I mean, that’s just like, what? Just like, go ask a physician. Like, go to like. But that is the thing. They don’t trust experts anyway. The Fifth Circuit also heard oral argument in the EMTALA case, Texas versus Becerra. This is the case where the state of Texas is arguing that Health and Human Services guidance to hospitals under the Emergency Medical Treatment and Active Labor Act is illegal. That guidance says that Medicare funded hospitals must make available medication abortion if that is required to save a patient’s life or stabilize their health or care. And the federal government has said that Tala preempts Texas’s abortion ban to the extent it prohibits that kind of care. And of course, the state of Texas is like, I don’t think so, ma’am. I don’t think so. Nope, nope, nope. And of course, a district court in Texas invalidated that guidance. And that case is now being reviewed by the Fifth Circuit. And of course, the Fifth Circuit is like, well, Texas allows abortions to save the life of the pregnant person. So we’re done. We’ve covered EMTALA’s requirement that we stabilize care, done ten out of ten.


Kate Shaw But to be clear, that is not Texas Actually allowing abortions to protect the life or health of pregnant individuals is absolutely not happening on the ground. The federal government’s lawyer brought this up in the oral argument, and this is a topic that we’re going to be taking up at more length next week so stay tuned for that.


Melissa Murray These are just details, Kate. These are meaningless details. Everyone knows whats happening.


Leah Litman Women’s lives specifically. Those are the meaningless details,


Melissa Murray Details.


Kate Shaw Tiny stuff.


Leah Litman So during the EMTALA argument, we got some fetal personhood curious comments like this one seems.


Clip Out of the statute, you’re plucking something out of thin air and saying it’s in the statute. Not saying it’s not. I’m just saying you’ve got this language in the statute that actually addresses the stabilizing care that has to happen with a pregnant woman and it has to care for the unborn child.


Leah Litman And the federal government’s lawyer responded by saying, you know, the statute requires care for individuals and people and the fetus is not a person. But the challengers lawyer, you know, the lawyer challenging this guidance like in the guidance and requiring stabilizing care, you know, in the context of abortions, the challenges lawyer liken that to organ transplants and was like, well, until it doesn’t allow doctors to go out and take someone’s organ if a patient needs an organ transplant and that would stabilize them, which once again calls to mind fetal personhood, since it is equating fetuses with living, breathing people whose organs would be taken away. And again, this is happening like within two years of DOBBS.


Kate Shaw Yeah. The Fifth Circuit is, you know, is wants to get to actually enshrining fetal personhood in the Constitution very, very quickly. I don’t think the Supreme Court wants to go quite that fast, but I think the with the circuit is just gracing the wheels sort of related definitely related court culture to touch on. We have a development in the medication abortion case. This is the case in which Judge Matthew Kacsmaryk, who has already come up in this episode, ruled that mifepristone is essentially an unauthorized drug. The Fifth Circuit ruled that back somewhat, but did impose very serious limits on mifepristone. One of the drugs in the medication abortion protocol. So there is a petition pending in the Supreme Court from the federal government and also the drug manufacturer asking the court to review the Fifth Circuit opinion. And there is also a conditional cross petition pending that was filed by the anti-abortion doctors. And they basically tell the court it shouldn’t grant the cert petition, but that if it does grant cert, it should also grant their petition challenging the parts of the Fifth Circuit opinion that ruled against them, because obviously they do want to shoot the moon and see if they could get the Supreme Court to embrace the Kacsmaryk “no mifepristone for anyone” rule. So that’s essentially background. Now for the latest development. So a group of states have now filed a motion to intervene in the district court, and this could potentially delay the Supreme Court taking the case. The states are arguing that they have standing even if these individual plaintiff doctors and organizations don’t have standing, including for reasons like they have just learned that the residents are traveling out of state to access mifepristone elsewhere. And so they have a concrete stake in the court’s disposition of this mifepristone legality question. And as we’ve discussed. Easily. The individual plaintiffs standing arguments in this case are so atrocious that even this court might find that there is no standing. Which would mean the challenge can’t go forward, which would be very good news and definitely legally correct. But this development, I think, opens up the possibility that the Supreme Court could say the individual plaintiffs don’t have standing, but the district court of the Fifth Circuit could very quickly thereafter come back and say here, these states have standing to essentially bring the same claim. It’s also possible the Supreme Court will sit on this case until the district court acts on the motion to intervene. I am not sure what the sequencing will be, at least for now. Chris Stone remains available, so there are not short term implications for access. But it is an unbelievable mess in terms of sort of what the procedural future of this case and its trajectory looks like. It also, to my mind, I think opens up the possibility of real manipulation of timing with the 2024 presidential election in view. And that makes me was already nervous about that with this case. I’m sure John Roberts is thinking about it. And I think this move by the states only further empowers the court to control the timing.


Leah Litman So so let’s maybe unpack that just for a second. You know, because we had been expecting this case would make its way to the Supreme Court’s docket this year, which means there would be a decision by July 2024, i.e., before the presidential election. But let’s say the court hold on to this petition until the District Court acts on the motion to intervene That could push the case to next year, i.e. after the presidential election. And so the court would not be in a position of issuing right some highly problematic opinion about access to medication abortion with maybe some crazy separate writing, arguing that the Comstock Act also prohibits contraception right before a presidential election where voters could actually go to the polls and express like we want politicians who are not going to be appointing judges or justices who do these things. We want politicians who would actually protect reproductive rights and the possibility that the court would learn from. DOBBS Oh, right. Like we actually don’t want to do this stuff in the lead up to an election is, I think, really terrifying.


Melissa Murray It’s almost like the chief justice is like, I can’t control Sam and Clarence, but I can control time. Yes, I will. I will control this calendar. Like this is his one superpower, and he’s probably going to lean into it. But you know what, Chief Justice, we’re going to keep reminding people that what comes after the election is the same as what could have come before. They’re just putting it off anyway. It’s not just Marie Kondo who loves mess. The Supreme Court loves the mess, as Kate has suggested, and it also loves a messy cert docket. So we got some cert petitions in cases challenging bans on gender affirming care. And the United States has intervened and filed a brief urging the court to take the case. So yikes.


Leah Litman We did have some good news. So there were elections and Ohio passed issue one, enshrining protections for reproductive rights in the state’s constitution via direct democracy. This was, we should say, despite the concerted efforts of the Republican Party, the state Republican Party, to throttle the processes of direct democracy. You know, first they called a special election to try and change the threshold for amending the Ohio Constitution. That failed. Then they changed the actual ballot question so that instead of the text of the amendment, it contained, you know, what people described as like an incredibly hostile description of the amendment containing the word unborn child and referencing only abortion, when in fact the amendment covered a range of reproductive decisions like contraception and fertility treatments. But guess what? None of those efforts worked. The amendment passed anyways.


Melissa Murray As a great justice, Samuel Alito once said, women are not without electoral or political power. Thank you, Sam. You are right. And you have literally fueled the rage of an entire generation. You, sir, hats off to you. And yet Americans United for Life responded with a statement saying that, quote, The results in Ohio are a reminder of the moral danger of majoritarianism, of allowing the strong to victimize the weak. So too much democracy is a bad thing, especially when women are doing the democracy thing. Do their husbands know they’re voting? Let’s find out.


Leah Litman But speaking of, you know, democracy bad. The Ohio House is reportedly considering a proposal to eliminate courts jurisdiction over cases concerning issue one in Ohio, which would bake that new state constitutional protection for reproductive rights potentially unenforceable in court. It’s like, you know, you.


Melissa Murray Let’s put this back to the democratic process.


Leah Litman It will. But again, like you have like small segment of progressives and the left like urging the left to consider jurisdiction stripping, given how hostile the federal courts are. And it’s like, you know, conservatives, Republicans lose one issue via direct democracy. And it’s like, okay, we’re going to go nuclear right on the courts on this issue.


Kate Shaw Other election results to highlight Pennsylvania voters selected the Democratic Justice for the open states of. Courtside. They also flipped the Pennsylvania Court of Appeals to make that court more progressive. So these were races we were watching really closely. Those are great results.


Melissa Murray Also, Andy Beshear in Kentucky beating Daniel Cameron. And we talked about Daniel Cameron last year because there was a major case that Daniel Cameron as A.G. of Kentucky, had brought regarding abortion and just really glad that he is not going to be in a position to be the governor of Kentucky.


Kate Shaw That’s right. And if we are listing other highlights from the night both houses of Virginia flipped blue, I don’t think people were totally sure how either of those houses was going to end up. And both turning blue is a very, very big deal. So those nights are scary. But occasionally, like there’s good news and this was one of them.


Leah Litman But they are also a reminder that if you want good news, you should start doing things now. And I have to say, like in the lead up to this election, like I was feeling really nervous, you know, like Michigan, we had the reproductive rights ballot initiative on the ballot last year, and I felt like, okay, like I kind of knew and had some sense for like what I could do. I could go like doorknocking and like talk to people about the ballot initiative. But the reality is, is like there are things to do every year and like, you have to figure out what those things are and it’s probably time to start doing them now.


Melissa Murray We’re going to stay on this hustle forever or else. Yes, that’s how they win. We just have to keep we can’t get tired. It’s it’s got it. We’ve got to do the same thing that Justices Jackson, Kagan and Sotomayor are doing, taking turns, letting one lady stay hydrated while the other two do the work. And that’s what we’re doing here on Strict Scrutiny.


Leah Litman Yep.


Kate Shaw So I think we’ll leave it there. The court is going to be off next week, resting up for whatever fresh hell they have planned for the December sittings. So we’re going to be doing extra hydration and calisthenics. So we are prepared for the December sitting, but we do have a special episode in store for you next week that is about a case or really a couple of cases that are not in the Supreme Court, but they are related to jobs and they are really, really important. So stay tuned for that.




Leah Litman Strict Scrutiny is a Crooked Media production. Hosted and executive produced by me, Leah Litman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Our associate producer is Ashley Mizuho. Audio Support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production Support from Madeleine Heringer and Ari Schwartz. 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. It really helps.