← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Supreme Court’s Charm Offensive
00:36:49
Three out of nine justices really want you to know they are not partisan.
Loading summary
Transcript36 lines
- [00:05]
A
And I just think the justices maybe like, got used to working those muscles and litigants, saw how successful the Trump Justice Department was in getting the court to intercede in a lot of cases and said, well, we should try it.
- [00:17]
B
If the court moves in the direction that I imagine that we expect it to, which is to strike down the New York gun control law, it will dramatically reshape the landscape of Second Amendment rights.
- [00:28]
C
The court doesn't have the authority to enforce its own decisions. The court gets its authority through people accepting the court as a legitimate institution and believing the court is engaged in law rather than politics. And if people no longer believe that, they lose their power.
- [00:51]
D
Hi and welcome back to Amicus. This is Slate's podcast about the law and the courts and the rule of law. I'm Dalia Lithwick. I cover the courts and more at Slate Magazine. And this episode of Amicus was recorded in partnership with the 2021 Texas Tribune Festival, a virtual experience from September 20th through the 25th that offered big thinking interviews and nuanced discussion on all the topics you care about most. You can learn more@tribfest.org and we're going to be talking to some of my just most favorite court watchers for a fast PA panel that will set you up to understand the Supreme Court term that is about to begin and the hugely consequential summer we have just had. Now, later on in the show, Slate plus members will hear our bonus segment with Mark Joseph Stern where we unpack some of the issues we couldn't quite reach in the main show. And sometimes we let rip just a little on some of the things we did talk about in the main show, but showed better judgment than to say, this week the extras are going to be the continuing presence at the Federalist Society of the man who literally tried to make the coup sound constitutional to Mike Pence, the three justices who are on a charm offensive and why. And we're going to take a look at some of the amicus briefs that have been filed in the big Mississippi abortion case. Dobbs if you would like to access that conversation with Mark but you're not a Slate plus member, go to slate.com amicusplus to find out how to join us. It's only a dollar for your first month, and Slate plus memberships helps support all of the journalism that we do here at the magazine. So not only are you getting exclusive bonus content and ad free shows, you're also getting our eternal undying gratitude. Serious thank you Slate plus members. Okay, first, let's head to our All Star panel held virtually in Texas. We called this discussion on the bench and it's hard to think of a better time for a deep dive into the doings at the US Supreme Court. With the first Monday in October right straight ahead of us and a very high octane spring and summer still sending shockwaves through the entire country, I cannot think of a better or more fun panel to take that deep dive. Enjoy. I want to welcome our friends who are listening in at Amicus. I want to welcome more friends listening in at Strict Scrutiny. If you're a court watcher, you already probably have a huge crush on the Strict Scrutiny podcast where these three brilliant women break down what's going on at One first street like nobody else does. Each of them is probably well known to our Amicus listeners and probably to all of you if you watch or listen to or consume any news about the court. We are racing against the clock. There's so much to talk about. So their incredible bios are absurdly compressed for our purposes and I apologize. That's on us. Leah Littman is an Assistant professor of Law at the University of Michigan Law School where she teaches and writes on Constitutional law, federal courts, post conviction review. Her writing appears absolutely everywhere and in addition to co hosting and co creating Creating Strict Scrutiny, Leah also co created Women Also Know Law, a tool for promoting the work of women and non binary academics. Leah, welcome.
- [04:30]
C
I'm so excited to be here.
- [04:32]
D
Melissa Murray teaches at NYU School of Law and co directs the Birnbaum Women's Leadership Network. She is a frequent contributor at msnbc. She's also co author of Cases on Reproductive Rights and Justice that was the first Reproductive Rights and Justice Casebook. Melissa Murray, welcome.
- [04:51]
B
Thanks for having me. It's great to be back here deep in the heart of Texas on Zoom.
- [04:56]
D
Kate Shaw is a Professor of law and co director of the Florsheimer center for Constitutional Democracy at Yeshiva University, where she focuses on executive power, federal courts, and election law. She also served in the White House Counsel's Office as a special assistant to the President. She is a contributor to ABC News. Kate, good to see you.
- [05:18]
A
Great to see you, Dalia, Great to be here. And we should say you've been showing us how to do this work of commenting on the Supreme Court for a long time. So it's terrific to be here with you.
- [05:24]
D
Well, thank you. It is, I think, fair to say you all will check me if I'm wrong, that this last summer has been kind of unlike the summers. At least I got Used to where kind of aging justices fly off to Europe and teach arcane courses and the court kind of goes on screensave for the summer. Last term was momentous. The summer has been momentous. The term ahead of us may be history altering. This is an immense amount of ground we're going to try to cover in 27 minutes. So I thought we could just jump in and maybe we can start with the term that just ended in or nominally ended at the end of June 2021. There were a lot of dogs that didn't bark. Leah Amy Coney Barrett swapped out for rbg. The court didn't hand the election to Donald Trump. It didn't overturn the Affordable Care Act. It garnered a of end of term plaudits for being a very centrist, unanimous, reasonable court. Is it fair to say that actually not that much has changed from a court that went from 54 conservative majority John Roberts at the center to the 63 conservative supermajority court with Brett Kavanaugh at the center? Or has this been just massively misperceived?
- [06:43]
C
I think it's a massive misperception and I think we saw that in the term that finished even before we saw all of activity over the summer on abortion, the CDC eviction moratorium and other issues. So the last term which we had covered saw the court basically enjoin coronavirus public health measure after public health measure on religious liberty grounds and do so on the court's shadow docket, which as a matter of convention required five votes or six votes if they were summarily reversing opinions. And those decisions wouldn't have been possible if John Roberts was still at the median of the court. He joined the more liberal colleagues dissenting from some of his more conservative, aggressively conservative colleagues efforts to quickly change the law on religious liberty. So I think the idea that this past term was a moderate centrist court is a very bad misperception and ignores how the court also changed the law, not just on the shadow docket, but also in some of the cases that flew under the radar and shouldn't have. Like when the court massively altered the scope of federal takings law and suggested that any time governments allow inspectors or people onto property for three hours a day, less than half of the days of years, all of a sudden that's a taking that requires compensation. And we saw that reverberate in the decision striking down the CDC eviction moratorium. So they did a lot last term. It's just for whatever reason people said, well, because they didn't do the most crazy things they could have. I. E. All of the things that Sam Alito wanted to do, they're moderate, but that is not the relevant comparison.
- [08:28]
D
So. So, Kate, I want you to just unpack the shadow docket because not everybody who's listening knows the distinction that Leah very, I think, correctly points up when we look at those end of term statistics that come out and they say, well, you know, these were the 57 cases that were decided. This is how many were eight to one. You know, it sure looks as though this is a, you know, a court that's in massive agreement about virtually everything. And look at these unlikely bedfellows. So we have to graft onto those numbers, these shadow docket numbers that Leah's talking about. And I'm always careful because the word shadow docket sounds so pernicious and creepy. Right. It's very Halloweeny. I wonder if you could just help explain to folks for a quick little minute what happened on the shadow docket, how it's being used differently and why it is that even some really scrupulous court watchers don't take those numbers into account.
- [09:29]
A
And I think you're right, that shadow docket sounds kind of nefarious, but I'm actually okay with that at the moment because I think that the court's use of it, especially in the last year, has been nefarious and should be deeply troubling to anyone who cares about transparency, accountability, democracy, any of these values. So basically, just definitionally, the shadow docket just describes cases that the court disposes of outside of its ordinary decisional process. Normally a party seeks cert. The court agrees to take up a case. You know, used to be, well, it used to be hundreds a year. More recently it was 80 or 90 a year. In the last couple of years, those numbers have been really declining. So it's 50 or 60 cases a year in the last couple of years. And at the same time, we've seen this increase in the court disposing of cases outside of that ordinary process, which again, involves a cert grant and then briefs filed, oral arguments, extended negotiations and discussion, you know, behind the curtains inside the court, and then a public decision that everyone can read and agree with or disagree with, but at least sort of understand. So the shadow docket often involves, well, always involves, you know, not that full sort of suite of actions. It does involve briefing, so written briefs get filed, but it doesn't involve oral arguments and it sometimes doesn't, sometimes doesn't result in a written opinion giving reasons so the court decides on an expedited basis whether to grant injunctions and stays and other kinds of what we call like emergency relief, and sometimes does it in hugely consequential cases. Now, it has done this really always, but it has not done it with the frequency and the kind of broad impact that it has done in the last couple of terms. So this, the shadow docket activity really spiked during the Trump administration when the Trump Justice Department came to the court, this conservative court, not as conservative the whole time as it is now, but still always conservative court, seeking relief from the lower court injunctions that were issuing left and right, because the Trump administration engaged in a lot of sloppy and lawless activity that the federal courts put a hold on. And the Supreme Court often granted emergency relief, restoring the status quo that the Trump administration sought from the court. So, you know, the numbers compiled by our friend Steve Laudick on faculty at the University of Texas show that the court issued 28 orders at the request of the Trump administration on the Shadow docket in four years. Compare that to four such orders in the 16 years of the George W. Bush and Obama administration. So it's just an unbelievable increase. So that's the federal government seeking and getting this extraordinary assistance from the Supreme Court outside of its usual processes. And I just think the justices maybe like, got used to working those muscles and litigants. So sometimes private parties, sometimes states saw how successful the Trump Justice Department was in getting the court to intercede in a lot of cases and said, well, we should try it, and have met with pretty receptive audience from the Supreme Court. So the court just in the last year has issued seven injunctions of what Leah was describing, these coronavirus restrictions issued by state and local government officials on religious liberty grounds. That's just a staggering number. The court has interceded to put back on the calendar executions that had been stayed by lower courts. The court has interceded in a number of other areas, but in an incredibly sort of uneven, inconsistent and selective way, stepping in to protect certain kinds of constitutional rights like religious liberty, but conspicuously failing to do so in the context of other kinds of constitutional rights, like the right to abortion, which I imagine we will get to at some point.
- [13:01]
D
And we are going to get to the constitutional right to abortion and Texas's SB8 right after this short break to hear from some of our wonderful sponsors. And now let's head back to on the Bench, an amicus panel with the hosts of strict scrutiny at this year's Texas Tribune Festival. And as we are virtually in the heart of Texas, we're going to tackle the Lone Star State's SB8 legislation, the one that effectively overturned Roe v. Wade in that state earlier this year. I'm going to say it's not an overstatement to say, Melissa, you'll check me if I'm wrong. This has been the Supreme Court story of the summer. And let's note, I mean, Leah already said we had the moratorium eviction. We had remain in Mexico. It's not like the court was not very, very busy this summer. And yet SB8 and the courts in this case, failure to redress it in late night orders on the shadow docket has turned into a pretty seismic, I think, story about what the court is and is not doing. Melissa, I want you to explain SB8, but I also maybe want you to do it through the lens of a lot of folks defend the court and say, look, they didn't jump in. You know, everything that Kate Shaw just said about the court being lawless and activists and reckless. I mean, maybe it's a good thing that they didn't jump in and do something with sba, but I think maybe set the table for a moment. I'm sure most of our listeners know exactly what happened in Texas in the last couple of weeks, but give us a quick overview and then tell us what the court did.
- [14:45]
B
So let me just say that you're right. This was surely the story of the summer, although it was vying against a number of other stories, including why hasn't Justice Breyer announced his retirement? So let's bracket that one. So SB8 is a Texas law. It was passed in May, and it's an unusual law in that unlike other abortion restrictions and there have been a number of increasingly restriction abortion laws passed throughout the country, likely because of the change in personnel at the court, abortion opponents imagine that they will receive a more hospitable reception with this currently constituted court. In any event, the problem with those really aggressive laws is that they're patently unconstitutional because many of them restrict abortion before viability, which the Supreme Court's precedents in Roe v. Casey say you cannot do if you are the state. And typically when these laws get passed, they are immediately challenged by abortion providers and almost immediately enjoined by the lower federal courts. But typically what happens with those laws is that the person that you sue is the state official who is charged with administering the law or enforcing it. And so in Roe vs Wade, Wade was Dallas District Attorney Henry Wade. Texas has done something that is almost fiendishly Clever. And I don't use the term clever in a good way, but like in a really pejorative way. They have actually taken the state out of the enforcement business here. And that's specific in the statute. The state is not available to enforce this law. And instead what Texas has done is delegated the enforcement of this law to private individuals. So any private citizen in Texas is offered a cause of action to sue a provider for providing an abortion, or alternatively to sue someone who has aided or abetted someone in seeking an abortion or providing an abortion. So it is a completely privatized enforcement scheme, and it was done purposely to avoid federal court review. Because you don't have a state official who's available to enforce the law, you cannot bring a pre enforcement chart or pre enforcement challenge against the law. And in abortion litigation, stopping the law from going into effect is actually the name of the game. Because if the law is allowed to go into effect, what likely happens is that providers are forced to shut down. And even if the law is later determined to be unconstitutional, as this law surely will be, it's too late, because the providers, once they go out of business, usually cannot resurrect themselves to come back and get back online afterwards. So Texas has done something that no one else could do. It figured out a way to stop the providers in their tracks and to do it in a way that insulated those laws from federal court review. And the Supreme Court, in that late night order on September 1st, essentially blessed it. And we've never seen anything like this. They did it on the shadow docket. And although people say this is a nothing burger, they didn't jump in. It's just a procedural decision. They know we know that that procedural decision has massive substantive implications. And what the court did was allow a patently unconstitutional law to go into effect restricting reproductive rights for women in the second most populous state in the country.
- [18:02]
D
And Leah, a quick follow on, if I might, which is simply, and I know this is a moving target, but the Biden administration has tried to do the thing that the court made impossible by jumping into this. We're now, I guess, all waiting for an October hearing on the Biden administration's motion, but is it your sense that whatever it is that the federal government has done to try to intervene in the standoff that Melissa's describing, where a court simply, the Supreme Court simply said, sorry, we know it's unconstitutional, nothing to be done, best of luck, we've got clinics closed. We've got providers no longer providing services after six weeks, we're in a real staring contest. How does the Biden administration's effort to move this forward look like it's faring?
- [19:03]
C
I think there's a way in which it is successful and a way in which it's not. It is successful because we are still talking about the fact that the Supreme Court allowed Texas to effectively ban most abortions in the state. I mean, gosh, if we all just forgot about that after September 1st, that would be a real problem. And the second way in which I think it is successful is this lawsuit. The way it is structured does address the ostensible problem that the Supreme Court said there was with the abortion providers lawsuits against the various state officials, which is the abortion providers had to name specific state officials since they couldn't sue the state for enacting an unconstitutional law. But the United States can. They can sue the state and seek an injunction against any possible state official, including judges and clerks who might be involved in the enforcement of this law. So I think in that respect, it's successful. In other ways, less so. I mean, the reality is, is that every single day, every Single day since September 1st, there will be some people in Texas who cannot get abortions so long as SB8 remains in effect. People who are more than six weeks after their last period and aren't able to travel to another state or they're not able to get an appointment in another state during the time window in which those states would allow them to have abortions like this is every day there are harms that are never going to be cured no matter what happens with this lawsuit. And second is, I think the reality is, given what we saw this Supreme Court do with the abortion providers lawsuit, as well as, frankly, what they've done in other cases, I think it's extremely unlikely that they will resolve this case based on what I thought to be a pretty general legal principle that the United States has an interest in ensuring the supremacy of federal law and the United States has an interest in securing people's constitutional rights under settled constitutional law. I don't think they're going to enforce that principle with respect to abortion rights. And so in that respect, I don't necessarily think this lawsuit is going to be the bullet that fixes, you know, harms that might continue into the future.
- [21:17]
D
I want to ask all three of you what's going to feel like a semi gossipy question before we turn to the term that's coming. And you can just roll your eyes or wave your hands if you want to take it. But Melissa's Already noted that one of the hot topics of debate in Supreme Court land is Justice Breyer's failure to retire. It has to come coupled with his charm, initiative. I don't know what show he has not been on talking about the Court being apolitical and nonpartisan, but he's joined by some unlikely bedfellows. Amy Coney Barrett just gave a big blockbuster speech in which she said, we're not partisan political hacks and moreover, blame the press for the narrative that the Court are political. And Clarence Thomas took to the hustings to make the same speech. Court is not political. It's the other branches that are political. We're just doing law. And I have to ask all of you, what it says signals that in September alone, in the weeks leading up to first Monday, we have a third of the Court both doing the things that Leah started with on the shadow docket, more often than not entering an incredibly politically hot term. And a third of the Court is out there waving their hands, telling us that they're not political. I don't know quite what to do with that. Who's waving their hands to answer why, it looks like you, Keit Shaw.
- [22:40]
A
Okay, well, we. I'm sure. I'm sure you're gonna shut us up on this topic.
- [22:44]
C
I will just.
- [22:44]
A
I will. I will limit myself to a couple of observations. One, so I'm sure we all saw this week, Quinnipiac had a poll out on lots of topics, right? Like masks and vaccine mandates and other things, but did ask about scotus. And most Americans are not impressed with the Supreme Court right now. Right? The worst approval number since Quinnipiac started asking this question in 2004 came out this week. So SCOTUS has 18, a 37% approval rating among registered voters right now and a 50% disapproval rating. And I think the justices notice this and care about this. And so I think we are hearing some kind of response from the justices, which is pushback. So I think the reason Americans are disapproving is because the Court appears to be nakedly partisan in some of these decisions or, you know, the selectivity with which it will render or withhold decisions in certain kinds of cases. And so I think that. That there is an important takeaway, which is that the Court pretends it's insulated from politics, it does care about public opinion, and it is pushing back. And I think that means that it matters what we think about and what we tell pollsters what we think about the Supreme Court. And the thing I'll say about I am just. I'm deeply frustrated with Justice Breyer. Some of Justice Breyer's statements in the kind of media blitz over the last couple of weeks, even before the substance of the statements. I find it frustrating that I'm not suggesting he's staying on the court to sell books or anything, but he's written a book. I haven't read the book. Leah's read the book. She may have thoughts on the book, but I'm not sure he's getting booked on all these shows about the book if not for the swirling questions about will he or won't he. So in a way he is capitalizing on the suspense in a way I find really troubling. And I'll let my co host weigh in on Barrett, Thomas or any of the above if they have other thoughts, as I know they do.
- [24:22]
B
The whole question of whether and when Justice Breyer will step down is reaching LeBron James like proportions. I don't think I've ever seen anything like this since LeBron James debated leaving Cleveland and then returning.
- [24:36]
C
I too think Justice Breyer should take his talents to south beach or Miami.
- [24:40]
B
I mean, for whatever it's worth, Duane Wade will surely make a place for you, Justice Breyer, if you just ask. But you know, to the point that you have Justice Thomas and Justice Breyer and Justice Barrett weighing in and all, disclaiming this notion of partisanship. You know, I get it. The Quinnipiac poll is certainly part of it. The increased and more vociferous cries for court reform is likely also part of it. But I think the Court should really think about the messaging and the optics of how the messages are delivered. It takes real chutzpah to stand at a podium and say that the Court is not political when you are making that statement while flanked by Senator Mitch McConnell, who's probably done more than any other individ in recent history to actually politicize the confirmation process. So wow. That the optics of that were stunningly, stunningly poor. Likewise, Justice Thomas at Notre Dame made statements about the Court not being political. And this is an individual who, in separate writings that are public, has said that he is uninterested in stare decisis when it requires observing and providing deference to decisions that he believes are demonstrably erroneous, which is at bottom a judgment call to some degree. And so these two may not be the best spokespersons for this message.
- [26:04]
C
Justice Thomas and Justice Barrett are the guy in the hot dog suit meme, right? Like we're all trying to find the guy who did this. I mean, the idea that Justice Barrett would say the court isn't political after being introduced at a center named for Mitch McConnell is an insult to the intelligence of every sentient being on the face of this earth. But the two of them, Justice Thomas, Justice Barrett as well as Mitch McConnell, it's in their interest for the Court to be viewed as legitimate because, you know, as academics and scholars have explained, the Court doesn't have the authority to enforce its own decisions. The Court gets its authority through people accepting the Court as a legitimate institution and believing that the Court is engaged in law rather than politics. And if people no longer believe that, they lose their power and they're now in a position to again give Texas the keys to ban abortion and do all of the things they have been itching to do. So, of course they are going on this PR campaign to say, let us do all the things we want. And I think that's how people should understand it. As for Justice Breyer, I mean, that guy is frankly high on his own supply. I don't know what he is doing. But, you know, I understand he wants the Court to be legitimate. I understand that he wants the Court to act legitimate. I do not understand his releasing a book about how the Court is completely apolitical on the same day, the same day that the Supreme Court allowed Texas SBH to go into effect and then to continue his book promotion tour afterwards. Not a great look, Steve.
- [27:44]
D
We will be right back after these messages with a preview of what's coming down the pike at the high court this coming term. Now let's head back to our Supreme Court podcast supergroup panel discussion with the hosts of Strict Scrutiny that we taped as part of the Texas Tribune Festival. Kate, let's do a speed round on what's coming. The court, we should be clear, actually has not set oral arguments for absolutely everything that's coming down the pike. We don't actually have a date yet for when Dobbs, the Mississippi abortion case is going to be argued, but can you just give us a quick. We know guns are coming for sure. Abortion is coming for sure, and possibly affirmative action. Can you pick one of those three and we'll just bump, bump, bump through all three of you and see if we can get a preview.
- [28:36]
A
Sure. I'm happy to start with Dobbs, the Mississippi abortion case. So this is a case in which there's a more traditional abortion ban and one that that kicks in later in a pregnancy. So 15 weeks rather than six weeks since the last menstrual Period, and one that is enforced in the traditional fashion. We should say to your first question, Dalia, about, you know, how much the court has really changed. I think you can see in the briefing that Mississippi has filed in the Supreme Court, some of which preceded Justice Ginsburg's death and some of which followed her replacement by Justice Barrett, just how dramatically the legal landscape has changed. So Mississippi files a cert petition saying you don't need to overturn anything, but let us keep our 15 week ban in effect because you could, you know, rethink the standards you have set forth in previous cases. The court sits on this petition for months and months and months, gives Justice Barrett a chance to kind of get acclimated to chambers, put her paintings up, et cetera, and then they grant the case in May. And by the time Mississippi is filing its merits briefs, it is saying burn it all down, obviously overturn all of the precedents. So Mississippi understands it's talking to a totally different court than it was when was it filed its cert petition. And so, you know, as you said, Dolly, we don't have a date yet, probably December. But I think that, you know, and yet even with Mississippi on the horizon, the court couldn't put the brakes on in Texas to just decide the Mississippi case first without letting this flagrantly unconstitutional Texas law go into effect. And so that's obviously a huge one. I think by the end of June, you know, Roe may well no longer be the lawless land. I think very likely will no longer be the law of the land, whether formally or functionally.
- [30:08]
D
And I just want to push on something you just said, Kate, because I think it's so important Dobbs was coming anyway. The court could have looked really apolitical and judicious by simply pumping the brakes with SB8 in Texas. The idea that instead we saw the court really floor it, I think tells you a lot about what's coming. Melissa, do you want to take a whack at either affirmative action or guns?
- [30:34]
B
So I'll take a stab at guns. Let me just say that the other thing going on in Dobbs, and this is the interaction between Dobbs and SB8, is that, you know, now that we've had SB8, which bans abortion at six weeks go into effect, suddenly 15 weeks seems a reasonable compromise. Let's uphold that. And so, you know, what's also happening here is the court has participated in shifting the Overton window on what we think think is reasonable in terms of abortion restrictions. So, you know, add that to the ledger. So the Court is also going to hear a case called New York State Rifle and Pistol association versus Bruin. And this is more than 10 years after the court in Heller versus District of Columbia recognized the right to have a home, a handgun in the home for self defense. A couple of terms ago, they tried to take up another Second Amendment rights case. And that didn't work out because New York repealed the law that was at issue and that basically mooted the case. This tees it up again. And there were a lot of folks on the court who were really antsy for a new challenge. In that earlier case that was mooted, Justice Kavanaugh and Justice Alito both signaled that they would be very interested in hearing a new case that raised the Second Amendment cases. But this one deals with a New York law that prohibits or provides some restrictions on getting a concealed carry permit in the state. And these concealed carry permits, they have particular conditions for their granting, and lots of states have these conditions on them. So New York is not the only one, although the New York law is the one that's being challenged. And if the Court moves in the direction that I imagine that we expect it to, which is to strike down the New York gun control law, that probably puts those conditions on a concealed carry permit, it will dramatically reshape the landscape of Second Amendment rights. And as Kate noted earlier, that's a very different posture than the one they've taken with regard to other kinds of rights, like reproductive rights, although quite consistent with their expansion of First Amendment rights.
- [32:35]
D
And Leah, can you do a quickie on affirmative action which is not a for sure grant yet?
- [32:41]
C
Yes. So this is a case that challenges the legality of Harvard College's admissions programs. Back when the Supreme Court was deciding affirmative action cases in the 1970s, Justice Powell wrote what was wrote what, wrote what was the foundational case and opinion for affirmative action jurisprudence. And he held out Harvard's admissions program as the example of what a permissible use of race in admissions policies was, namely, part of a holistic review of a candidate's file in order to ensure diversity in a class. And a group that is opposed to affirmative action. Students for Fair Admissions has challenged Harvard's affirmative action policy. They argue it violates a federal statute that is interpreted to be consistent with the federal Constitution. And their cert petition also asks the Supreme Court to revisit the case, Grutter v. Bollinger, that held affirmative action was constitutional at the University of Michigan. So what the Court did is they invited the Solicitor General to weigh in and give their views on whether the Supreme Court should take that case. We haven't yet received the solicitor General's brief. It's possible we will get it soon, at which point the Supreme Court will decide whether to take the case. I think given the extent to which this court is in a yolo, let's just do it in be legends mode. The they might be inclined to just do this one too. You know, as we were talking about with respect to Dobbs and Texas SB8. So that's also something that could make its way onto the docket. I just wanted to note two quick additional points about Dobbs, which is first, even if the court does not take Mississippi's invitation, new invitation to overrule Roe and Casey, that does not mean they are moderate or institutionalist. Just putting a pin in that now. Second is I think it's possible they will do in that case what they did in Texas SB8, which is simultaneously insist we're not getting rid of Roe and Casey. It's just we're allowing states to prohibit abortions before viability. And again, we should all understand those decisions for what they are allowing states to ban abortions before viability. That is criminalizing the core of the right protected and defined in Roe and kce.
- [34:50]
D
So we have to wrap up which breaks my heart because I do. I still have about 400 questions I would love to ask and have answered. But I do want to say that all three of the extraordinary women who you are meeting today have written a really, I think, powerful law review article called A Podcast of One's Own, explaining just how desperately women's voices are needed in the space around not just at the Supreme Court, arguing at the Supreme Court, but commenting, thinking, writing about the court. And this is what you are witnessing, particularly in this moment around SB8. Exactly why we need these three voices. I could not be more honored to be in conversation today with Leah Littman, Melissa Murray, Kate Shaw. Thank you so much for the work that you do.
- [35:39]
C
Thank you, Dalia.
- [35:39]
A
Thank you so much, Dalia.
- [35:40]
B
Thanks for having us, Dalia.
- [35:41]
D
And we really want to thank the Texas Tribune. We want to thank our listeners at Amicus and Slate. And we hope that if you enjoyed this conversation, you continue to stay really active and involved. This is going to be a hell of a Supreme Court term. So buckle in. Thank you for having us. And that is a wrap for this episode of amicus. Thank you for buckling in with us and thank you so much for your letters and questions. You can always keep in touch@amicuslate.com or you can find us@facebook.com Amicus podcast today's show was produced by Sara Burningham. Gabriel Roth is editorial director, Alicia Montgomery is executive producer and June Thomas is senior managing producer of Slate Podcasts. We'll be back with another episode of Amicus in two weeks. SA.