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May 15, 2023
Strict Scrutiny
You Can Crime If You Want To

In This Episode

Melissa, Kate, and Leah cover the gift that keeps on giving– a.k.a. billionaire Harlan Crow, who can’t seem to stop giving undisclosed gifts to Justice Clarence Thomas. They continue the discussion on the deluge of stories about questionable ethics at the Supreme Court following a report that said Leonard Leo arranged for Ginni Thomas to be paid tens of thousands of dollars for “consulting work”. The cherry on top? Two recent Supreme Court opinions about political corruption and fraud. Finally, they are joined by John Mills, an attorney for Richard Glossip, who was sentenced to death for a crime for which there is powerful evidence he did not commit.

  • Listen to an interview with Justin Elliott, one of the ProPublica reporters who broke the news about Harlan Crow and Justice Thomas.
  • The hosts covered the arguments of the opinions for Percoco v. US and Ciminelli v. US in this episode.
  • In this episode, the hosts discussed the arguments for Santos-Zacaria v. Garland, another one of the opinions discussed.
  • This past episode discusses the arguments for National Pork Producers Council v. Ross, an opinion the hosts talk about this week.
  • Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events.






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 where your hosts. I’m Melissa Murray.


Kate Shaw I’m Kate Shaw.


Leah Litman And I’m Leah Litman.


Melissa Murray And we are not twins.


Leah Litman No, we are. We are different people. Even though our voices sound similar.


Melissa Murray I don’t think they do.


Leah Litman I don’t think they do.


Kate Shaw I don’t either.


Leah Litman But I’m just reporting things people say on the Internet and elsewhere. Okay. So as always, we have a jam packed show for you. We are going to start with some news up top before we move on to opinion recaps since the court is actually deciding opinions and then at the end of the show, we will touch on some additional news that has developed about a case we have been following thus far and could be playing out over the next Supreme Court term as well. So first up is live news.


Kate Shaw All right, because the Supreme Court beat stops for no woman. We have lots of breaking news since we recorded our last episode.


Melissa Murray No mention of Ginni Thomas, though, right? Do not mention Ginni Thomas anywhere.


Kate Shaw No mention, of course.


Leah Litman Okay. We have some updates about the finances behind Ginni’s lobbying on behalf of conservative advocacy organizations that have business before the court, by which we mean gifts that were given to Ginni for reasons. We recorded an episode of Topper for the last listener grabbing episode, and literally within 24 hours there were two more ethics scandals and then a third shortly thereafter. It’s almost like the court is completely broken and the justices behave as if they are above the law.


Kate Shaw It can be really hard to keep all of these ethics scandals straight. So we are going to proceed in a loose chronological order of the ethics scandals as they unfolded since we recorded our last episode. So we’re going to begin with a return to our old friend, though not the kind of friend who invites us on his private jet, Harlan Crow. So listeners, you may remember that when Justin Elliott from ProPublica came on the April 17th show to discuss ProPublica as initial reporting about the luxury travel and gifts that Harlan Crow had lavished on Clarence and Ginni Thomas, we asked Justin if there was another shoe to drop, and he basically said that, yeah, they were actively reporting. So let’s play that clip here.


Clip It’s definitely possible. I mean, we’re my two colleagues and I are actively reporting. We’ve gotten some really interesting responses and tips in response to these stories. And I should say, I mean, we genuinely are interested in any Supreme Court justice on either side. I welcome that.


Melissa Murray Indeed you were, sir, because on May 4th, ProPublica broke the story that Harlan Crow paid for at least two years of private boarding school tuition for Mark Martin, who is a grandnephew of Justice Thomas, and who Justice Thomas and Ginni Thomas had taken in and were raising like a son. And I don’t know about you, but I used to love that book, The Love Languages. Did you ever read this book about, well, five love languages.


Leah Litman Yeah. Yeah.


Melissa Murray Oh, okay. Okay. Like words of affirmation, acts of service gifts. I think Justice Thomas’s love language is like private school tuition. Maybe just cold, hard cash.


Kate Shaw Or is that Crow’s love language right?


Leah Litman Yeah, exactly.


Melissa Murray Both ways it works both ways, I think. I think it works both ways. But yeah, so, again, private school tuition is not cheap. Ask me how I know and someone else is paying for it. I love this for him.


Kate Shaw Well, we know from the literal receipts that ProPublica has managed to get its hands on that Crow paid for at least a year at The Hidden Lake Academy, which is a private boarding school in Georgia, where the tuition was more than $6,000 a month. And we also know that Crow paid for at least one year’s tuition at the Randolph Macon Academy in Virginia, which is Crow’s alma mater. Now, Crow was actually not the first benefactor who had assisted Thomas with the tuition expenses for his grand nephew. In fact, years earlier, Thomas received a $5,000 gift for his grandnephews tuition from another friend. Me and his friends really like to give.


Leah Litman I was just about to say, like I feel like I need some new friends because I literally need at least $5,000, if not more, to buy some additional Taylor Swift tickets.


Kate Shaw Taylor Swift tickets.


Leah Litman To the Cinncinato show. Friends, Where are you? I’m right here. You know how to contact me.


Melissa Murray Well, I mean, I’m side eyeing both of you too. Like you guys are really shit friends if this is.


Kate Shaw We have given you no multi-thousand dollar gifts. That’s true. So, yeah, the earlier gift was different from the crow tuition gifts in one important respect, which is that Thomas disclosed that gift. He reported it. So he was definitely familiar with the concept of disclosing tuition assistance, but he strikingly conspicuously did not disclose Crow’s assistance.


Melissa Murray Harlan Crow responded to ProPublica’s questions with this statement. Quote, Harlan Crow has long been passionate about the importance of quality education and giving back to those less fortunate, especially at risk youth. Crow and his wife have, quote unquote, supported many young Americans at a variety of schools, including his alma mater. I mean, the man’s love language is tuition. But it’s his passion and he might be mad about that, right about that. I love how Mark Martin wasn’t at risk rescuing. Exactly.


Leah Litman Yes. So Thomas’ defenders, by which we mean one of the guys depicted in the pastoral painting together with Leonard, Leo, Clarence Thomas and Harlan Crow. That’s Mark Paletta. For those of you following along at home, Paletta said this didn’t have to be disclosed because disclosure laws only require you to disclose gifts to dependents which include children, but not grand nephews. Suck it libs. On the other hand journalism still has some textual healing. On the other hand, some people suggested that the tuition assistance was maybe also a gift to Clarence Thomas, not just his nephew, and therefore had to be reported. And in response to Plato’s point, ProPublica’s article suggests that Thomas was his grand nephew’s legal guardian at the time, which could also be relevant.


Melissa Murray But whether or not it had to be reported, this is what happened. A Republican megadonor who is active in Republican causes, paid for the tuition of a Supreme Court justices dependent who the justice was raising like a son in loco parents like that’s a pretty big deal sidebar, at least for me. This is really interesting because there’s a nontrivial chance that the court in a few weeks is going to dismantle affirmative action. And there is also a very non-trivial chance that Justice Thomas will be the one to write the majority opinion that will do so. And there is an extremely non-trivial chance that when Justice Thomas writes such an opinion, he will likely resume his habit of talking about affirmative action like it’s an undeserved form of government largesse. All while he seems to be receiving from a wealthy friend private largesse intended to give his grandnephew an educational leg up. So just want to point that out.


Leah Litman That’s just because his friend is very passionate about education.


Kate Shaw And he thinks it’s constitutionally unproblematic for each and every one of us to get a billionaire friend to help subsidize our government through education.


Melissa Murray Yeah, that’s fine. Small government and big billionaires put that on a T-shirt. The ProPublica story also included some details gleaned from Mark Martin himself, who often accompanied Clarence and Ginni Thomas when they were guests of Harlan Crow on these lavish trips. And Mark Martin disclosed to ProPublica that some of these trips included travel to Russia and to the Baltics, where there was helicopter touring. And also in attendance were individuals like the head of the American Enterprise Institute, who was a guest of Harland Kroes, during one of these jaunts. So, oh, to be a fly on the wall, but so great for Mark Martin to have his horizons expanded with this luxury travel, this at risk youth.


Kate Shaw So in the wake actually not of this last round of ProPublica reporting, but the earlier ProPublica revelations, Senator Ron Wyden and who is the chair of the Senate Finance Committee, asked Crow to report to the committee all gifts of more than $425 that Crow has bestowed on SCOTUS justices. Well, last week, Crow responded in a letter from his lawyers that I think basically just told Senator Widen to shove it. Leah Is that like a fair TLDR of the response?


Leah Litman Yeah. You know, like Crow’s lawyers took a page from the Chief Justice’s response to Durbin and just said, Dueces. See? Nope. The letter is.


Melissa Murray  I’m sorry, I can’t. Don’t hate me.


Leah Litman Right? Yeah. The Burger post it, but in like four page form. The letter is yet another fuck you to the concept of congressional oversight over corruption and ethics at the court. It has all kinds of crazy in it. One thing I wanted to highlight in particular is that it suggests the request to Harlan Crow, quote, implicate the separation of powers and require a heightened showing. And they cite the Trump subpoena case, Trump versus Mazars as support for this. To which I want you to ask, are you saying that Harlan Crow is exercising government power, the judicial power of the United States, and therefore requests of Harlan Crow are effectively requests to the federal courts? Because I’m not sure that’s the vibe you want to convey. Maybe I’m missing something. Or perhaps it’s just that Crow’s relationship with Thomas is so deep, the two are so connected that a subpoena to Crow is effectively one to Thomas. I’m just not sure.


Melissa Murray I think Roy Wood had it right. Maybe Justice Thomas is an NFT.


Leah Litman That Roy Wood speech.


Melissa Murray That was great.


Leah Litman At the White House Correspondents Dinner if you haven’t watched it to do so immediately.


Melissa Murray So funny


Leah Litman He talks about the Supreme Court and Sandoval. Basically, that speech is my personality in a nutshell.


Melissa Murray Can we play a clip of that? It was so good.


Clip You two have come up with a new thing about space rocketry, Both Twitter. This man bought a Supreme Court justice. Do you understand how rich you have to be to buy Supreme? A black one on top of that. There’s only one stock. And Harlan Crow owns half the inventory. We can all. See Clarence Thomas, but he belongs to billionaire Harlan Crow, and that’s what an NFT is.


Melissa Murray Like I finally learned what an NFT was. Now, because we are a fair and balanced podcast that is committed, deeply committed to airing both sides of an issue, I mean, we’re basically like the Federalist Society, and we regularly engage with criticizing Democratic appointees when they to engage in financial transactions that raise the specter of corruption. So with that in mind, it behooves us to note that one time Elena Kagan’s high school classmates from Hunter College High School decided to send her some bagels and lox from Russ and Daughters, which is a very famous New York deli to cheer her up for having to work with. Well, I mean, basically a band of goblins. And they decided to send her some lox and bagel, some whitefish from Russ and daughters. And do you know what, Elena bagel. Do you know what Elena Kagan did with this lavish would be gift of bagels, lox and whitefish spread. She told these prospective gift givers to hold off to exercise restraint because such a priceless gift of whitefish might raise the appearance of impropriety. That is a true icon.


Leah Litman Let’s just take stock of the current ethics scandals at the court. We have some number of unclear scandals at this point.


Melissa Murray Private get gate. Tuition gate.


Leah Litman Right.


Melissa Murray Property transaction gate.


Leah Litman Right. Again.


Melissa Murray Thomas- bags of money- Gate and then Lox Gate.


Leah Litman Right. Well, the first few you name do involve the Republican appointees. And then the Democratic appointees like Elena Beghal have beguiled in this competition. I’m sorry I had to make that joke. But seriously, the woman returned bagels and lox that were sent to her, and I quote, as a sign of support for the nightmare of having to go to work.


Melissa Murray I don’t think she got them. I think they told her they were sending and she was like, No, no, don’t do it.


Leah Litman Yeah, Well, okay. So then she stopped these bagels and lox from ever being sent. But I’m going to read that quote from Hunter College alum Sarah Shulman, who wanted to send her this stuff as a sign of support for the nightmare of having to go to work with Kavanaugh and Amy Coney Barrett and Neil Gorsuch.


Melissa Murray That was a quote from her. She said that. That was not us.


Leah Litman I know. Love it. Love the energy. Speaking of my personality.


Melissa Murray And it’s not just lox bagel gate that’s really getting us here. We have to go back to Ginni Thomas. I will not stand for Ginni Thomas Erasure. It is summer and, well, it’s not really summer, but it feels like summer. It’s getting hot again. And Ginni, Tonics are back on the cocktail menu, which means Leonard Leo is speaking her love language. So let’s talk about that, too.


Kate Shaw I’m not sure again, if this is Ginni’s love language or Leos love language, but basically it might be both in addition to so Dahlia Lithwick and Mark Joseph Stern, it’s late, have coined the phrase quid pro quo to refer to and grow in their coverage of the scandal. We want to try out a coinage which is not quite as good as quid pro quo, but decent, which is a quid pro Leo, which I think sort of words anyway. Leo is, of course, Leonard Leo, longtime leader of the Federalist Society, and also since we last recorded, The Washington Post has reported on documents revealing that Leonard Leo, also of the famed pastoral painting that Leo was referencing earlier, involving Mark Paoletta, that Leonard Leo arranged for Ginni Thomas to be paid tens of thousands of dollars for consulting work done for the nonprofit group the Judicial Education Project, which also, by the way, files briefs in the Supreme Court.


Leah Litman So this story is going to sound a little bit like Conservative or MAGA Mad Libs. So just bear with me for a second. But the Post reported that Leonard Leo told drum roll please Kellyanne. Conway, that he wanted to, quote, give. Ginni, quote, another. $25,000. As friends do.


Melissa Murray It’s the another that gets me. The another.


Leah Litman Yeah, right. Yeah. As friends do reference is, of course, about the other ethics scandal, the Harlan Crow one in this current one, Leonard Leo directed that there should be, quote, no mention of Ginni. Of course, when it comes to these payments, which is something that very innocent people say when doing very innocent things. You know, basically the bad apple was saying you do not, under any circumstances take notes on this motherfucking criminal conspiracy.


Melissa Murray Leonard Leo would also like you to know that while he’s siphoning money to Ginni Thomas without putting her name on it, because that would not be cool. The reason he’s not putting her name on any of this is because the Liberals made him do it. So he had this to say about his decision to instruct Kellyanne Conway to keep Ginni’s name off the payments. He said, knowing how disrespectful, malicious and gossipy people. Can be. I’ve always tried to protect the privacy of Justice Thomas and Judy. I feel so seen. Disrespectful, malicious and gossipy.


Kate Shaw Do you think he’s the one writing the mean reviews of our podcast?


Melissa Murray I’m 100% sure.


Leah Litman He’s doling out $25,000 to Ginni to write them. Right. The one who called us Harpy Lib chicks and like an abortion of a podcast. That was Ginni. And she got tens of thousands of dollars for that.


Kate Shaw I think we see the unmistakable pattern of the same person on both of those writings. Absolutely.


Melissa Murray You can talk to us in your love language, Leonard. It doesn’t have to be all mean tweet. Cool.


Kate Shaw So back to the reporting on the scandal. This particular scandal is getting harder to keep track, but we’re talking about Leo to Conway to jail with no trace. Ideally.


Melissa Murray With the candelabra. In the library. At Harlan Crow’s Adirondack Resort.


Kate Shaw Exactly. Maybe. I don’t know, though. Now we’re now emerging the scandals. I’m not sure, but it’s possible.


Melissa Murray That’s where I think the scandals are already merged. Kate, I don’t know where you’re coming from, but.


Kate Shaw They might be as though specifically to the Ginni payments, The Post reports that this group, the Judicial Education Project, despite being an obvious financial juggernaut, especially in recent years. So the Post reports that it had revenue in 2020, one of over $100 million, that this entity has only a few employees and uses literally a UPS store as its address.


Melissa Murray As you do.


Kate Shaw How you do when you running a very legit and not at all shady operation obviously, but.


Leah Litman This is good news. This means that Leonard Leo can give me gifts of several tens of thousands of dollars to attend the Taylor concert. They’ve got the cash to spare, but, you know, taking a step back, like if you told someone that the guy who hand-picked, hand-picked three Supreme Court justices secretly funneled several tens of thousands of dollars in dark money to the wife of another Supreme Court justice for their work on behalf of an organization with business before the court, business that included dismantling multiracial democracy, that plot would get dismissed as unrealistic, overly conspiratorial wingnut delusions. And yet here we are.


Melissa Murray Let’s stay on this Leonard Leo beat for a second longer. We previously discussed the deal that Leonard Leo made with billionaire Megadonor Barr said, I don’t even know if I’m saying that because I don’t hang around with billionaire mega-donors, so I just don’t know. But it’s spelled b a r r e s e i d -barreside.


Leah Litman If he wants us to pronounce it correctly. Again, tens of thousands of dollars in Taylor Swift tickets. My DMS are open.


Melissa Murray Leave them in an unmarked bag. Don’t put our names on it because we don’t want any malicious, gossipy, disrespectful people getting in our business. Anyway. The pair structured a series of transactions that resulted in $1.6 billion being given to a nonprofit that Leo ran the Marble Freedom Trust. The transaction reportedly not only invigorated the coffers of the Marble Freedom Trust, it also reportedly allowed Syed to avoid something like $400 million in taxes. So that’s truly a quid pro quo, like that’s what friends do for each other. Politico now has reported how Leo and Side met, which is to say that they were introduced by Eugene Meyer, the longtime director of the Federalist Society. And at the time that this introduction was made, Leonard Leo was the executive vice president of Fed Stock, and to which I say not bad for a debating society. I wish the Palm Beach Catholic forensics fleet, which I belonged back in the day, had also been as good on the networking tip as the Federalist Society and ostensible debating society has been.


Leah Litman Yeah, you know, I also did high school debate. I’m still waiting for those several hundreds of dollars in Taylor Swift tickets. You know, again, I’m here. So in light of these scandals and others will touch upon briefly data for progress released some updated polling on people’s views about ethics, regulation and the court, some high level takeaways. When asked whether people support proposed legislation requiring the Supreme Court to adopt a code of ethics, 77% of people support that. Only 15% oppose. And when asked whether Thomas’s sale of property to Crow’s company and failure to disclose it is ethical or unethical, they said 70% unethical, 18% ethical. That’s Mark Pale at a voting a few times and 12% didn’t know.


Melissa Murray That’s the same numbers for abortion and for gun control. So real interesting democracy. Justice Alito. Democracy.


Kate Shaw I’m really excited for him to accuse us of driving his poll numbers down the next time he decides to take to the interview circuit.


Melissa Murray We have uteri. Will he even know we’re here?


Kate Shaw Maybe not. Maybe not.


Melissa Murray I just got on the server and Steve Vladeck.


Kate Shaw That’s right. Okay. So the Senate Judiciary Committee recently held a hearing in response to all of, you know, gestures this and we unfortunately don’t have bandwidth to cover that hearing in depth. But we did want to highlight this exchange between Senator Jon Ossoff of Georgia and the Republican witness, former judge and Attorney General Michael Mukasey, during which the former judge and Bush administration official said he is not so sure he would have refused private jet trips and free vacations from billionaire friends. So let’s play that clip here.


Clip As a judge. Is it fair to say that you most likely would have declined an offer of foreign travel worth hundreds of thousands of dollars because quite reasonably, you would have had the concern that public disclosure of such travel could have undermined public confidence in the impartiality of your judgment, simply because it amounted to if somebody took me I mean, if I were a district judge and somebody wanted to fly me on his private plane on a vacation with his family and I were friendly with that person, would I have refused and endangered the friendship? I’m not sure that I would have. Well.


Melissa Murray I appreciate his honesty. I appreciate it.


Kate Shaw You spending it in such a positive light. I have to say. In all seriousness, I really love Jon Ossoff. I thought he was going to.


Leah Litman You and every. Jewish mother in the United States. C’mon.


Kate Shaw But I feel like it was the mothers. The younger generation has sort of come around now. He’s just great. He’s been great. Yeah. And he was great and kind of a scene stealer at a couple of points during the J confirmation hearings. And he was just really good in this exchange. Last good was the other participant in the conversation. I mean, I thought it was a shocking answer, but I guess this kind of comes back to something that we have now highlighted a couple of times on this episode, which is I think we actually are all working with real different understandings of friendship. And maybe three of us just need to update our outdated notions of of the really the kind of the core features of friendship.


Leah Litman When updated, I’m waiting for those bags of cash.


Melissa Murray Again, I’m just compare this to Justice Thomas in that four character documentary where he’s like, I would rather be in a Wal-Mart parking lot than the beach because I’m a real person and I’m from real people stock. And that’s what I like. I feel like at least Michael Mukasey was like. Would I rather be on a private jet than in an RV parking lot at Wal-Mart? Hells, yeah, I applaud that, because me too. I don’t want to be in a parking lot. Nobody does.


Kate Shaw It turns out Thomas doesn’t either.


Melissa Murray Just tell me that. I mean, like, I knew, but like, you don’t to lie to my face. Anyway.


Leah Litman So moving on in the ethics scandals slash appearances of corruption, we wanted to briefly touch on a New York Times story by Joe Becker and Steve Eder about the Antonin Scalia Law School, formerly known as the Antonin Scalia School of Law, which was formerly known as George Mason. The story describes a coordinated effort to build relationships with Republicans, Supreme Court justices to enhance the institutional capital of the school. And there was one line from the story I wanted to quote Just because it’s so good and the documents show how Scalia law has offered the justices a safe space. In a polarized Washington, an academic cocoon filled with friends and former clerks where their legal views are celebrated, they are given top pay and treated to teaching trips abroad, and their personal needs are anticipated from lunch orders to, in Justice Gorsuch’s case, house hunting.


Melissa Murray I want that for me, too. Doesn’t it sound cozy? Does this sound fun and cozy?


Leah Litman You know, again, in addition to updating our notions of friendship, I think we will need to update our notions about what it means to teach and be an academic as this story will reveal.


Melissa Murray The story describes the school’s renaming from George Mason, a founding father, if you will, to Antonin Scalia School of Law, a new kind of founding father. The abbreviation for this new renaming happens to be asshole law.


Leah Litman A-ss-o-l


Melissa Murray I might have thought about that earlier, but whatever. They’ve since changed things around with the acronym to account for this. But again, the renaming was the result of a $30 million gift brokered by Wait for It Leonard Leo that included $10 million from the Koch network for which the school agreed to form a center for the study of the Administrative State and a liberty and law center.


Kate Shaw So by 2019, the law school had hired Gorsuch, Kavanaugh and Thomas, and for teaching summer courses that are about two weeks ish. Justices Gorsuch and Karl looked.


Melissa Murray Like a vacation. They’re like vacation length courses. Is that right?


Leah Litman Almost.


Kate Shaw Except they seem to coincidentally align with the duration of an ordinary vacation. But the kind of vacation for which you are paid handsomely. And so for each of these two week vacations, each of the justices made salaries that approach the legal cap on certain outside income for justices. So roughly $30,000. These programs have sent Gorsuch to Iceland and Italy. Kavanaugh To the UK. When the law school was recruiting Gorsuch to take one of these vacations in 2017, it asked him to help choose the Italian city where he would teach a seminar on, obviously, the separation of powers because you have to go to Italy to teach that seminar. The Times described a memo from the school that offered Gorsuch a choice between three cities.


Melissa Murray Wait, wait. What were the cities like? Was it Venice?


Kate Shaw It was Venice, Padua.


Melissa Murray And Bologna.


Kate Shaw And bologna. And bologna. So he picked Padua. I don’t know. I would have read Venice personally. But. I mean, you can’t go wrong. And the school told him his teaching responsibilities would just include mornings, which would leave him afternoons for trips to which he responded by email. Fantastico.


Melissa Murray Fantastico.


Leah Litman That is now mandatory reading. Every time we quote a Neil Gorsuch line on this podcast, oh, one of us has to erupt with fantastic. Oh, okay. So get ready. Get ready, listeners. Okay, so it appears that Justices Gorsuch, Kavanaugh and Thomas use employees in their judicial chambers to coordinate these outside academic duties, even though there is a judicial advisory opinion which the justices say they voluntarily follow. Wing that says staff members should not help, quote, in performing activities for which extra compensation is to be received. And yet, Justice Kavanaugh’s staff seem to work extra hard to get him extra compensation because they asked where his paycheck was and when he would be getting a raise.


Melissa Murray Bitch, better have my money. Pay me what you owe me.


Kate Shaw Very thirsty sounding.


Melissa Murray Parched. Very parched.


Kate Shaw But obviously, out of our relentless commitment to fairness, we are going to report the Democratic appointed justices have participated in some scholarly events. The piece notes that Kagan and Sotomayor have been on panels. And I will say just to head off any future scandals. I, too, once did a panel there.


Leah Litman Not in Italy to be sure.


Kate Shaw And definitely in D.C. So, you know, they have invited me to Italy and I can’t quite figure out why. But but the it turns out Kagan and I don’t care. They came as a panels were not in Italy either. These are DC panels. So I am beginning to see who gets what kinds of invitations there. Okay. All right.


Melissa Murray I hope Kagan and Sotomayor are beginning to see to why. I don’t remember when Linda Evangelista’s like, I don’t get out of bed for less than 10,000 a day total. Like I don’t get out of bed unless we’re getting on a cell and going somewhere.


Leah Litman Unless you give me $30,000 to go to Italy.


Melissa Murray It’s like sell it in New York, At least get them out.


Kate Shaw There are others who are commanding much like a large.


Melissa Murray I mean, I hope they’re clocking that.


Kate Shaw Kagan, though, appeared, it seems likely unwittingly, in what appeared to have been a multiday fundraising bonanza for the school directed at conservative donors. Like, I got to believe, she did not knowingly sign up for that bonanza. And I got to believe she’s not thrilled to learn about it.


Melissa Murray So can I just say something about that? Like when I was interim dean at Berkeley, we had an event with Justice Sotomayor. And, you know, it was like a big thing for the whole campus. And lots of people came. And then afterwards, I wanted to organize a dinner with like faculty, with the justice and whatever. And her office was just like there can absolutely be no fundraising component to this at all. Like, no, you know, no whales, no prospective donors, nothing like that. And they were just so adamant about it. And I just thought this was like pro forma, like you just could not do this. And everybody knew that.


Leah Litman Fantastico




Leah Litman So maybe now we go on to opinion recaps. Since the court managed to issue some opinions around these trips to Italy, Iceland, United Kingdom, and Lord knows where else. So we’ll start with covering the opinions that are kind of related to the news we have been covering, namely political corruption and fraud, and then briefly discuss the others as well. So the court issued two essentially unanimous opinions that significantly narrowed the reach of federal public corruption statutes. The first case, Percoco, involved a defendant who solicited a quid pro quo exchange along the lines of, You give me some money and I got the governor to do something for you. While the defendant was briefly not in the governor’s office or he had banned but was on the governor’s reelection campaign and plan to later go back into office. The second case was Simonelli, which involved a group of defendants who participated in a system that rigged how bids for government contracts were awarded, basically ensuring that the defendants companies would be awarded the contract there. The court rejected the idea that there could be fraud when an individual deprived others of the right to control their property by withholding valuable economic information. We’ll break these cases down. But just to start at a very high level of generality, it’s worth stepping back to think about how much the Supreme Court has narrowed the reach of federal law targeting public corruption. This has been going on for a long time, but it’s hard to miss the significance of the court further narrowing laws against corruption at the very moment that we are seeing much needed attention on public corruption and influence and access campaigns at the Supreme Court.


Melissa Murray Kate has written a lot about this, too, so I just want to call out Kate’s writing on one of her articles. Partizan Creep is forthcoming in the Northwestern Law Review, and it talks a lot about this. But we’ve been talking about this since our first season with Bridgegate. Governor Chris Christie shutting down the George Washington Bridge and the courts narrowing of what corruption is and making it much harder to prosecute corruption. And again, I think you’re right, Laura and I loved your tweet the other day. Really interesting that they’re waiting and not really embarrassed at all tweeting in this fashion, given everything that’s going on.


Kate Shaw No. And despite, as you said, more so this is there is a line of cases that I read about some in this partizanship free paper, and they weirdly kind of don’t cite one another. There are a lot of them are narrowing, like really narrowing different parts of the federal criminal code and sort of pretending that they’re not part of some larger unified project, but they clearly are. And this is no exception. I think maybe the Thomas there’s a concurrence it’s like to Kelly the the Bridgegate case but there’s a lot of cases that aren’t cited that I think are quite germane. But so let’s let’s maybe start by breaking down Percoco and Simonelli and if we can talk a little bit more about sort of the broader themes in the two cases, But as Liam mentioned, as to Percoco, the scheme here involved a top aide to New York Governor Cuomo, Joseph Percoco, who had this brief period off of the governor’s staff just to run the governor’s reelection campaign. And during that brief period, he took tens of thousands of dollars from a developer who was trying to get favorable treatment from a state agency. After getting that payment, Percoco made a call to the agency. Low and behold, the agency dropped the requirement. It had actually been this labor peace requirement that it initially imposed on entities that wanted to receive certain state funding. Three days later, after brokering this deal, Percoco returns to the governor’s staff. And I mean, all of this sounds really corrupt. He’s being paid in order to leverage his influence with government officials. He does that the payoff or gets the benefit, and Percoco immediately returns to the governor’s staff and the prosecutors thought this was clearly corrupt. He was convicted by a jury of honest services fraud, the Second Circuit affirmed. But actually, according to the unanimous court here, everyone else was wrong. And our intuitions about this were wrong. This conduct was fine. And this is an Alito opinion. And I am curious if you guys agree with this assessment, but it really had to be something of the flavor of The Wall Street Journal interview, quote, interview that Alito gave, blaming everyone but the court for the court’s cratering public approval.


Melissa Murray Because it was defensive and grievance laced.


Kate Shaw Yeah, it basically was it was like, look what all of you made us do. We have to reverse this conviction. We have no other choice.


Melissa Murray This is interesting. I thought it was interesting that this is one of those rare opinions where Justice Alito is on the side of a criminal defendant. So let’s just clock that. I think it’s just wild that they even issued the subpoena. I’m thinking back to last term when there are all of those shootings like Duvall Day. And we were waiting and waiting and waiting to get the opinion in Bruin, and it seemed like they held off on that, just understanding the public mood, like they could literally read the room. And maybe it’s that they understand that the public is probably not tracking these cases as closely, but it just feels like a stunning absence of just IQ IQ to release this.


Kate Shaw Read the whole country.


Melissa Murray Yeah, but I mean, again, I don’t know that many people besides us are clocking this in the same way, and they probably understand that too. But for people who are court watchers, I think this probably landed like a lead balloon, like you’re seriously doing this at the time. You’re all being looked at for that.


Kate Shaw And what Alito basically says is we have to reverse this conviction because. The law doesn’t encompass this sort of conduct by a private citizen because Percoco was technically not on the government payroll at the time of the conduct charged. And what Alito says is the law just doesn’t encompass this kind of conduct. Just because somebody has informal political or other influence over governmental decision making. And the opinion does say it is not holding that private individuals can never be held accountable in this way, like maybe they could be if they’re truly acting as arms of the state. But that wasn’t the case here. And I’m not so sure Alito actually really would ever find that those requirements satisfied. But in terms of the Wall Street Journal piece of it, it was just like here are like, you know, listing everyone whose errors led to the conviction. Like sort of seemed to me like what Alito was doing, which is that Congress hasn’t passed laws that are explicit enough that this kind of conduct is illegal. And prosecutors have written the wrong kinds of charging instructions and lower courts, including the lower court here, like they’re to blame, too, say like we have no choice but to reverse this conviction. And of course, the court in this like really reactive posture, which is all we’re doing, is like everyone’s overreaching and we are protecting values of notice and due process and avoiding the criminalization of this like really warped view of ordinary politics, which the court thinks need some constitutional protection as far as I can tell.


Melissa Murray This reminded me of something very different, not the Wall Street Journal interview, although it might be related. I thought his whole discussion of Percoco as a private individual, as opposed to a government employee, very much sounded in the register of Kennedy versus Bremerton School District from last term. That was the preying coach case. This idea that this man has a right to be in a place that is nominally public but doing his own thing as long as he’s sort of off the clock, however briefly, like like there’s just all of this privacy for men to do these things. And here too, I mean, like Percoco went back to Cuomo’s staff like three days later, but for that one brief moment of time, he’s a private citizen and apparently he can cry if he wants to and accept money. So, you know, the whole thing just seemed very much in that vein. And once again, Justice Alito and much of the court sort of taking up for these beleaguered men who are doing things that maybe they ought not be.


Leah Litman Bro’s rights. Due process. Men get to do what they want.


Melissa Murray Bro-TUS.


Leah Litman Yeah, exactly. From SCROTUS.


Melissa Murray SCROTUS.


Leah Litman You heard it here first. So, Kate, you mentioned how this opinion reflects Alito’s warped vision of ordinary politics. I wanted to highlight two passages along these lines from the opinion that stuck out to me, especially in light of what’s been reported. So one read as follows quote From time immemorial there have been eminence gris individuals who lacked any formal government position, but nevertheless exercised very strong influence over government decisions. Some of these individuals have been reviled. Others have been respected as wise counselors. This was basically him describing Leonard Leo as best I can tell. And one more quote. Is it enough if an elected official almost always heed the advice of a long time political advisor, Is it enough if an officeholder leans very heavily on recommendations provided by a highly respected predecessor, family member or old friend who gives them free personal jet rides or gives $25,000 to their wife with no mention of her? Of course, I added that last phrase to be clear. It ended at Old Friend.


Kate Shaw It was implicit.


Leah Litman Duh.


Melissa Murray Back when this case is argued, we highlighted some clips from the oral argument and once again, some of these clips just hit a little bit differently in light of subsequent reporting. So let’s play some of Neil Gorsuch and Sam Alito’s hypotheses for how politics might work and various things they are worried about criminalizing.


Clip And that might be the in office argument. Your bright line. I understand that. But if the court were to go beyond that, is there any stopping point? Is this statute cover all lobbying potentially? What do you say about somebody who is a super, super effective lobbyist? So let’s say this person is a childhood friend of the person, the elected public official. They played together on the high school football team. This person was the elected officials best man or maid of honor at the wedding, spearheaded person’s political career. Campaign manager for every campaign helped this elected public official out of numerous political scrapes that everybody thought meant the end of the person’s political career. Now, as a lobbyist lobbies lots of different public officials, has lots of clients, has a 100% success rate. With respect to this public official, there’s a concern about having this interpreting this statute to sweep in lobbying. But with that person be covered, in your view? This town is full of such persons and presidents have had kitchen cabinets since the beginning of time, and those people are often taken quite seriously in the halls of government, whether they should or not. An interesting public policy question. But I would have thought that many of those persons would would function as be functional, functional governor, government officials. Is that your phrase? Let’s let’s see how he does that. You know, that that he’s in the White House or in the halls of Congress on a regular basis. And people know that he is taken very seriously by the elected official and that they have to they have to listen to that fellow and do as he says, because they know he speaks for the president or the Senate or whatever.


Melissa Murray So Gorsuch and Thomas wrote a concurrence here. And the concurrence basically has a flavor of saying without saying explicitly that the whole idea of honest services fraud as a federal crime, about which there has been a lot of Congress dialog since the 1980s, just cannot be salvaged. It’s just irredeemably and irretrievably broken. And, you know, I don’t know what else to say about this. We are apparently there’s nothing Congress can do about public corruption.


Leah Litman They are making public corruption great again.


Melissa Murray I love it. Keep crime-in


Kate Shaw I definitely agree. The concurrence, I think, says explicitly what the majority can’t bring itself to say. But I think actually it does believe, which is that in much of the conduct that prosecutors have historically reached under sort of honest services, fraud theories can’t constitutionally be prosecuted. So it’s not about the laws being slightly drafted wrong or the charging instructions being a little wrong. It’s just that the court.


Melissa Murray It’s off the table.


Kate Shaw Criminalize this stuff. Yeah. And I think that Gorsuch and Thomas say this, except for that there’s this weird part of the of that concurrence where Gorsuch does sort of say in this like, of course, obnoxious, self-aggrandizing way. And like Peak Gorsuch proposed that like maybe there would be a way to write a properly drafted statute that could survive. I don’t know, do I subjectively subject our listeners.


Leah Litman You got to do the last sentence. The last sentence is just incredible.


Kate Shaw It’s okay. Okay. So there are a couple sentences in which Gorsuch says, I have no doubt that if all nine justices put our heads together, we could rewrite section 1346 to provide fair notice and minimize the risk of uneven enforcement. But that is not a path the Constitution tolerates. Under our system of separated powers. The legislative branch must do the hard work of writing federal criminal laws. Congress cannot give the judiciary. I’m sorry. I think I can get through this.


Leah Litman This is the line. You’ve got to do it right.


Kate Shaw Congress cannot give the judiciary uncut marble with instructions to chip away. All that does not resemble David.


Leah Litman Fantastico!


Melissa Murray He’s like, I saw that.


Leah Litman I saw that statute. In Italy.


Melissa Murray When I was Padua we took a little side trip to Florence.


Kate Shaw Yeah and we saw David and so I know all.


Melissa Murray We saw it all.


Kate Shaw Ugh huh. Yeah. Okay, So let’s. Let’s. There’s what we can do. We could. We could linger for longer, but let’s briefly cover the second political corruption case, which is Simonelli versus United States, also involving a fraud prosecution growing out of New York and the Cuomo administration.


Melissa Murray It’s almost like there’s a lot of crime and stuff going on during the Cuomo administration.


Kate Shaw Well, note all these things actually, Melissa, were not crimes. We were all wrong.


Melissa Murray Oh That’s right.


Leah Litman It’s just politics.


Kate Shaw It must have pained Sam Alito, to be overturning the convictions of these Democratic staffers. But sometimes this is because these.


Leah Litman People say the court is partizan, come.  Democrats. Republicans. They can all engage in political corruption.


Melissa Murray Does Andrew Cuomo go to the Bohemian Grove? We’re going to find out.


Kate Shaw It’s a great question. I’m going to go with. Yes, it’s powerful men. It’s mostly conservative, but it’s powerful, man. And I think that that’s if that’s the sort of key criteria.


Melissa Murray Sandra Day O’Connor’s husband went to the Bohemian Grove like a lot.


Kate Shaw I thought you were going to say Sandra Day O’CONNOR went and I was going to be really surprised.


Melissa Murray No.


Kate Shaw All right. So Simonelli involves the Cuomo administration’s Buffalo billion initiative to invest $1,000,000,000 in upstate New York. Simonelli was the owner of a construction company that was involved with a scheme in which Simonelli paid a Cuomo a large sums of money for that aid to smooth the path for Simonelli getting these lucrative contracts that were part of the initiative. One of them was the $750 million project. So slightly different facts from Percoco, but the same basic idea.


Melissa Murray Bags of money without anyone’s name on it. So not surprisingly, Simonelli ends up being charged with fraud, but not under the same honest services theory as Percoco. Instead, it’s under a theory developed in the Second Circuit that’s known as the right to control theory, under which the government shows that the defendant scheme to deprive a victim here, the New York State authorities, of potentially valuable economic information necessary to make discretionary economic decisions, but for different reasons that probably pertain to the same underlying reason. Justice Thomas, again writing for a unanimous court, found that this conduct didn’t actually violate the wire fraud statute because the statute 18 USC Section 1343 requires a scheme to obtain property.


Leah Litman And Thomas says that the property referred to in that statute does not include intangible interests like the right to control the use of one’s assets. So once again, the jury was improperly instructed and once again the conviction is reversed, just as the Alito opinion was concerned about the application of this version of honest services fraud to an upstanding lobbyist. Thomas here is concerned about bringing state law corruption under federal law.


Melissa Murray So this is a breezy little night. One pager. Justice Alito writes a separate concurrence to say that perhaps there is another path to prosecuting Simonelli, this time on a more traditional property fraud theory. I’m not willing to let him off the hook entirely, it seems. But that might be because this is all part of a Democratic administration. So more grievance. Let’s move on to the next opinion, which was about pork so related to just excess earmarks and whatnot. This was National Pork Producers Council versus Ross. And I’ll just say this was a messy, messy, messy, splintered opinion. It’s nominally a fight for opinion, but it really is a kind of three, two, 2 to 4 opinion at various points. But the bottom line is that the Supreme Court upheld Proposition 12, which was California’s law that prohibited in-state sales of pork that were raised in inhumane conditions. And the partial dissent here comes from the chief justice, Justice Alito. Justice Kavanaugh And wait for it. Justice Jackson So a very atypical lineup. And this whole case just made me think of Charlotte’s Web. Some pig. This was.


Kate Shaw Some opinion. The reason it is kind of, as Melissa just said, a 3 to 4 opinion is that Justice Gorsuch has what is styled as the opinion of the court and four very significant portions of it. It is the opinion of the court, but there are also portions of Justice Gorsuch is opinion that aren’t joined by all five justices. And there are parts of the opinion that are actually rejected by the six justices who didn’t join certain parts of that opinion. And then there are a bunch of separate writings from the justices in the majority, one by Justice Sotomayor, one by Justice Barrett. And that is in addition to a separate writing that is a partial dissent by Justice Kavanaugh on top of the primary, dissent by the chief justice. But the court does affirm the Ninth Circuit opinion, dismissing the challenge to the California law. So whatever these separate writings might mean for the dormant commerce Clause, for future challenges to state laws, including to this law, for now, California’s law remains untouched. So this is a big win for California, a real win for the piggies. Some pigs, all the pigs. So let’s try to break this down a little further.


Melissa Murray The bottom line here is that California can prohibit in state sales of pork that were raised in inhumane conditions, even though the overwhelming majority of pork is actually imported into California from other states. Recognizing this, the plaintiffs had argued for a sweeping vision of the dormant commerce clause and the dormant Commerce clause is the notion that the Constitution’s grant of power to Congress to regulate interstate commerce also includes, by implication, a prohibition on states passing laws that would discriminate or impede that kind of commerce. So here the plaintiffs argued for a broad interpretation of the dormant Commerce clause interpretation that would basically prohibit virtually all state laws that have the practical effect of controlling commerce outside of the state. Even if the laws were not intended to discriminate against out-of-state economic interests. So a much broader vision of the dormant commerce clause and the court had previously recognized.


Leah Litman Writing for the court in his typical, extremely tortured and overwrought style, just said. Exactly that the TLDR Justice Gorsuch rejected that argument, noting that the Supreme Court’s dormant Commerce Clause jurisprudence focused on preventing purposeful discrimination against out-of-state economic interests and adopting the plaintiffs proposed rules, Gorsuch said, would cast a shadow over a broad range of existing state laws that affect out of state behavior but are permissible. Then, in another section of the opinion that has an actual majority, the court rejected the plaintiff’s other argument. That was the portion that challenged the California law is unconstitutional under the Supreme Court’s 1970 decision, Pike versus Bruce Church. And that theory maintained the law’s benefits for California residents did not outweigh the costs that the law imposed on out-of-state economic interests.


Melissa Murray And this is where it kind of gets interesting. According to the court, this pike balancing test was designed to identify laws that are intentionally trying to suppress out-of-state commerce so to be discriminatory. And in this case, Proposition 12 was not intended to suppress out-of-state interests. Those are the only portions that commanded a majority. But there is more.


Leah Litman Because in the following sections, Justice Gorsuch wrote for one plurality of justices that included himself, Justice Barrett and Justice Thomas. Maybe the biggest insane goes on the court, at least in some ways. But that trio said that Pike balancing is another one of those areas of law that has been maybe abandoned or maybe overruled. But in any case, no longer really exists, at least in any meaningful form. So though, this.


Melissa Murray Is exactly what they did to the Levin test.


Leah Litman Yes, exactly right. Exactly. You know.


Melissa Murray The abandoned.


Leah Litman Right, like these sections of the Gorsuch plurality opinion suggest at various points that. Or it’s just can’t do pipe balancing at all. Or maybe that they at least can’t do it when a law has noneconomic benefits.


Kate Shaw But as we said in the opening, these are writings by three justices that appear to be rejected by six justices. As Justice Kavanaugh writes in his partial dissents concurrence although parts four, B and four D of Justice Gorsuch as opinion would essentially overrule the balancing test. Those subsections are not controlling precedent, as I understand it. So I do think the math means pike remains.


Leah Litman Yes. No, I think that’s right. Brett showed us he can count to Five


Melissa Murray For now. All right. So what happened in the other concurrences And specifically, how is it that Justices Sotomayor and Kagan end up voting for the same bottom line result as Justices Gorsuch, Barrett and Thomas, that the California law is constitutional, even though they don’t necessarily reject the concept of pike balancing, as the trio did in Justice Sotomayor’s concurrence in which she was joined by Justice Kagan, she writes, quote, I vote to affirm the judgment because petitioners fail to allege a substantial burden on interstate commerce as required by Pike, not because of any fundamental reworking of that doctrine. So she’s like, I still think Pike is good law. I haven’t abandoned anything, blah, blah, blah. And Kagan, together with Sotomayor and Thomas, joined the section of the Gorsuch opinion that says that the plaintiffs didn’t show that the law had a substantial burden on interstate commerce. That portion of the opinion said, Yeah, the burden falls on out of state commerce, but so what? It benefits out-of-state commerce as well. Producers that raise pork and humane conditions will benefit being able to send their products to California where there is now a market for it. So it offers a choice for primarily out-of-state businesses. Change your business practices or forgo doing business in California. And if they change their business practices, they can and might pass along the costs to California consumers. Economics, the market, all the things, right?


Leah Litman Yes. So Justice Barrett also wrote a concurrence to say no. Actually, the plaintiffs did allege a substantial burden on interstate commerce. And then she just cites Scalia opinions and writings to say that the dormant commerce clause and or paycheck balancing just aren’t a thing.


Kate Shaw I’ve read the Barrett opinion like three times. It’s very short. I have no idea what she’s saying. Like, I feel like you threw like 20 sentences on a page and they have nothing to do with each other. And the thing does not make any sense.


Melissa Murray The opinion by the chief justice is the primary dissent, and in that opinion, the Chief Justice would remand for further pike analysis. Given that they say that the plaintiffs did allege a substantial burden on interstate commerce. So, I mean, again, they are all over the place on pike balancing on the dormant commerce clause. Is it a thing? Is it not a thing? All the things like this opinion is messy, messy, messy.


Kate Shaw So in terms of the upshot here, it does seem like maybe SCOTUS isn’t coming for state laws with extraterritorial effect. And that is a good thing for animal welfare, for environmental regulations, and more like maybe internet and broadband rules or social media rules too. Although, you know, the valence of these things can vary.


Melissa Murray Lies lies lies. If you put an abortion law in here and we’re going to be all up in extra territoriality.


Kate Shaw Could be. Yeah, So I will I’ll happily, not happily. I may be eating those words very soon, but at least as to the kinds of laws that I just listed, I actually think the Supreme Court is not going to be able to get to a majority. That’s going to suggest that there’s a constitutional problem there. But you’re right, abortion is subject to its own set of rules, maybe guns, too. So let’s move on and briefly tick through the additional opinions that the court released last week. So, one, we got an effectively unanimous opinion in Santo Zachariah versus Garland. This is an opinion by Justice Jackson. It makes it slightly easier for non citizens to challenge removal orders. Specifically, it allows non citizens to challenge removal orders in federal court even if they have not first asked the Board of Immigration Appeals for discretionary forms of relief, relief that isn’t afforded or guaranteed as a matter of law. And here the petitioner did not ask the BIA to reconsider a decision she says incorrectly did some fact finding above and beyond what the immigration judge had done. But that failure is not fatal to her claim.


Melissa Murray So the court says she didn’t have to pursue that remedy. A motion for reconsideration because it’s discretionary. And even before getting there, the court also concludes that the requirement to first try administrative remedies before going to federal court isn’t jurisdictional, which means if the government doesn’t make a stink about it, courts can’t bring it up on their own. Now, Justices Alito and Thomas, of course, would have done this differently. They wouldn’t have decided the jurisdictional question. They just would have said that the requirement doesn’t apply to discretionary remedies.


Kate Shaw And this is a short, tight K.B. opinion that on its surface is pretty focused on the sort of relevant statutory text, but also I think is obviously really interested in Congress’s intent and purpose and also does a lot of think of. Vindicated reading of the relevant statutory provision against other related statutory provisions. But I do think that it’s significant that she held the court together, a functionally unanimous court on the style of the opinion Nobody decided to break because I think she didn’t do anything that sort of explicitly said we’re focused on purpose and not tech. She sort of weaved them together really deftly. And I hope that means that future statutory cases by this new court are going to be more willing to actually look to what Congress intended.


Leah Litman So another note about how the opinion is written. The petitioner in the case is a transgender woman. The Supreme Court opinion uses she her pronouns contra the practice in the Fifth Circuit, at least by Stanford Stormtrooper Kyle Duncan. The opinion also uses the phrase noncitizen rather than alien, which the court has done before. Both of these things are consistent with prior Supreme Court practice, even if they’re not consistent with some of the practice in some of the courts of appeals.


Kate Shaw Hopefully that’s a useful signal to lower court judges that if, you know, Sam Alito was on board with providing a baseline level of respect to parties, like for the love of God and the lower court judges, please do the same.


Melissa Murray We also got the opinion and Financial Oversight Board of Puerto Rico versus Centro de Pirro. Dismal investigative vote. This is an 8 to 1 Kagan opinion with a dissent from Justice Thomas. It finds that Congress did not eliminate the board’s immunity from lawsuits, saying federal law did not authorize suits against the board. And it’s a pretty straightforward opinion that just says, look at our prior cases where we’ve said that what is required is a clear statement from Congress to abrogate immunity. And here there is no clear statement. So we’re done. Thank you. Goodbye.


Kate Shaw So on the one hand, it is clearly a good thing that this opinion does not consign Puerto Rico to a kind of second class status among governments within the United States. It affords Puerto Rico the same kind of immunity that states and the federal government enjoy. Although, we should say the court does not hold that Puerto Rico enjoys the same kind of immunity. It just says that it is assuming without deciding that Puerto Rico is immune from suit in the same way that states and the federal government are. And the court then asks whether in light of that assumption, the federal law over comes Puerto Rico’s sovereign immunity.


Leah Litman It’s also important to keep in mind that the upshot of this case is kind of bad in that sovereign immunity blocks accountability and transparency. You know, this was a suit by a nonprofit media organization asking the board to give them materials related to Puerto Rico’s fiscal crisis and process for debt restructuring. And, you know, the plaintiffs say the board’s refusal to hand over those materials violates the Puerto Rican Constitution’s guarantee of a right of access to public records. And this opinion means they can’t get that access. So even though it’s partially respectful of sovereignty and affording or at least assuming Puerto Rico has sovereign immunity, it’s not in other ways. You know, the provision of the Puerto Rico constitution is a provision actually adopted by Puerto Rico, and that is going to go unenforced.




Leah Litman So as promised, we also have some additional news we wanted to include that touches on a case we have talked about before that could also extend into the next Supreme Court term. And that includes a complicated update about this case. And that’s the case of Richard Glossip, who’s been sentenced to death for a crime for which there’s now pretty powerful evidence that he just did not commit. So we’re going to recap some of the facts for you with a very special guest. The last time we had discussed the case was when the attorney general of Oklahoma had recommended clemency for Glossip, which seemed like a very positive development that could have brought all of this insanity to an end. Alas, that didn’t exactly happen. So with us to discuss where the case is now is one of Mr. Glossip’s attorneys, John Mills of the Law Practice. Phillips Black. The Phillips Black Project actually commemorates the work of Samuel Phillips and Hugo Black. Phillips was the United States solicitor general during Reconstruction, and he unsuccessfully represented the United States in the civil rights cases, trying to defend, you know, the early federal civil rights laws. And he represented Homer Plessy in Plessy versus Ferguson. And the black reference to Hugo Black is a nod to the justice who authored opinions like Shoprite versus United States, Griffen versus Illinois and Gideon versus Wainwright. You know, the decision establishing a constitutional right to counsel. Welcome to the show, John.


John Mills Thank you. It’s a real pleasure and honor to be here. Really love what ya’ll do here.


Leah Litman Thank you. So could you just briefly recap for our listeners what Mr. Glossip was convicted of and some of the incredibly powerful evidence that you all have since collected that raises such serious doubts about his innocence?


John Mills Happy to do so. Rich, it was convicted of murder in Oklahoma, and he was convicted on a theory that he had hired Justin Snead to commit the murder. Everybody has always agreed that Justin Sneed is the person who committed the murder. And the only question has been whether or not Rich had anything to do with it. He’s always maintained his innocence, and the only real connection between the murder and rich closet was Justin’s needs testimony saying that Rich had hired Sneed to to commit the murder. Some of the evidence we have developed this cast some doubt on that is Justin Speed’s effort to recant his testimony, as well as a memo from the prosecution indicating that they had coached Sneed to change his testimony to fit to some of the evidence and a whole bunch of other issues, including the little bit of money that our client had on him, had no blood on it. But Justin needs all the cash that he had on him, did have blood on it, including, you know, microscopic droplets of blood. So the basis on which the state has implicated Rich has always been said. And after they turned over some files that Mr. Glossip had asked for over 20 years ago, they turned them over. Only recently, the state’s case has really crumbled.


Leah Litman And those files included the statements from prosecutors indicating that they understood several decades ago that even then Justin Sneed was trying to recant his testimony. So this is not, you know, some very later in time attempt at recantation.


John Mills Correct. This is evidence that the state had at the time of his trial and had an obligation to turn over at the time of his trial.


Melissa Murray So can you tell us, John, what stage Mr. Glossip’s case is at now and what the legal claims he’s raising now are?


John Mills Yeah. So based on these recent disclosures, we saw it relief from the Oklahoma State courts. Those courts denied relief despite the attorney general saying that he needs to have a new trial. And so after that denial, we filed a petition with the United States Supreme Court asking them to intervene and reverse the Oklahoma court decision.


Leah Litman And it sounds like some of the legal claims you’re raising are Brady claims, which is the prosecutor failed to disclose evidence that cast Mr. Gossips guilt into doubt. But any other legal claims that are kind of at issue in the case right now?


John Mills Yes, absolutely. So there’s two sets of issues that arose as a result of the disclosures. One was the Brady claim with regards to Sneed recantation, and then the other is one that Snead lied when he testified and that the state knew about it. Sneed testified that, no, he never had seen a psychiatrist, wasn’t under the care, one, didn’t have mental health problems. In fact, the prosecution had in its files a statement from Sneed saying that he was under the care of a psychiatrist and had been prescribed lithium. And when combined with methamphetamine, which Sneed had an addiction to at the time, could make someone quite violent and may have explained his behavior in this case. So with the disclosure of the state’s knowledge about Snead being treated, it was clear to us then that the state had knowingly presented false testimony, and that’s what the Oklahoma attorney general confessed error on. And that is at issue before the United States Supreme Court as well.


Kate Shaw And we’ll return to sort of what’s pending right now before the Supreme Court. But I just wanted to quickly remind our listeners of something, which is, John, I’m not sure if you were involved with Mr. Latham’s representation at this point, but people may have heard Glossip of his name in the context, not of questions about his guilt in the context of this particular offense, but in the context of a challenge that he brought to the method of execution that Oklahoma was planning to use in his execution. That resulted in a 2015 Supreme Court case in which the Court rejected the challenge, basically put the onus on individuals sentenced to death to supply themselves what the court deems a constitutional method of execution. The case drew a concurring opinion that we have described before by Justice Thomas. That is a truly ghastly opinion and some important dissents, including a really powerful dissent from Justice Sotomayor. Were you involved in the representation at that stage as well, John?


John Mills I was not involved at that stage. And however, that decision has loomed large over Rich’s case and our efforts here. I think that that case, at least in the minds of some people on the court, represents why the death penalty needs to be faster and more brutal. And a hurdle for us is to overcome that. And I think the evidence that’s come to light since that decision came down has given at least five members of the court some pause. And I think we’ll probably talk about it shortly.


Leah Litman It’s another kind of stunning example about how in the court’s Eighth Amendment cases on the constitutionality of the death penalty, several of those cases, it turns out, involve individuals who are possibly innocent. You know, we’ve discussed before the writing of Justice Scalia, who basically challenged Justice Blackman’s criticisms of the death penalty and raising doubts about whether the death penalty was constitutional. And Justice Scalia said, well, you didn’t say so in this other case involving the McAllen brothers. Well, guess what? It turned out the McAllen brothers were innocent. And now it turns out this foundational case that the court used to make it substantially more difficult to challenge methods of execution. And Justice Thomas writes separately, basically saying states should be allowed to execute people more quickly and in more grotesque ways, like also involve someone where there is a very real chance that they are innocent. And it’s just the entire edifice of the court’s death penalty jurisprudence is built on cases involving real questions of innocence. It’s just really stunning.


John Mills It is stunning. And in some ways, you know, Rich, this case is all too familiar for those of us who work closely on these cases. It involves poor police work, failing to collect evidence and interview witnesses who surely would have had relevant information for them. A coercive interrogation of Justin Snead. Snead had not named bridge class up or implicated him in any way until after the state had named Rich six times and suggested that Sneed could be facing the death penalty and that Rich Glossip was putting it on Sneed real bad. And so it was a very coercive interrogation. It’s a case that Oklahoma City is from a time period in which the lead prosecutor was seeking death very frequently and committed misconduct at a stunning rate. And, you know, and that’s something we see with the death penalty more largely, is that it’s not just a state or two that is responsible for most convictions, instance a death. It’s and it’s not even necessarily a handful of counties. It’s a handful of prosecutors nationwide that are responsible for most death sentences. And that’s true here. And then to actually have the death sentence imposed requires breakdowns in terms of representation by trial counsel and then breakdowns in the post-conviction process. And really, it’s been a convergence of all those factors and enrich this case.


Kate Shaw So just to take us back to the present. So the Oklahoma attorney general recommended clemency, had previously recommended the conviction be vacated, but the Oklahoma Pardon and Parole Board voted against recommending clemency, which meant the execution date remained. And you then asked the Supreme Court for a stay of execution. The Oklahoma attorney general acquiesced in that state request in papers filed actually by former Solicitor General Paul Clement. And the Supreme Court granted a stay. That’s the at least five justices that you just referenced. So what happens now or what beyond this temporary stay is needed to prevent the execution of a possibly innocent man.


John Mills So what happens now is the court will have a chance to resolve both the petition about the Brady evidence and the petition about the false testimony. And that’s what the state as the state is just allowing the status quo to continue while the court considers both of those cases. The state is going to have a chance to file a response to our petition about the false testimony. And it’s likely just because of the timing, that the court is not going to resolve even whether or not to accept the case until next term in terms of what’s going to be required in order to get real relief for Mr. Glossip. It will take a a reversal of his conviction and sentence. Right now, all we have is an order that the state can’t kill him. And if the United States Supreme Court declines to accept review of the case or does not reversed based on the grounds we presented, then his execution date could be again set and be vulnerable to execution.


Melissa Murray Our listeners have been following this pretty closely, John, and I think a number of them would like to know if there’s anything that we could do to help with Mr. Glossip case. Is it lobbying legislatures? Is it putting pressure on media to cover this more closely? What do you all need from us right now?


John Mills Well, one of the unique things about Mr. Blossom’s case is that he has the support of 62 legislators in Oklahoma, led by a legislator who is a vocal supporter of the death penalty. But he has looked closely at this case, is really troubled by it. And so he is looking at creating some legislation to prevent manifest injustices like this from happening again, including making it easier to seek post-conviction review and giving more effect to the attorney general’s confessions of error. So pressure lobbying the Oklahoma State legislators to push forward with these reforms is something we’re hoping people will do. Visit save Richard Glossip icon and you can see ways to get involved in supporting that effort.


Leah Litman John, thank you so much for not only your work on this case, but for taking time out of your busy schedule to give us an update about what is happening with Mr. Glossip case.


John Mills Thank you so much for having us and for your attention to this case.


Leah Litman So last episode, we gave a shout out to Martha, who we speculated might be our youngest listener. At eight years old, while since then, we’ve actually learned about another listener who is seven. So we wanted to give this special shout out to Leyla. We love that you are listening, Leyla, and we also can’t wait to read the Supreme Court opinions that you are going to write one day.


Melissa Murray I love this race to the bottom. Are we going to have a fetus like I listen to Strict Scruitiny?


Leah Litman And then when Democrats finally get the message, we will be appointing these six and seven and eight year olds to the federal courts.


Melissa Murray I think one of the reasons why we’re having all of these scandals, not just with the Supreme Court, but with other judges about money and like questions about money is because these people are getting appointed to early and they haven’t made a lot of money and they have kids and private school and college to pay for. And I just think it makes them susceptible to these kinds of overtures.


Kate Shaw Where if you have someone who’s 60 years old and they’ve like.


Melissa Murray Yeah, it’s like a capstone.Their kids are grown. I mean, like, I wonder.


Kate Shaw It’s interesting. That’s an argument against putting Lila on the bench right now.


Melissa Murray I mean, not an argument against it’s also an argument against fetal personhood.


Kate Shaw That’s too. All right. So that’s all we have time for on this episode. Don’t forget to follow us at Crooked Media on Instagram and Twitter for more original content hosts, takeovers and other community events. And if you are as opinionated as we are, consider dropping us a review. And thank you to our amazing listeners who I think really were moved by some of the mean reviews that we read on our mailbag episode. And it really turned out to tell us that they love the show. So thank you guys for doing that.


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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. Ashley Mizuho is our associate producer. Audio Support from Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez, Leo Duran and Ari Schwartz. Digital support from Amelia Montooth.