Kate, Melissa, and Leah steel themselves to look back on a truly terrible term for the ages. From SCOTUS’s determined effort to hollow out the administrative state to its cynical dodges on abortion to granting immunity to certain corrupt former presidents, it was a rough ride. Drink, anyone?
TRANSCRIPT
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Show Intro Mister 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 slash vibes slash genre that surrounds it. We’re your hosts. I’m Melissa Murray.
Leah Litman I’m Leah Litman.
Kate Shaw And I’m Kate Shaw. And welcome to our term recap. We have had just a little time, as in about a day, to digest what we all just live through. So we’re going to ask you to bear with us as we try to process and work through some of this in real time, with each other and with all of you. And we have done a lot of opinion, analysis and critique along the way. So today we’re mostly going to focus on the big high level themes about the term. And if we have time at the end of the show, we will also turn to some roses and thorns. So first.
Mostly thorns.
Leah Litman Yeah.
Melissa Murray Mostly thorns.
Leah Litman Exactly, exactly.
Kate Shaw Spoiler.
Leah Litman The slim pickings for the roses. But we are going to try to find what we can, even if it’s a few straight lines in Justice Kagan’s bitch slap bench slap of the Fifth Circuit. So that’s what we’re left with. But first, a bit of a prequel. This isn’t a theme, but we wanted to remind people of the context for the beginning of this term and the end of it. So in the lead up to this term, ProPublica published a story about Clarence Thomas attending co*ke Network donor events that Leonard Leo had arranged. Sam Alito gave his now infamous Wall Street Journal interview with David Rifkin and James Toronto. Rifkin was one of the lawyers in more the preemptive wealth tax challenge that the court heard this past term. Alito then issued a recusal statement explaining why he wouldn’t recuse from more. The statement said, quote, when Mr. Rivkin participated in the interviews and coauthored the articles, he did so as a journalist, not an advocate. And, quote, basically, Sam gave us a preview of the court’s immunity decision. Only here what mattered was a difference between official versus unofficial lawyer acts.
Kate Shaw Only now did we actually.
Leah Litman Just copy pasted.
Kate Shaw He was saying.
Leah Litman Copy pasted that.
Kate Shaw That’s right. All right. So that was before the term started and also before the start of the term. This was in September of 2023. Politico broke some additional news about Ginni Thomas, Leonard Leo and the Supreme Court’s opinion in Citizens United that reporting detailed how, in the months before the court announced its decision in Citizens United, a group of activists created a dark money group that the ruling Citizens United would enable the activists Ginni Thomas and Leonard Leo, with backing from, you guessed it, Harlan Crow. And if this sounds like something that happened a decade ago, I too was like, as we were putting this note together, was like, no, no, no. That’s like ancient history right now. That was all in this absolutely interminable Supreme Court term. But it’s important to both remind you of what happened at the start of the term, and also what the term ended with beyond just the, you know, ghastly decisions that the court gave us.
Melissa Murray So while the beginning of the term was all about having an emotional support billionaire, it seemed like the end of the term was also about having an emotional support billionaire. There was Senate reporting on Justice Thomas’s additional private jet travel on the dime of one Harlan Crow trips that Justice Thomas did not disclose. Because why would you? Until they were made public by Propublica’s reporting. And the New York Times also had some really interesting reporting on House Alito, stop the steal, Christian nationalism flags. This was also coupled with Lauren Windsor’s epic Virgo Nia filled undercover sleuthing recordings of Justice and Mrs. Alito at a Supreme Court Historical Society event. And that’s not all. In addition to the reporting on both the undercover recordings and on the flags, Justice Alito decided to enter the chat with his own epic, Virgo, Nia filled recusal statement that said he had absolutely no involvement whatsoever in the flying of those flags. All of this was his wife’s fault because she, as he put it, is, quote, very fond of flying flags and quote. And he also noted that Martha Ann Alito is a rights holder with the authority to use their jointly held property in any way that she wishes and to make her own decisions. It must be nice.
Leah Litman The feeling of knowing what it’s like to be a rights holder in the eyes of Justice Alito. Wouldn’t wouldn’t know.
Melissa Murray Only one woman can say that.
Leah Litman Exactly.
Melissa Murray One of one the only one.
Leah Litman Right.
Melissa Murray Exactly.
Leah Litman So that reporting bookended this term. We also want to note that this most recent term, October term 2023, was the third full year of the court’s 6 to 3 conservative supermajority in each of the two previous terms. The 6 to 3 supermajority explicitly overruled, you know, at least one major decision a year and abandoned some others. And that certainly didn’t stop this year. The court overruled Chevron, abandoned Atlas Roofing and generally got its legal freak on in lots of ways.
Melissa Murray No, no, it wasn’t just getting your freak on. This was like free nick for Supreme Court justices. And if you don’t know what I mean, there’s a whole documentary for it, and you should check it out.
Leah Litman No, but just to tick off some of that freak neck, enormous new powers to the president, decimation of the administrative state, cynical dodges on abortion in a way that seem designed to push any major post Dobbs abortion decisions until after the next presidential election, an attempt to reduce the salience of abortion in the upcoming election. And we set this up at the beginning of the term recap, because this is the Supreme Court as we have it. And one is left to wonder, Will the Democrats do anything about this? Will they say anything about this, like attempt to run against the court or on constraining the court or reforming it?
Melissa Murray And we have done a real public service because we’ve given them some really good taglines to Yolo Court. I’m offering a law.
Leah Litman Just five law free zones, Scotus splaining to the administrative state.
Melissa Murray You name it, breaking it court, right? Freaking it court is right there.
Leah Litman Emotional support billionaires.
Kate Shaw Yeah. There definitely are scattered Democratic members of Congress and candidates who have been talking about the court and are but is the Democratic Party. Is the presidential campaign centering the Supreme Court the way it should, like right now? Not even a little bit. And if this isn’t going to galvanize that kind of response, like, I truly don’t know what is.
Melissa Murray The president did step out and make a statement after the announcement of the Supreme Court’s decision on the Trump immunity case. And there were some, I think, court forward notes in that. But I do think it’s something that could be pushed on a little more strongly, like really lean into it, right? I mean, I think this works with a lot of people, like maybe they should.
Leah Litman I have to say. Hearing the kind of response. And again, we’re recording this just a day after the term. But hearing the response thus far from the most powerful Democrats left me a little with the vibe of the Arrested Development shtick purr. Like, really like that. Really. You know, I’m just kind of like, waiting for a little bit more, along these lines, and it’s just not happening.
Melissa Murray I feel like that’s been a theme of this podcast, though, for the last five years. Every year we talk about how much the Democrats need to make the court a part of electoral politics. And I think it’s happening. But it’s go time, people. It really is an urgent moment, and the court is right at the center of it. And I don’t like I think the public understands that. I think people get that this is really f*cked up, but I think the politicians need to get on it too. Yeah.
Kate Shaw And look, I don’t I don’t know if running on the court is the best politics. It seems to me that it is. But certainly in terms of like propelling Joe Biden back to the white House and Democrats to control of chambers of Congress, seems to me like it could be a winning issue, but I don’t know for sure. But I do know that the court itself is just desperately in need of focus and attention and reform, and that’s never going to happen. If those who do spend their time talking to the public and to voters don’t focus on the Supreme Court. And there actually is on this matter like there is good polling. So Marquette did a poll a couple of months ago. Approval of the Supreme Court is back down in the trenches where, you know, it has been sort of it’s been where it belongs lower, but it’s at 39%. And that is, you know, tied, I think with the lowest levels since they started this polling.
Send those 39% Strict Scrutiny.
Kate Shaw Yeah. That’s right. No, it should be below that. But that is a shockingly low in kind of comparative terms. And that’s before the barrage of decisions in the last two weeks of the term. So I would be very curious to see what the next round of polling looks like. And interestingly, in that polling, there was something buried that I hadn’t noticed at the time the poll came out, which is that 71% of the polled respondents said there should be no immunity for ex-presidents. Like, it’s very hard to get 71% of respondents to agree on anything. And so in addition to just, well, you know, we’ve talked about this, we’ll talk about it a little bit more on this episode, but vile, egregious, dangerous, all the other things that the immunity ruling is like, I think that’s a really unpopular ruling. And if that’s the case and that’s something you can capitalize on to galvanize voters.
Leah Litman Yeah. And just to echo something we had said, I think in the last term recap, although it’s all blurring together at this point with all the horrors like running against the court again, I don’t know politically if it’s the right thing to do, but intuitively it is a way of changing the dynamics of informing people who right the ruling party is because they have this lock on the Supreme Court, and they are using it to institute all of their preferred Republican policies. Many of those policies are deeply unpopular, whether it is bump stocks, immunity for ex-presidents, or no emergency care for abortions. I mean, the New York Times had a poll suggesting there was something like 80% support in the country to allow people to get emergency abortion care when doctors and hospitals believe they need it. And on top of that, like whether it is the right political thing to do, it seems like it’s plausible. It is impossible. It is. But it is important enough for our democracy. Right? Like if this past term, coupled with the last two did not underscore to you enough what a threat this court is to democracy and how much they need to be constrained. I don’t know at what point you’re going to be able to get that before it is too late, before there truly are so many impediments to a majority exercising political power that it just becomes all the more difficult.
Kate Shaw Or impossible, like it just becomes impossible.
Melissa Murray Honestly, I feel like we’re living in the Weimer Republic. That’s dark, but that’s kind of how it feels. Yeah.
Kate Shaw It’s scary times.
Melissa Murray All right. Let’s go through some of these themes for this craptastic Scotus term. So one theme that I’ll put out there. What, you didn’t like that? I’m calling it like I’m it’s the end of the term. I’m f*cking done with decorum. I’m just calling it as I see it as a craptastic term. So the number one theme, as I see it is, is government as we know it. That is, is a semi functional democracy unconstitutional or are we really a monarchy slash autocracy run by a president king or failing that, by judge kings? And.
Kate Shaw And I’m thinking there’s a possibility. Yeah.
Melissa Murray Yeah. Maybe both/and. We identified this question in our term preview. So I’m going to roll that clip for the cassandras in the back of the house.
Leah Litman And the cases that kind of present this theme, you know, also can tend to sound a little technical, which also raises concerns about this potentially flying under the radar. But nonetheless, like the big issue and theme that they atop is whether government as we know it is constitutional.
Melissa Murray So we really called it, we said it and the court was like, bet, let’s do it.
Kate Shaw Yeah.
Leah Litman And they’re like, yeah, we will say that with our chest, say it with our chest. f*ck democracy. f*ck effective government.
Melissa Murray I mean.
Kate Shaw So let’s lay out a little bit sort of, of detail regarding how they set all of this.
Melissa Murray Are you going to be okay? Because we’re really like, are you going to be okay with this?
Leah Litman Melissa and I are already at like 500. So.
Kate Shaw Yeah, I’m here for it. I’m here for it. I’m revved up too.
Melissa Murray Are you gonna get there tho? Are you gonna get there?
Kate Shaw It’s just like its manifesting. It’s manifesting in a more subdued way, but I think I am I’m revved.
Melissa Murray Its a slow burn. Like the Democrats interest on the courts. It’s very slow burn. Try to get there Kate.
Kate Shaw I hope we I hope we all end up boiling because.
Melissa Murray Okay. Match my vibe, Kate.
Kate Shaw All right, all right, all right, all right. I don’t know if this next bit will, but give me time. I’ll get there. First, though, we wanted to sort of walk through a couple of categories of cases where the court’s interest in flirtation with dismantling the government was on display. First are the administrative law cases. And so that is Loper bright slash relentless the case overruling chevron Jarkesy the case invalidating an important mechanism for enforcement of laws that is agency adjudication Ohio versus EPA, a case second guessing an important emission standard and also setting forth, I think, a regime in which the court announced that there’s a new sheriff in town when it comes to second guessing agency rulemaking processes, and that sheriff is the Supreme Court’s last one, Neil Gorsuch. And finally, Corner Post, a case that massively expands the amount of time a disgruntled litigant or, you know, a billionaire benefactor who finds a plaintiff have to challenge agency regulations. So these are all cases that, in different ways, rip power away from expert agencies and transfer that power to the deregulatory goals on the federal courts. So that involves things like interpreting or resolving ambiguities in regulatory statutes and determining whether regulations are supported by evidence and also procedurally sound, and deciding how to enforce laws and regulations, and again when regulations can be challenged. So in each of these cases, the court delivered a decisive win to these deregulatory forces. And it also assumed for itself massive new powers and all of these different spheres.
Melissa Murray Another category in which you could also glimpse this theme of is democracy. Constitutional are the cases that are literally about existential threats to democracy, where the court was like, no, let’s open the door all the way to fascism. Let’s do that. So this, of course, was a set of cases involving January 6th. One involved the claims of immunity that former President Trump brought in response to his being charged with crimes because of the January 6th insurrection. Trump versus United States. There was also a set of questions that were raised in the Trump disqualification case. That was Trump versus Anderson, where the Colorado Supreme Court disqualified Donald Trump from that state’s ballot. And then there were the cases involving the rank and file. January 6th defendants Fischer versus the United States, where the court concluded that the statute under which many of the rank and file January 6th defendants had been charged was not meant to apply to the context of January 6th, but rather to something else. We’ve talked before about how that case really got these committed textualist those folks who love a little textual healing, well, they really got their purpose on. And honestly, I don’t even know what to say to that. They’re not even being remotely consistent with their application of these various canons of statutory interpretation or approaches. So these cases are all about normalizing authoritarianism by granting different kinds of immunity to corrupt anti-democratic behavior, or narrowing the reach of statutes so that they cannot reach behavior that is. Anti-Democratic and indeed deeply, deeply dangerous to the functioning of a working government. But, you know, no big deal.
Kate Shaw Yeah, I do think it’s really important to read those three cases together, especially because Trump versus Anderson is a couple of months ago, and I think people have a little bit forgotten about it. But like taking a step back, this is what is at stake here. So a former president lost to his opponent in a free and fair election. He sought to abuse his power and defy the Constitution and stay in office. Despite electoral defeat that was unsuccessful. Right? He left office and when he did, the American legal system tried to respond. So state and federal prosecutors brought charges against both Trump and other participants in the effort. And then some states moved to disqualify Trump and other offenders from future public office. As section three of the 14th Amendment contemplates. But at every turn in each of these cases, the Supreme Court has decided to shield Trump and his allies from meaningful legal consequence. And I don’t think you can understand this term without viewing those cases as part of that coordinated effort. Yeah.
Leah Litman At this point, Justice Gorsuch is book a republic, if you can keep it is basically the equivalent of OJ’s “if I did it.” Personally, I prefer “Democracy or else”.
Kate Shaw Yay.
Melissa Murray Ohhhh.
Leah Litman Yeah.
Melissa Murray It’s a good one.
Leah Litman But it is it is nice to know that boys can write books, too. So.
Melissa Murray Well, I love that Neil. Like, you can even stop himself from he-peating Benjamin Franklin.
Leah Litman So profound. That guy. So we’ve now gone through two cases that we think implicate this large question of is government as we know it, constitutional. But there’s also a third group of cases that I think fall under this umbrella. And I would describe them as reflecting a kind of nihilistic dystopian vision for government, where the court is actively blocking the government from intervening to save people’s lives and respond to people’s needs. And there are few entries in this category, and I’m going to put the case here, even though the court kind of held its fire and dismissed the case and send it back to the lower courts, but the court is responsible for putting the lower court ruling on hold and the injunction not being in effect for a period of time. So women had to be regularly airlifted out of Idaho to receive emergency care, and the courts leaves in place the Fifth Circuit decision that suspended Holly in that circuit, including in Texas. So excuse us if we’re not extravagantly praising the court for this dodge, but that is just like a very, very bleak understanding of what government is.
Kate Shaw Can we say this one more time? Like people in Idaho had to be airlifted for emergency care as a direct result of the Supreme Court’s intervention to put on hold the correct lower court ruling, which after all these months, in their infinite wisdom, they decided, oh, that should go back into effect. Every single pregnant person who had to fly in a plane instead of getting needed care in Idaho had to do that because of Scotus. And I think we talk sometimes about the Supreme Court’s opinions, and we parse the legal reasoning and we ask if they’re faithfully describing precedents and like, those are the actual flesh and blood stakes of what the court did in this case. And I’m so glad that they didn’t do something horrible with EMTALA, but I’m so furious that the way they did it has removed abortion entirely from the debate about the court right now, at this critical time.
Leah Litman When in reality, the court basically just said, Oopsy, sorry we withdrew emergency medical care for women for like almost a year based on our just like little booboo.
Kate Shaw Of course, they would never say sorry because they would never, ever acknowledge fault. Ever.
Melissa Murray Why are you even surprised by this? They did the same f*cking thing in Milligan last term.
Leah Litman Yeah.
Melissa Murray This is the same thing where they’re like, you know what, let’s let these sh*tty maps go into effect. Let’s use them in the midterm elections. Let’s see the Democrats lose a seat or more, and then months later we’ll be like, you know what? Our bad. That was a gerrymander. Let’s strike it down and look like heroes. Like they do this all the time. Also, Kate, I loved how incensed you got. You’re almost there. Keep going.
Leah Litman Yes. Yeah.
Kate Shaw I’m reving up.
Melissa Murray Okay.
Kate Shaw No, I’m so furious about EMTALA. I’m so furious.
Melissa Murray Well, I mean, here’s the other reason to be furious about what the court did. I mean, so, yes. Now, the Ninth Circuit ruling isn’t like ruling. Allowing the lower court’s ruling to be in place has gone into effect. But as Leah said, the Texas law is in effect because of the Fifth Circuit’s ruling, and Texas actually has much more people of reproductive age than does Idaho. So it’s a huge, huge problem.
Kate Shaw Yeah.
Melissa Murray So do not pat these ghouls on the back for digging this like they’ve actually made it really terrible without actually resolving anything. Another place they’ve made things terrible is in bump stock land. So let’s talk about Cargill. So the court again, in this sort of dystopian, nihilistic fashion has unleashed bump stocks, these devices that can be attached to existing firearms to make them more deadly. To allow them to fire bullets and ammunition at a much more rapid rate. All of this is now permissible. And and I just want to note that the bump stock decision has this kind of neo liberal vibe to it, this idea like sort of neoliberal and libertarianism, like having a really terrible baby together, where the only kind of government we will accept is very limited government. And people have to just make better decisions for themselves. Like, you don’t want to get shot by a bump stock, don’t go out in public, stay in your home, ladies. And the choices that they have to make are within the limited confines of the protections that their state and local governments can sketch out for them. And again, those are very limited. But at bottom, the government cannot intervene to redistribute. It has to stay out of the way unless you’re trying to get an abortion, then they can definitely intervene. But it all just.
Kate Shaw To protect, right? They can intervene to protect.
Melissa Murray Yeah can’t intervene to protect. I would also lump the Chevron cases in with this too. If you think about this question of redistribution from corporations to the public for the purpose of.
Leah Litman To planet Earth.
Melissa Murray Yes, like all of it, is just incredibly gross. And this idea that government does nothing but stay out of the way of major corporations and then get in the way of little people who are just trying to improve their lives.
Kate Shaw Yeah. So let me throw one more case in under the heading of this kind of dystopian vision of government, which is the political corruption case. Snyder we talked about that case a good amount, but what it does, obviously, is allow gifts and rewards for official acts. It does so through this very lengthy exposition about the normalcy of giving, sometimes very valuable gifts to officials for the ordinary jobs they do. And I just wanted to quickly share an anecdote that just, like, made me think about Snyder. So I’m in Michigan with my family, and I took my kids down the beach to get ice cream at like a stand on the beach, and there was no tip jar. And so the teenager who, like, served it was like my kids and cousins and like seven kids, they changed their orders. It was a huge pain at the end. I wanted to give her a tip and there was no tip jar. And I was like, oh, can I just like, leave a couple dollars on the counter? And she’s like, oh no, no, this is where the city actually runs the stand. We can’t take tips. And I was like, cool. I’m I’m sorry. I felt the teenager I’m sure I would like she seemed totally sanguine about it wasn’t like resentful. Just inform me. And we went on our way and I was just like the symbolic and expressive force of a Supreme Court saying, like all of these laws and norms that we try to implement to keep government honest and serving the people, the court is just like so contemptuous about all of that. And Snyder technically says, okay, fine, States and localities can still regulate this stuff. We’re just talking about federal law. That’s the text of the opinion. But the vibe is such a pro corruption vibe, it cannot but have ripple effects on efforts at the state and local level to address this sort of thing. And like, it wouldn’t be corrupting to tip this ice cream surfer like by any stretch. But the vision of government, which is that government serves for reasons other than pure self-interest, is a vision that they want to completely eliminate. And it’s enraging.
Leah Litman Yeah, you’re right. Even though the opinion formally preserves the possibility of state and local prohibitions on that kind of gifting, the vibe is normalizing the gifts and rewards because the first set of reasons, or a key set of reasons the court gives for interpreting the federal statute that way, is basically, people do this all the time, and you can’t distinguish bad rewards from good rewards, and that is just gross.
Leah Litman [AD]
Leah Litman So that’s theme number one. Let’s go on to the next theme, which is the Fifth Circuit. And I’ll just caption this one. The fifth Circuit as a whole vibe. And we flagged this idea in our term preview. so Melody roll that tape here. Another dynamic, maybe it’s a theme I don’t know, is going to be watching the dynamics between the Supreme Court and the U.S. Court of Appeals for the Fifth Circuit, because a lot of the big cases that the Supreme Court is hearing this term are out of the Fifth Circuit, where the Fifth Circuit did some absolutely bananas stuff like the medication abortion case is probably going to make its way to the Supreme Court this term. The Cfpb case we just discussed also out of the Fifth Circuit, an important Second Amendment case, Rahimi, that we’ll talk about in a second, also out of the Fifth Circuit and others like those really involve out there Fifth circuit takes. And I worry, you know, that press and commentary will have a tendency to depict the Supreme Court as reasonable, measured, institutionalist, some combination thereof, if and when the Supreme Court distances itself from the Fifth Circuit’s particular brand of crazy.
Melissa Murray We called it.
Kate Shaw So yeah, we did. We call this let’s talk about some of the cases. So the reversals or victors just this term include them. Have a Presto in case FDA versus Alliance for Hippocratic Medicine, which was A90 reversal. Very, very hard to get this Supreme Court to agree on anything here. They did agree on standing, although, you know, some of them may have had cynical and opportunistic reasons to do that. United States versus Rahimi, an eight one decision in which the Supreme Court reversed the Fifth Circuit, where the Fifth Circuit had sided with an individual under a domestic violence restraining order who wanted to keep his guns. Supreme court reversed that kfcb versus Community Financial Services Association of America. That was a case involving the funding structure of the Consumer Financial Protection Bureau of the court, reversed the Fifth Circuit, their 772, a case involving federal agency contacts with social media companies. The court reversed the Fifth Circuit six three. Gonzalez versus Trevino net choice, three more Fifth circuit reversal. So the Fifth Circuit’s win rate is appalling at the Supreme Court. But it’s not a 100% reversal.
Melissa Murray I mean, it should be. But there were some performances that we should note. Garland versus Cargill bump stocks. That was a big, big performance for the Fifth Circuit. And one, I think, with really devastating consequences for everyone, not just people in the Fifth Circuit. Campos, Chavez versus Garland. That was the case about whether the federal government, when issuing deportation notices, have to provide the appropriate information about the time and place of the deportation hearing. This was over a really strident dissent from Justice Jackson, who noted that for years, despite the text of the statute, the federal government has basically been ignoring these dictates. And now the court has blessed it by saying that whatever the government provides, it’s totally, totally fine. And then, of course, there was S.e.c versus Casey, where the court bless the Fifth Circuit’s view that any time an agency uses an adjudicated proceeding, an internal adjudicatory proceeding, it’s a problem in terms of the Seventh Amendment’s right to a civil jury trial. So good times and of course, TBD. There’s the whole, Tala debacle that now is going to be playing out, I think, at the Fifth Circuit.
Leah Litman So what to say about the Fifth Circuit Supreme Court relationship?
Melissa Murray There’s so many different analogies that one could offer. I mean, it’s almost like the Fifth Circuit is like that sh*tty boyfriend that keeps coming around and, you know, he’s bad for you, but he’s just so hot, but he’s actually not even that hot. And your friends keep telling you that he’s not that hot, but you still keep going out with him. And like,.
He has a guitar and he keeps playing Push and you’re like.
Melissa Murray Yes.
Leah Litman Hey, I love that song.
Melissa Murray And like and occasionally your friends weigh in. Your friends, Ketanji, Elena and Sonia, are like, leave him, he’s a loser. And you’re like, oh, you’re right, I should leave him. And you do. But then he pulls out that guitar and you’re like, it’s time for some bump stocks. And you let him back in.
Leah Litman You know.
Melissa Murray There’s a better analogy I’m sure.
Leah Litman There is, but that one still worked. And we’ll probably get to more. So, before we get into the ways in which I think the court benefits from and indulges the Fifth Circuit did want to flag. There are times where even this Supreme Court seems exasperated with the Fifth Circuit, like the Fifth Circuit is doing its job too well.
Melissa Murray Only when its job is to make this court look good by going yes, far to the right that the court then gets to tack back and be only slightly less extreme and look like they’re moderates.
Leah Litman Right? Exactly. Getting a few bonus points from like temporarily stepping back from the abyss. Like, for example, the Chief Justice’s rebuke of the Fifth Circuit and Judge Ho and Rahimi, or Justice Barrett’s rebuke of the Fifth Circuit and. Murthy or Justice Kagan in net choice. Some choice quotes kind of illustrating this. So Justice Barrett and Murphy said, quote, the Fifth Circuit relied on the district court’s factual findings, many of which unfortunately appear to be clearly erroneous, end quote, or Justice Kagan, in that choice where, you know, she was like, we need to clarify the law of facial challenges and the First Amendment, quote, that need is especially stark for the Fifth Circuit. And there has been enough litigation already to know that the Fifth Circuit, if it stayed the course, would get wrong. At least one significant input into the facial analysis.
Kate Shaw That was fun. I appreciated that.
Melissa Murray It was. I actually will give it up to justice. Barrett wasn’t quite the zinger that Justice Kagan landed, but she’s she’s tipping over there. She’s she’s pretty pissed. But I’ll note the only people who are mad at the bad boyfriend of the Fifth Circuit are women.
Leah Litman Yes.
Melissa Murray Right. The other guys are deeply into it. Also a great analogy that works. I’m going to give a hat tip to friend of the pod, Sherrilyn Ifill, who noted this on the MSNBC show All In, hosted by our former roadie and current Mr. Kate Shaw, Chris Hayes, that the court’s rebuke of the Fifth Circuit is really like one a parent who spoils a child outrageously, then punishes a child for being outrageously spoiled. And I kind of like that because the Fifth Circuit really is Scorsese’s spoiled problem child. Like it’s the Prince Joffrey of the judiciary.
Leah Litman I think that really captures something I was trying to think of, like other spoiled children that are enabled by their parents and then for.
Melissa Murray Assault.
Kate Shaw No, but we need darker. We need we need a bloodthirsty, darker. And Joffrey.
Melissa Murray Exactly.
Leah Litman Joffrey gets it because like the other ones other than Veruca Salt that I was thinking of are like the Bluth children from Arrested Development. So, like Lizzy Bluth, like, it’s all I’ve ever wanted from you, daddy, to spend money on me. Or, you know, Buster and Lucille where, you know, Lucille will occasionally get annoyed with him at being dependent. It’s like, look at me getting off on being withholding. And anyways. But, some specifics here that underscore that I think, in my view, the court’s efforts to rebuke the Fifth Circuit are way more superficial and cosmetic than they are meaningful and substantive. Like this court is not actually unified around an idea of attempting to rein in that crazy. You know, there have been in these cases where there are reversals, no summary reversals. You know, the court could have easily, summarily reversed at least the medication abortion case. There was no need to spend all that time there. They also let them get away with a lot of B.S., including on administrative stays. You know, recall back to Texas before the draconian anti-immigration law that upended the existing framework for preemption, where the Fifth Circuit is like, oh, we’re just, you know, like administratively staying, but we’re going to sit on this for like a month. They’ve done that in other cases as well. And sometimes the Supreme Court gives the Fifth Circuit the okay, on ignoring precedent and just disavowing the concept of law, like in Iraq. And so the Fifth Circuit has not gone rogue, at least so long as they are taking the lead that the Supreme Court gave them. And we read the quote from Murthy of Justice Barrett chiding the Fifth Circuit for getting the facts wrong. It’s not like this court doesn’t ever play fast and loose with the facts either. So they are not exactly a role model and showing the Fifth Circuit how to do this thing called law and judging.
Kate Shaw They sure are not a couple of things about the Fifth Circuit like one. So both it’s reversal rate, but also it’s, you know, huge presence on the court’s docket. It was like, you know, 11 cases of the court’s very small number of Mary’s cases came out of the Fifth Circuit. But in some ways, like both the reversals, but even the performances, I think, underscore a couple of things. One, the kinds of off the wall legal theories that are now in the ether or in circulation that courts are being asked to embrace. And sometimes they are by not just in the Fifth Circuit, but largely in the Fifth Circuit, embracing them. But also, I think, again, the dynamic between the court and the Fifth Circuit relates to another theme that we flagged in the term preview, which is that you can’t understand what this court is doing and the havoc that it is wreaking by looking in this myopic way at how many precedents have been overturned. You can upend a ton of things that are settled in American law and life without overturning a Supreme Court precedent, because some things are so outlandish that the Supreme Court has never affirmatively ruled them out or ruled on them at all. And yet these are the kinds of asks that is shifted. Overton windows have now rendered plausible. And so maybe let’s play a clip from the term preview, in which we sort of identified this phenomenon as well. The measure of how radical this Supreme Court is does not lie just in precedents overturned. So, of course, Dobbs overturned Roe that. It was an enormous deal and the public could really understand how disruptive that was. But some of the cases on deck this term are such audacious asks that there isn’t even any case law to overturn. No one has even ever sought to frame and press arguments like this. So if they win, they could, you know, destabilize large swaths of our collective lives. But they won’t involve overruling a Supreme Court case, necessarily. And there’s a tendency to say, well, the Roberts Court or this iteration of the Roberts Court only overturns 1 or 2 cases, a term which is true across recent years. But that’s not the only way to measure the radicalism of this court. Here, I think, corner post the case about the Administrative Procedure Act. And when you can file a challenge to an agency. Regulation is a great example because. But the courts there says, is that the settled understanding about limitations periods, which was not set forth in a Supreme Court opinion, it was just understood by litigants and agencies in lower courts for decades, was totally wrong. And that is a radical sea change in the ability of litigants to challenge regulations. But it’s not one that involves the Supreme Court overruling a precedent. And so it won’t be captured by certain metrics that people use to sort of demonstrate what they think is either the radicalism or sometimes that relative moderation of the court. But do not be fooled by those numbers.
Leah Litman So, that’s the, number two. And trust me, it’s not going to get more uplifting from there, because the third theme we wanted to introduce is this idea of a lack of accountability. And this is really going to cover many different lacks of accountability. You know, this is not just in the glorious words of Melissa Murray quoting Sheree Whitfield, the court saying, I can’t even say it, Melissa, can I, can I invite you to give this performance?
Melissa Murray Who gonna check me, boo?
Leah Litman Sheree Whitfield by Melissa Murray. It’s not just the court saying that, though. There is plenty of that energy, you know, in cases. And I just rattle off Loper Bright, relentless over overruling Chevron, Jarkesy upending Atlas roofing, the structure of agency adjudications Ohio versus EPA, nixing good neighbor rule because why I don’t know Snyder a continuing to eviscerate public corruption laws. Trump versus United States. You know both the courts effective delay in deciding the case and the ultimate opinion. I mean, all of these just reveal a court that is like, we can do whatever the f*ck we want. And they have overruled a major precedent in each of the three full terms in which there’s a conservative supermajority. Big can’t stop, won’t stop energy, since no one is doing anything to stop them.
Melissa Murray The lack of accountability has also been very evident in the court’s repeated deflection of any responsibility for what is going on at the court, and that’s both in its substantive work and also behind the scene. So behind the scenes, Justice Alito’s sensational blaming of his wife, Martha, and for the presence of an upside down flag and an insurrectionist adjacent flag at their homes, is sort of case in point. I mean, you live there. You are a rights holder, sir. This might also be attributable to you, and maybe you ought to take responsibility. But no, why do that when there is a perfectly good hand wife to throw under the bus? So why not? In addition to throwing his wife under the bus in the pages of the New York Times. Justice Alito also wrote an absolutely unhinged, spectacular recusal letter where he said that the question of his impartiality in any of the cases involving the events of January 6th was only an issue because raging leftists it me had made it one raging partizan leftists that were hell bent on influencing the court’s decision making had thrown him. Samuel Alito.
Leah Litman A mere husband.
Melissa Murray Who.
Melissa Murray Has to succumb to his wife’s freaky flag flying on a regular basis and can’t say anything about it. That’s the only reason why people were talking about it, because we, the left, had made it an issue. The letter also cited the court’s ethics guidance for the proposition that he, Justice Alito, had a duty to participate in the immunity case and therefore could not recuse himself. Again, why stop there? The entire ethics guidance situation where the court announced its completely toothless code of misconduct, as if that should entitle them to praise maybe even a cookie rather than our continued scrutiny. I mean, like, all of this is just insane. Like, you do crazy stuff and then you get mad when people are like, that’s crazy stuff.
Leah Litman Stop doing. And you demand to be celebrated for it. Yeah.
Melissa Murray Why isn’t the organized bar coming out to me, Samuel Alito, merely a husband parade? Yeah, I’m just a guy with a wife who does weird sh*t. As Kate said, she cray.
Melissa Murray All right, I did say that. You just say that I was proud I did. I think you’re right. So.
Kate Shaw Right. So as all of those anecdotes make clear. Right. So lack of accountability was on display in the extracurricular activities of the justices, but the lack of accountability, refusal of accountability was also very evident in the courts opinions. So couple of examples. The chief justice in Rahimi trying to insist that the problem isn’t that the court’s 2022 Second Amendment case, Bruin, is a f*cking crazy decision. The problem, according to Roberts, is that the lower courts just don’t understand how to apply it. Bruin, even though it took all the justices their own writings to try to explain Bruin and the actual author of Bruin dissented from Rahimi. But here, I think Roberts reminds me of, like, the guy in the hot suit. We’re all trying to figure out who did this meme. It’s like, you know, was it the Fifth Circuit? Like misunderstanding other lower courts of appeals? Misunderstanding? It’s like, no, Bruin is the problem, and the court has no ability to take actual responsibility for that. You also had Alito in Cargill basically saying, so that’s the case involving bump stocks in which the court. Uses six diagrams and a gif, all of them borrowed from the amicus brief of the Firearms Policy Coalition to find, in a way that is, I think, wildly inconsistent with the text and purpose of the machine gun ban. The bump stocks do not convert semi-automatic rifles into machine guns. And Alito writes separately to basically say, well, our hands are tied. The statutes text is clear. No it’s not. But he says Congress, of course, can always write a new law and make bump stocks illegal that way. First of all, he knows that’s not going to happen. And second of all, like within 24 hours, it was clear it wasn’t going to happen because there are definitely not enough Republican votes, even for this kind of reasonable intervention to limit firearms. And last example of this, Snyder, the public corruption case, the court insists that the problem is that the federal statute is too broad, or that federal prosecutors are using it improperly, and it’s fine. States and localities can still prosecute these gratuities, right, like gifts and rewards after the fact. But there, again, is the courts, a complete deflection of responsibility from itself as having made a set of choices and imposed them on the rest of us.
Melissa Murray Another facet of this lack of accountability is the court’s utter lack of accountability for Republicans. Right? So in case after case, the court weirdly seems to side with the partizan interests of the Republican Party. So take, for example, Alexander versus South Carolina and the NAACP. That is a case about gerrymandering, where the court essentially said that Partizan gerrymandering is so important and so much more important than racial gerrymandering, that we just basically have to allow a little racial gerrymandering among friends in order to allow Republicans in South Carolina to do the Partizan gerrymandering even better than they already do, and which we do not police because we already did that back in 2019. So yeah, big one. There was also the January 6th case, Fischer versus United States, where the court decided what’s a little minor cooing compared to Enron, right. To which we might say, both are pretty f*cking bad. And you can say that about both. Like, it’s not mutually exclusive to say that both are pretty bad, but no. Nope. You got to narrow that Enron statute because a little COO between friends is just fine. And then, of course, finally there’s the court’s treatment of the Trump cases, both the disqualification case and the immunity case. In the disqualification case, you know, the court was like, we can’t have this patchwork quilt. And they got a unanimous opinion. So I just want to call out the three liberals on the court did go along with this, although they wrote a kind of dissenting concurrence to explain why they thought the court had gone even further than they needed to. But with the immunity case, that was just straight up insane, and everyone in the court’s liberal wing had to dissent because it was absolutely bonkers. And it seemed like the court in the immunity case had not only already immunized Donald Trump from accountability for the events of January 6th by delaying the case so spectacularly, but that in writing this decision, which is a sweeping reappraisal of presidential immunity and presidential power, they were actually laying the groundwork for Donald Trump to become our king dictator if he wins in November 2024. So this is A12 punch, and I want to make that really clear. They already immunized him and that could have been enough. But they were like, no, we’re going to make it possible for him to be the best president slash dictator slash autocrat ever, one who can really dismantle democracy in the way that we are only able to do in fits and starts.
Leah Litman And I think that final case and Melissa’s explanation of it tees up another kind of subset of this lack of accountability theme. And that to me is the court as handmaiden for the Republican Party, which of course would like to make handmaidens of all of us ladies. Again, the Democratic justices tried to warn us that the court’s Republican appointees were in the bag for Donald Trump in the Colorado disqualification case, which we noted. And again, as Melissa explained in the immunity case, their delay gave Donald Trump a effectively pre-election immunity and delaying a trial that was supposed to begin in March. Their decisions in the medication, abortion and Tola case have blunted the prospect of a row vember for this upcoming presidential election by attempting to reduce the salience of abortion, particularly in the case just by doing these weird non persuasive justifications to not to decide the matter. And it’s just again, it’s so apparent. It’s like they repeatedly show their true colors and yet people resist this.
Kate Shaw Another variation I think on the accountability theme is just like criminal law is not for powerful people. Mental law is for everyone else. So think about Trump immunity. Think about Snyder, the public corruption case. Think about Fisher. And of course, at the same time, the court is happy to sanction criminal law being used to lock up the unhoused for sleeping outside. And it’s just like an appalling contrast that first cluster of cases with grants pass the homelessness case.
Leah Litman And another contrast to draw with at least one of those criminal cases. Fisher. You know, Fisher, of course, narrowly interpreted a statute. So it didn’t apply to a group that several Supreme Court justices characterized as protesters rather than insurrectionists and rioters. And the court took a different approach in a civil case against other protesters, specifically actual protesters, Black Lives Matter protesters, and as previous guest on the show and friend of the pod, Jenny Nelson, noted, you know, the court declined to hear McKesson versus Doe leaving in place a ruling that a Black Lives Matter protest organizer might be found liable for the actions of unrelated protesters he didn’t even know, didn’t even instigate, but show leniency to the actual rioters and insurrectionists in Fisher.
Melissa Murray All right. Another theme again, this is really in the weeds a bit, but most of the criminal cases this term were what I think law professors might call substantive criminal law, which is a real change, because historically, a lot of the criminal law docket at the court has been about criminal procedure. So sort of plumbing the expanse of the fourth, fifth and Sixth Amendment. And there were some of these cases this term, obviously, but not as many as there have been in previous years, like so a lot of the cases were really substantive criminal law cases about statutory interpretation and the reach of particular criminal statutes. Fisher is a great example of this, and that has been an emerging trend in recent terms, like the shift from criminal procedure to substantive criminal law and statutory interpretation, which means, not surprisingly, that there is far less activity on the court’s docket with expanding or expounding the nature of defendants rights, although it also means that there is less contraction of defendants rights as well. But there’s a new term afoot, so we’ll see.
Leah Litman [AD]
Melissa Murray Another theme, the dogma that caught the car. So for decades now. A rare. Thank you. For decades now, originalists and textualist have inveighed about judicial lawlessness, and they’ve written academic articles and dissents, and concurrence is about judicial activism. Now they’re trying to make actual law with some of this, and it’s an actual absolute sh*t show. And I think maybe the American public is starting to wake up to the fact that these modes of analysis, modes of interpretation aren’t objective at all. They’re not neutral. They actually are really outcome determinative. And weirdly, they always seem to accrue in favor of people who are not women and women of color and people of color. And basically they just kind of accrue to the favor of conservatives. And I think folks are counting on to that, no pun intended.
Leah Litman Will end in accruing to the favor of conservatives. Basically, the methodology, whether it is originalism or textualism, seems to boil down to, is this result palatable to this group of Republicans on the court in originalism, the separate writings in that case, we’re just like, here’s my take on originalism. Here’s my take on originalism. Nobody knows exactly what strain of originalism we should be doing. It’s like originalism for you, originalism for you, originalism for everybody. Right? And like different variations, there was also the exchanges between Justices Thomas and Barrett on originalism in the Vidal versus Elster First Amendment case.
Kate Shaw Yeah. And I think you sort of had similar dynamics with Textualism this term, which is that for decades, academic textualist and like the scattered, you know, judicial textualist held out the promise that textualism would produce more predictable statutory interpretation, that it would get judicial policy preferences out of the task of judges construing statutes. And I just don’t know how anyone can maintain with a straight face that that is what Textualism has delivered. Now that you have a Textualist majority, like it’s ridiculous. So first of all, you have fractured opinions in cases involving statutory interpretation, where some of the court’s avowed textualist end up on opposite sides of the case. So Campos Chavez is one example. Gorsuch is with the liberals in dissent in that case. And that has happened obviously in lots of other cases. So then you have cases like Snyder, where again, the text of the statute literally says otherwise obstructs or impedes an official proceeding. Nothing to do with this interference with documents or other objects or evidence. And yet these self-proclaimed textualist reach further into the statute, and importantly, that statutory context and history and actual legislative history to decide. There is this unspecified but implicit requirement in the statute that conveniently invalidates this charge and a bunch of other January 6th charges. And last is Cargill, which is I just think that on the messaging point we were talking about a little while ago with the immunity case, Cargill could be, I think, a very effective political tool, which is that kind of textualism in the hands of these goals is a suicide pact. In the same way, originalism can be a suicide pact. So the same way yoking us to, you know, the founding era and understandings that obtained then is just unbelievably destructive to pluralistic democracy. Textualism as practiced by the court in the Cargill case, the bump stock case is just as powerful a deregulatory tool as any of these administrative law cases, and makes it incredibly difficult in ways we’ve already talked about for government to regulate in meaningful ways, including to protect us from deadly gun violence, which is an issue that people care a great deal about. And connecting that to the court and interpretation, I think, could be politically really advantageous. But I’ve seen nothing of that, really, apart from like one day out of the cargo bump stock opinion.
Melissa Murray Okay. A final theme, I think, is this theme that we’ve mentioned a couple of times, not just in this term, but in previous terms. I think it was even more pronounced in this term. And that’s the chief justice in name only. Chino. Right. So we’ve been saying this for a long time, at least since the court’s conservative super majority assembled in 2020 that this is the Roberts Court in name only. This guy is not necessary for this conservative bloc to form a majority, and they spend a lot of time dunking on him. And it was really, really clear this term, the chief justice can’t seem to rein in the most unruly members of the conservative bloc. He certainly can’t curb the extracurricular excesses of Clarence Thomas and Samuel Alito, who continue to pal around with their emotional support. Billionaires with impunity. He can’t seem to get his colleagues to get on board with a meaningful ethics code. So instead, we got that sort of watered down, namby pamby ethics code that was really a code of misconduct. The chief Justice absolutely let Justice Alito dunk on him. In response to Senators Durbin and White House issuing a request to the chief justice to go before the Senate Judiciary Committee to talk about judicial ethics. As we talked about on this podcast, Justice Alito kind of got there first and made his own statement to the Senate Judiciary Committee, which we likened to a kind of jurisprudential cuckolding. But I recently saw some old footage of the Golden State Warriors, and I saw Draymond Green dunk on a player from some other team, and it was really more like that. Like Justice Alito got all up in the Chief justice’s face.
Leah Litman Like, how do you like deez nuts? So I wanna.
Melissa Murray Whoa.
Leah Litman Slightly modify the analogy because I actually think the dynamic is even less favorable to the chief Justice than Sam Alito dunk.
Melissa Murray Less favorable than Draymond Green.
Leah Litman Dunking on. Yeah. So I think the chief justice in this hypothetical is the person who made the pass to Draymond Green allowing Draymond Green to dunk on the Democrats. Right. Because remember there were also letters from the Democratic senators inviting the Chief Justice to meet with them about the ethics crisis and the need for recusal. And the chief justice was basically like, nah, I’m good. Separation of powers means I don’t have to. And if he actually wanted to try to do something to get Sam Alito to change, participating in these meetings, agreeing to appear before Congress, that would be a way of ratcheting up the pressure on Sam Alito and Clarence Thomas. And he does it. And so I have to think it’s because he just doesn’t want to do a damn thing. He’s fine with them doing whatever it is they’re doing. Would he prefer if they didn’t like probably. But like.
Melissa Murray He’s good with the dunkin.
Leah Litman No big deal. No skin off his back. Exactly.
Melissa Murray That’s a really interesting point, Leah. And I wonder how it relates to this other observation, because, you know, one of the things the chief justice has really emphasized in earlier terms was this need for consensus, maybe even unanimity on important cases. And I don’t really think that was present this term. Like there were some unanimous decisions. Trump versus Anderson is one of them, but.
Leah Litman Unanim-ish.
Melissa Murray Yeah. The veneer of unanimity was pretty thin. And you had the Democratic appointees writing concurrency, dissent kind of writings. And Justice Barrett also issued her own concurrence, which was problematic in its way. But what was really shocking to me, and what I expected and what I assumed was happening in Trump versus United States, is that it was taking so long because the chief justice was insisting on unanimity, coming to some kind of brokered compromise that would be narrow and modest and would get the three Democratic appointees on board. And it just became clear that when it counted, he couldn’t get the court to reach a unanimous decision. Maybe he didn’t want a more moderate resolution, but either way, folks really need to stop talking about John G. Roberts as a committed institutionalist because he is not. When it counted it, he couldn’t get to unanimity on this case. He couldn’t broker something modest. He went all out for it. I don’t know if he wanted to or if he just couldn’t do it, who knows? But either way, he’s kind of failed as a chief justice. He’s written three of the worst opinions in the history of this court Shelby County versus holder in 2013, Russo versus Common Cause in 2019, and now Trump versus United States in 2024. A suite of decisions that effectively dismantle the infrastructure of democracy. This is not institutionalist. This guy is the Roger Taney of the modern court.
Kate Shaw You’re right about those three. And I’m just I’m processing, just how uniquely damaging to American democracy that, you know, 11 years of opinions have been. And John Roberts is the architect. So at the very least.
Melissa Murray On the upside, though, yes.
Kate Shaw Yes, I do think that after this term, after the. Unity decision. He is once again going to be on the, you know, co*cktail party invite list that maybe since his opinion NFIB upholding the Affordable Care Act. He’s been on the outs with the conservatives and the Republican Party for quite some time. Do you think he’s back in.
Melissa Murray 100%?
Leah Litman Not in Sam Alito’s good graces. That guy holds a grudge.
Melissa Murray I mean. He’s not going to be at a front table. He’ll be in the back, but he’ll get to come right there. He’ll be in the back there with like, like Tulsi Gabbard or something. Like he’ll be back there.
Kate Shaw All right. So let’s briefly mention a couple of term statistics. And then we will talk about roses and thorns. And I’m just gonna highlight a couple of statistics from the stat review from empirical Scotus by Adam Feldman and Jake Truscott. Look stats are you know, I think of some value but limited value in analyzing the substance of the court’s decisions. But there are a couple of numbers that we thought were notable that we wanted to draw your attention to one. So you had a high number of ideological splits this term that was higher this term than any term, aside from the term that saw Dobbs and Bruen. Also, interestingly, there were 22, six, three decisions, only about half of those split on the predictable ideological lines. But of course, those predictable breakdowns were, in the most important cases, immunity Loper Bright Jarkesy corner, post, Cargill, Grants Pass, Alexander and Snyder. So the fact that some of the six threes were not predictable, I think is less important than which of the six threes were.
Melissa Murray Chief Justice Roberts, Justice Thomas, Justice Sotomayor and Justice Kagan each wrote seven majority opinions. That’s the most this term. Interestingly, it seems that Justice Alito probably lost not one, but two majority opinions by being extreme and strident. So there was the retaliatory arrest case, Gonzalez versus Trevino and the First Amendment social media case net choice, which was really two consolidated cases in net choice. It seems clear that he had the initial assignment, but that his opinion likely repelled votes. And Justice Kagan.
Leah Litman Was it his opinion or him that was repulsive?
Melissa Murray Hard to say. Hard to say, what does seem clear is Justice Kagan’s approach seemed to attract some of those who were repelled by the Alito approach. And so Justice Kagan came to write the majority opinion in the net choice cases in Gonzalez. I think it’s also quite likely that his opinion repelled those who had initially voted with him. And instead of the opinion going to someone else, it just became a kind of per curiam opinion. Probably because they were so jammed at the end of the term with all of the other things that they were getting out. But I have to say it seems a little humiliating if he is even capable of shame.
Kate Shaw Unclear.
Melissa Murray But presumably the chief writes that separate per curiam because your opinion is just so terrible.
Leah Litman I mean, like, I think these examples underscore that when the justices care about law, they just cannot rely on Sam Alito. Right? He cannot do that.
Melissa Murray And so just a court is so yeah. Well say preach. Yeah. Yeah.
Leah Litman Just to kind of briefly recite the evidence for these propositions. So he ended up with four total opinions this term. The lowest number, all of the other justices had 6 or 7, except for Justice Jackson, who had five. But she is the junior most justice. So it’s not surprising she would have a lower number. And he did not offer any majority opinions in either February or March sittings when both Gonzalez and net choice cases were argued, though other justices authored two opinions from those sitting. So that’s kind of where we’re getting this.
Kate Shaw Oh, it’s it seems pretty clear to me that this is what happened. And, you know, he got a lot of what he wanted this term, but I hope you at least feels bad for himself.
Melissa Murray Yeah. I mean, I think it’s clear he’s not your go to for a law opinion is your go to for a vibes opinion.
Kate Shaw Yeah. Correct. A couple of other stats Thomas and Jackson each wrote the most concurrence is with 11 written concurrence is each. That’s so.
Leah Litman Funny because I would have guessed Brett Kavanaugh just from how painful it was to.
Melissa Murray Read all of them. It did feel like it was 100. Like three, actually. It’s not like three.
Kate Shaw It’s it was. No, it felt like so many. They were so terrible. But yeah, it turns out he actually didn’t write that many.
Melissa Murray That’s how I feel about slam poetry generally.
Kate Shaw It feels long. Yes. Sotomayor and Jackson wrote the most dissents. With seven each. They wrote some incredible dissents. This term, we have to say, like, truly incredible. I mean, their each of their dissents in the immunity case were like extraordinary writings and should be taught. And I hope one day will be law. I can dream.
Leah Litman Quick. Round of roses and thorns. First I’ll offer up something that is both a rose and a thorn for me, which is the country. Got to know the alito’s better. I think this is generally good, right. To understand the Supreme Court such that it is, they too got to see Samuel Alito’s rigorous reasoning up close. On the other hand, I would prefer that this was not necessary for the country.
Kate Shaw I have a question. There was a really interesting study a few years ago about Supreme Court name recognition, and Sam Alito was by far the least recognized. People didn’t know.
Melissa Murray Not anymore.
Kate Shaw People didn’t know his face. I really want somebody to rerun that now, because I do think and do hope that Americans are finally on to the existence of one Samuel Alito.
Leah Litman Yes.
Kate Shaw So that’s a rose, if they are.
Leah Litman Yeah.
Kate Shaw Because I can’t imagine it’s good news if more people get to know him better, right? It has to be. That has to be helpful to us.
Melissa Murray I think part of this reintroduction of Samuel Alito to the American public is that we really get to see his rigorous reasoning up close and personal. So that trenchant legal analysis, like my wife is fond of flying flags and she has a legal right to do so. And David Rifkin was wearing his journalist hat in this interview, even though he’s also a lawyer in the big constitutional tax case. And we talk for hours and hours about the court’s jurisprudence. You know, those were real zingers, and I’m glad America had the chance to see that great legal mind at work.
Leah Litman Indeed. Another rose thorn would be, for me, Solicitor General bloggers, righteous indignation during the argument and Justices Sotomayor and Kagan doing the same. I think Justice Jackson brought a similar energy to Rahimi, the Second Amendment case, in raising serious questions about the Bruen methodology. More generally, I enjoy in both Justice Jackson and Justice Kagan, kind of going at Sam Alito in different arguments. Again, like, these are small roses. They are mostly thorns for the fact that it is unnecessary. I do want to say something about, you know, I, I have seen people calling for the Democratic appointees to do more like they want to them, in addition to writing these dissents in the immunity cases to like, I don’t know, like go do a television interview saying Sam Alito is a corrupt mofo and we need to get him off the court. And, you know, I understand the impulse to want political leaders to do more. And I think in some respects they could. And yet I just don’t know that they are the kind of campaigners against the court who would be best positioned to kind of relay that message, like, that’s not their expertise. So I just don’t know, like I would personally prefer other people to be doing that. Final entry is a thorn for me, which is every separate writing from Brett Kavanaugh.
Melissa Murray I’m not going to reprise my Rahimi concurrence as data as poetry in this term recap. But I do think that that actually setting to a little bit of percussion, some of Brett Kavanaugh’s writings was a rose for me this term that we discovered. And I think that we’re going to kind of continue to.
Melissa Murray You’re welcome.
Leah Litman FERC bitch. FERC bitch. Jarkesy.
Kate Shaw Oh that’s right. Oh that’s right.
Leah Litman You got FERC’d bitch.
Kate Shaw That’s right. We had FERC set to music by one of our listeners. Was that Jarkesy? Oh my God.
Leah Litman No, this. And he was just like listing off agencies.
Kate Shaw No, I remembered.
Leah Litman Brian Fletcher and Brian Fletcher’s listing all of these. And then Justice Kavanaugh just interjects FERC.
Kate Shaw I was actually listening to that that for a while. And when our when our great listener sent it over and it’s and I’ve forgotten about it, but I will have to pull it back out of the vault as I am trying to assuage my end of term sorrows. Maybe that would be a good soundtrack. Okay, I have one rose I wanted to mention, which is that Snider, I think is an appalling opinion, but I think there’s something very valuable in the court, making it so clear that it’s antipathy for anti-corruption statutes is motivated by self-preservation. I think that was always implicit. And I think after that decision coming, sort of bookended by the revelations that we started this episode, talking about, I think makes it impossible to miss that that is driving the justices. And I actually think that is clarifying and useful for the public to know.
Melissa Murray Okay, this is such a f*cking downer. Like we’re literally like, you know, what’s a rose that we now know that they’re really corrupt and everyone else knows it too.
Kate Shaw Yes, that’s what we’re working right now, Melissa.
Melissa Murray Well. So on that, on that tip, I also want to say my additional Sneider Rose was KBJ’s amazingly sub tweet dissent in Snyder, where she kind of pointed fingers in a very subtle way at her colleagues Clarence Thomas and Samuel Alito. She said, quote, officials who use their public positions for private gain threaten the integrity of our most important institutions.
Leah Litman Oh, that wasn’t even the most sub tweety line. It was like, the court’s a textual and absurb reading is only one this court could love. .
Kate Shaw Only this court. Yeah, that was great.
Melissa Murray Also good. But I mean, she started off with a banger and I appreciate that.
Kate Shaw Yeah, that was great.
Melissa Murray Other roses for this terrible term?
Kate Shaw I’m going to say this and I know you guys are going to push back and that is fair. So I’m saying it in a qualified way.
Melissa Murray Is this about The Little Mermaid?
Kate Shaw I just I there have been very very slight signals of Barrett moving ever so slightly out of lockstep with the male conservatives on the court, and I am noting those. I am not saying Amy Coney Barrett will save us, but she did have a pretty rip roaring dissent in Ohio versus EPA. She had a pretty strong dissent in Fisher.
Melissa Murray So I. I’m intrigued. I’m intrigued by her. I like that she’s finding her voice. I’m glad that the sea which gave it back to her, I think her concurrence and that footnote and Trump versus United States was really important. Like when she said, you know, I would not go so far as to say that immunized actions cannot come in as evidence to establish actions that are not immunized from prosecution. I thought that was really important. And she kind of was like, these dudes are crazy.
Kate Shaw I mean, it may be as important.
Melissa Murray But at the time.
Kate Shaw But it’s a six vote and so it’s f*cking you. Honestly, it’s pretty useless to my mind. I was actually.
Leah Litman How I would also characterize the dissents is pretty f*cking useless, underscoring that in A63 supermajority Republican court. Right. Like it doesn’t matter, right? Like Brett Kavanaugh peeled off and Sackett, Justice Gorsuch in federal Indian cases. And it just ultimately doesn’t matter. And a part of me wonders whether they would do it in five, four cases. But even aside from that, like, I want to, like, contextualize and like minimize any impulse to treat her as moderate. Again, like we can find an example of Brett Kavanaugh, we can find an example of Neil Gorsuch and just consider some of the other things Justice Barrett has done. She joined the other portions of Trump. She was with the court in darkest and lower. Bright was there in Dobbs sphere. Kennedy, Bremerton major questions cases.
Melissa Murray She wrote Corner Post.
Leah Litman It’s just like these slight little like, you know, I don’t know around the edges is.
Kate Shaw I think that’s right. In terms of what what we’ve seen it for. And I think also like throw, you know, the chief justice in occasionally demonstrating some reasonableness. So I think all everybody on that court apart from.
Melissa Murray Thomas, we just said we were going to stop that.
Kate Shaw Everyone on this court occasionally has like flashes of reasonableness apart from Sam Alito and Clarence Thomas. And we know now Barrett is in the mix whether those are going to be more frequent or more meaningful than the kind of what we see as flashes from Gorsuch and Kavanaugh, like, I think very much to be determined, but I’m not sure we even had seen the flashes until now. And so I think it’s at least worth observing that they do exist, like how she develops as a jurist. Like, I’m not optimistic, but I don’t think it’s impossible that she will sometimes join the Democratic appointees, and that at least we’ll create a real optics issue, which could have happened in I.
Melissa Murray Feel like I’m going to stop you. I’m going to stop you. Do you remember that time when she joined the three Democratic appointees in the Andersen case, the Colorado disqualification, and she joined them for, like five seconds, and then she’s like, excuse me, ladies. Like, it’s really important for us to not be strident harpies like our men are talking.
Leah Litman To smile more as the court dismantles democracy. Yeah.
Melissa Murray Yeah, yeah.
Leah Litman No, she her. Her vote there, I think, mattered less than her. Like a kind of nasty gram of a separate writing directed at the Democratic appointees.
Melissa Murray Yeah.
Kate Shaw Just feels like there is a sliver of hope on some issues with her. But, you know, like, she’s not going to save anything.
Melissa Murray Okay, on that note, I have a thorn. I’ve already talked about how the immunity decision is A12 punch. Like, we delay and we immunize them from January 6th, and then we lay the foundation for him to be a freaking dictator as president. So that’s great. I just want to go back to the point about the evidence part of the ruling. So one of the, I think most important parts of the ruling, a piece that I don’t think was well ventilated in mainstream media, was that the court held that conduct that is immunize like so, for example, talking to the Department of Justice, you cannot use evidence of that immunize conduct to establish conduct that is not immunize and therefore subject to prosecution. So you can’t even bring it in as evidence. And that obviously hamstrings the prosecution in enormous ways. Justice Barrett, as I just said, peeled off from that part of the majority’s opinion and said that she did not join, that she thought the court had gone too far. And that made it a five for holding for that point. If Justices Thomas and Alito had recused, as they probably should have because they have some insurrectionist. Adjacent interests. There would have been no majority there. Yeah. If only one of them had not participated, there would have been no majority there. And that’s all I want to say.
Leah Litman Yeah. So, sorry. You, I need two more thoughts just quickly, like, another aspect of the community decision that I don’t think has been adequately covered is related to this, which is another limitation on the evidence, where they say you can’t probe the official act, by which they mean you can’t actually inquire into motives or go into the deliberations. And that just effectively means you cannot establish a guilty mind. Right? The literal mens rea for for a crime, all you can do is say there was a coup or there was a pardon, but you can’t actually establish the bribery or anything else.
Melissa Murray So I mean you, you, you the pardon is immunize anyway so you wouldn’t be able to talk. Yeah.
Leah Litman Yeah. so and then the final thorn.
Kate Shaw Well I don’t know, not everybody agrees that a pardon for money is immunized. That’s an open question I think.
Leah Litman Well, but but I think like even if, even if right, they don’t say that is an exclusive presidential authority and it’s just the presumptive immunity. You can’t introduce evidence as to motive. And so.
Kate Shaw I’m just not willing I’m just not willing to concede that even before that, that it’s that it’s absolutely immunized because it’s an article two power.
Leah Litman I think. Justice Sotomayor, I think Justice Sotomayor made a point where she’s like the courts, a second category by being so expansive, basically vilifies the important stuff. The first. And so it just doesn’t matter. Yeah. And then the final third. Right. Yeah. The final thorn is the court’s just extremely cynical, obvious ploy to duck the issue of abortion and reduce its salience in the upcoming election, knowing full well that there is a very strong possibility they are just going to unleash absolute terror in the future and a case or other matters if and when they come back to the court, whether in a future Trump or Biden administration. So, okay, this has been a joyful, look back. Let’s look forward to the plan for the summer. There are still going to be regular weekly episodes, but with the court out of its regular schedule of hearing cases and then not deciding those cases until the very end, our coverage is going to be a little bit different. So there are a million different things we could cover. But we just can’t do them all. And in an effort to give ourselves a little bit of a summer vacay, we’ve cued up some evergreen content that we’re excited about. Some of this is going to be on the more lighthearted side, some will be more serious reads and book talks. We hope you enjoy all of it. We’re very excited about it.
Melissa Murray We don’t think any of it is going to make you want to bash your head against a window. So it’s going to be a different vibe podcast.
Leah Litman Well, that’s a lovely endorsem*nt. Strict scrutiny summer won’t make you want to bash your head against a wall. Tune in, kids.
Melissa Murray Because we won’t be covering this court, so.
Kate Shaw We won’t, no. That that was. That was not a damning with faint praise there. We have great conversations, some of which we’ve already had, some of which we have scheduled also on important topics things like state courts, the courts, criminal cases, originalism. What else do we have?
Melissa Murray That’s a one of the humor episodes. The original. It’s a comedy episode.
Leah Litman Let’s not let’s not give away too many more, okay?
Kate Shaw Okay. We have we have. We have great content. And it will not make you want to bash your head against the wall. So stay tuned for all of that.
Melissa Murray Like this term.
Kate Shaw All right.
Melissa Murray That’s all I’m saying. This term was a banger in many different ways. Some literal. Yeah.
Kate Shaw Giving new meaning to the term banger.
Melissa Murray Banger.
Kate Shaw Yeah. All right. We will leave it there. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray, and me Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Our interns for the summer are Hannah Saraf and Tess O’Donahue. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production and thanks to our digital team, Phoebe Bradford and Joe Matuskey. Subscribe to our Strict Scrutiny YouTube channel to catch full episodes. Find us at youtube.com. Forward slash strict scrutiny podcast. And 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.
