Strict Scrutiny: Episode Summary Title: Election Anxiety: How the Outcome Could Affect SCOTUS’s Docket
Release Date: November 4, 2024
Hosts: Melissa Murray, Leah Litman, Kate Shaw
Produced by: Crooked Media

1. Introduction

In this pivotal episode of Strict Scrutiny, constitutional law professors Melissa Murray, Leah Litman, and Kate Shaw delve into the intricate relationship between the upcoming election and the Supreme Court's docket. They explore how election outcomes could reshape the Court's decisions, profile controversial Court figures, and examine the broader implications for American legal culture.

2. Court Culture: Sam Alito and the German Princess

Melissa Murray kickstarts the Court Culture segment by spotlighting Justice Samuel Alito's recent social endeavors, particularly his friendship with Princess Gloria von Thurn und Taxis of Germany.

• Leah Litman notes, “There have been an unfortunately large number of occasions where the country has been confronted with Hitler references...” (03:09), setting the stage for the discussion on the uncomfortable parallels in Court interactions.

• Kate Shaw humorously comments on the princess's background: “Princess Gloria is something of an interesting story for royal watchers. She used to be kind of a baddie in the 80s...” (03:44), highlighting her tumultuous past and current controversial affiliations.

• The hosts discuss the princess's ideological shift towards pronatalism and her associations with figures like Viktor Orban and Steve Bannon. Melissa Murray quips, “This is literally my Roman Empire waiting for this story for my whole life...” (04:34), emphasizing the almost fantastical nature of the rapport.

• Leah Litman expresses skepticism about the friendship's motives: “She told the Times, 'I have admiration and great respect for the judge...'” (07:38), questioning the ethical implications of such alliances.

• The segment touches upon Justice Alito's knighthood in the Constantinian Order of St. George, with Kate Shaw labeling it as “fabulism” (13:11) and Melissa Murray adding, “I mean, does he have a palace?” (15:37), underscoring the eccentricity of these affiliations.

3. Election-Related Court Cases

The hosts transition to discussing urgent election-related cases impacting the Supreme Court's docket:

• Melissa Murray explains the involvement of Robert F. Kennedy Jr. in withdrawing from the presidential race and his subsequent legal maneuverings: “Robert F. Kennedy, Jr. Asked for his name to be removed from the ballot...” (19:40).

• Kate Shaw outlines the Supreme Court's recent decisions on voter purges in Virginia and provisional ballots in Pennsylvania, emphasizing the justices' ideological splits: “The Supreme Court denied the Republican National Committee's request to stay the Pennsylvania Supreme Court decision...” (29:14).

• Leah Litman critically analyzes the Court's stance, stating, “...the Supreme Court took a page from the fifth Circuit, which, recall last week, said that while dictionaries, AKA textualism, are ordinarily useful...” (22:17), questioning the coherence of the Court’s reasoning.

• Kate Shaw highlights the potential consequences of these decisions on voter turnout and electoral integrity: “But this should not be a deterrent to voting... It increases the time that it takes to vote...” (21:56).

4. Impact of the Upcoming Election on SCOTUS’s Docket

The discussion pivots to how the election outcome could influence the Supreme Court's composition and future rulings:

• Leah Litman speculates on possible retirements: “Justices Alito and Thomas seem to us likely to step down in the event Trump wins a second term...” (36:49), suggesting a shift towards a more conservative judiciary.

• Melissa Murray connects the election to specific cases like Skirmetti, focusing on gender-affirming care for minors: “It's difficult to imagine a Trump administration continuing in the current posture that the federal government has adopted...” (37:40).

• The hosts consider the potential for administrative changes affecting cases such as the regulation of ghost guns: “It's possible that under a Trump administration... agree with the lower court that the regulation is invalid.” (37:40).

• Leah Litman brings attention to lower court cases that could be pivotal post-election, including challenges to the Deferred Action for Childhood Arrivals (DACA) program: “...this is a really frightening case. You know, a very frightening possible outcome...” (43:35).

5. Abortion Ban Consequences

A poignant segment covers the tragic consequences of abortion bans, drawing parallels to international incidents that led to legal reforms:

• Melissa Murray shares the heartbreaking story of Joselie Barnica: “...she had to wait 40 hours... which proved fatal...” (32:06), illustrating the lethal impact of restrictive abortion laws.

• Leah Litman compares Barnica’s case to Savita Hala Pavanar’s death in Ireland, where similar tragedies spurred legal reforms: “...countries spurred to reform their abortion laws...” (33:34).

• Kate Shaw discusses the uncertainty of whether the U.S. will undergo similar reforms: “But will that happen in the United States? That is part of what voters are deciding...” (33:34).

• Melissa Murray critiques misleading political advertising by the RBG PAC, which downplays Trump’s stance on abortion: “...RBG PAC is running ads that misleadingly suggest that Donald Trump does not support court an abortion ban...” (34:20).

• The hosts emphasize ongoing litigation surrounding abortion, highlighting the potential for states to enforce life-threatening restrictions: “...women who were denied abortions that were medically necessary are suing the state...” (36:13).

6. Preview of the Court’s Upcoming Cases

Looking ahead, the hosts outline several cases slated for the Supreme Court's November sitting:

• Melissa Murray details EMD Sales versus Carrera, focusing on the burden of proof for Fair Labor Standards Act exemptions: “...whether the burden of proof for employers is a preponderance of evidence or clear and convincing evidence...” (48:05).

• Kate Shaw introduces Velasquez versus Garland, an immigration case concerning the timing of voluntary departures in immigration proceedings: “...voluntary departure period ends on a weekend or a public holiday...” (49:47).

• Leah Litman explains Delegati versus The United States, which examines whether certain crimes qualify as violent felonies under the Armed Career Criminal Act: “...whether crimes that require proof of bodily injury or death... have as an element the use or attempted use or threatened use of physical force...” (50:42).

• Additional cases include Wisconsin Bell versus United States Ex Rail Todd Heath, Advocate Christ Medical Center versus Becerra, Facebook versus Amalgamated Bank, and Nvidia Corp. vs. E. Ulman J. Or Fonder AB, each addressing issues from False Claim Act claims to securities litigation reforms.

7. Conclusion

As election day looms, Strict Scrutiny encapsulates the profound interplay between electoral outcomes and Supreme Court dynamics. The episode underscores the high stakes involved, from potential shifts in judicial philosophy to the immediate impacts on voter rights and critical health outcomes. The hosts leave listeners with a sobering reminder of the Court’s influential role in shaping American society and the urgent need for informed voter participation.

Notable Quotes:

• Leah Litman: “Once again, this seems to underscore that absence did not make anyone's heart grow fonder of Sam Alito...” (53:49).

• Kate Shaw: “This is so insane.” (13:11).

• Melissa Murray: “Some of them actually still fly and adorn themselves with Confederate flags.” (13:56).

8. Additional Highlights

• Oral Argument Clip in Royal Canaan v. W:

  • Melissa Murray: “Do you think that courts of appeals read our decisions differently than we may? I was on a court of appeals for 15 years...” (53:14).
  • Leah Litman: “...the envelope, that vote will not be counted.” (53:49).

• Election Urgency:

  • Leah Litman: “This election is going to come down to a tiny margin in a lot of these key battleground states...” (54:12).

Final Thoughts: This episode of Strict Scrutiny provides a comprehensive examination of how the upcoming election could significantly influence the Supreme Court's direction and, by extension, American legal and social landscapes. Through incisive analysis and engaging discussions, the hosts illuminate the critical junctures at which law, politics, and societal values intersect.