Jingle Bells, the Fifth Circuit Is Hell

Summary

Summary of "Jingle Bells, the Fifth Circuit Is Hell" Episode of Strict Scrutiny

Released on December 16, 2024

In the "Jingle Bells, the Fifth Circuit Is Hell" episode of Strict Scrutiny, hosts Leah Litman, Kate Shaw, and Melissa Murray navigate a labyrinth of recent Supreme Court cases, judicial controversies, and significant legal developments. This detailed summary encapsulates the episode's key discussions, insights, and conclusions, providing a comprehensive overview for those who haven't tuned in.

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1. Book Announcement: Leah Litman’s "Lawless"

The episode kicks off with exciting news about host Leah Litman's forthcoming book titled "Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes." Set to be published by Simon and Schuster on May 13, 2025, the book promises an incisive critique of the Supreme Court's operations and ideological leanings.

• Melissa Murray [01:41]: "Stricly Scrutiny's own Leah Litman... release her book..."

• Kate Shaw [02:33]: "Order, pre-order at least one copy. Ideally three to five."

• Justice Kagan [03:19]: "With the gravitas of Joan Biskupic and the irreverence of Ellie Mystal..."

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2. Breaking News

a. Justice Alito’s Dissent in PPOC vs. Eau Claire School District

A focal point of the episode is Justice Samuel Alito's vigorous dissent regarding the Supreme Court's denial of certiorari in PPOC vs. Eau Claire School District. The case challenges Wisconsin's policies supporting transgender students, encompassing areas like restroom use and athletic participation.

• Justice Kagan [05:21]: "Some lower courts haven't forgotten... majority of justices agreed that standing was still a thing."

• Kate Shaw [07:44]: "Justice Alito wrote a dissent... rehash of these parents arguments..."

• Melissa Murray [07:58]: Highlighted the procedural aspects, noting the parents lacked standing because they weren't directly affected.

b. Trump’s Cabinet Picks

The hosts discuss President-Elect Trump's nominations, notably Harmeet Dhillon for Assistant Attorney General for Civil Rights. Dhillon's background includes active involvement with conservative legal challenges and opposition to Big Tech censorship.

• Melissa Murray [09:40]: "Trump announced that Harmeet Dhillon will be his pick..."

c. Luigi Mangione’s Case and Ghost Guns

Luigi Mangione, the suspect in the United Healthcare CEO's murder, was apprehended using a 3D-printed ghost gun. This development ties into the pending Supreme Court case Garland vs. Vanderstock, which examines whether ghost guns qualify as firearms under federal law.

• Melissa Murray [11:37]: "Ghost guns are firearms things... looking forward to how the court's gun nuts are going to contort themselves..."

d. North Carolina Election Recount

The episode covers the narrow victory of Allison Riggs over Jefferson Griffin in the North Carolina Supreme Court race after two recounts, emphasizing ongoing challenges to election integrity and potential future litigations.

• Kate Shaw [13:01]: "She won by around 700 votes... calls to disqualify 60,000 votes..."

• Justice Kagan [14:01]: "Ripple effects of election denialism... years to come."

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3. Argument Recaps

a. Seven County Infrastructure Coalition vs. Eagle County, Colorado

This case scrutinizes whether the National Environmental Policy Act (NEPA) mandates agencies to evaluate environmental impacts beyond immediate regulatory concerns. The discussion highlights potential deregulation and environmental review standards.

• Melissa Murray [18:39]: "Trump's Truth Social post... conflict with NEPA."

• Justice Kagan [26:48]: "Courts have taken NEPA to unreasonable ends... preserve some environmental assessments."

b. Kucesis vs. United States

The debate centers on the definition of property fraud under federal law, specifically whether misrepresenting the use of subcontractors with certain qualifications constitutes fraud without economic harm.

• Justice Sotomayor [27:52]: "Fraud would be promising services that were more valuable."

• Justice Kagan [30:13]: "Materiality... injury based on not receiving desired services."

c. Feliciano vs. DOT

This case examines whether reservists receive differential pay only during emergencies in a temporal sense or if there's a substantive connection to the work performed.

• Justice Sotomayor [37:20]: "Why have specific provisions... to avoid superfluous terms."

• Kate Shaw [39:27]: "World which couldn't possibly exist."

d. Dewberry Group vs. Dewberry Engineers

A trademark dispute questioning whether profits from a legally distinct entity can be disgorged under the Lanham Act.

• Justice Sotomayor [42:37]: "There are many ways to skin the cat... no total agreement here today."

• Melissa Murray [43:25]: "Justice Kagan received a draft opinion already."

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4. Opinion Recaps

a. Warfa vs. Mayorkas

In a unanimous decision authored by Justice Jackson, the Supreme Court held that revoking a visa due to sham marriages is discretionary for federal courts to review, underscoring agency discretion.

• Justice Kagan [44:39]: "Unanimously upheld... agency discretion."

b. Nvidia Corp vs. Omen

The Court dismissed Nvidia's securities fraud case, deeming it too fact-specific. This decision aligns with previous dismissals like Facebook vs. Amalgamated Bank, suggesting a trend of the Court avoiding detailed fact-heavy disputes.

• Melissa Murray [45:36]: "Dismissed on ground... cert improperly granted."

c. Fifth Circuit En Banc Decision

A significant focus is the Fifth Circuit's failure to reach a decision en banc, resulting in a deadlock due to internal conflicts among judges. The hosts describe this dysfunction with humor, likening it to reality TV drama.

• Kate Shaw [48:55]: "Insane infighting... separate opinions attacking each other."

• Justice Kagan [51:19]: "Judicial minimalism... fundamentally at odds with judge’s role."

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5. Court Culture and Other Court News

a. TikTok Case in the D.C. Circuit

The D.C. Circuit unanimously rejected TikTok's challenge against a law mandating its sale to a U.S. entity by January 19th, framing the debate around national security versus First Amendment rights.

• Melissa Murray [60:25]: "First Amendment requires rigorous scrutiny... national security justifies deference."

b. Justice Ketanji Brown Jackson’s Broadway Debut

Celebrating Justice Jackson's foray into Broadway with a one-night performance in "Romeo and Juliet," showcasing her diverse interests beyond the judiciary.

• Melissa Murray [61:27]: "Made her Broadway debut... participated in a talk-back."

c. DACA Health Insurance Ruling in North Dakota

A Trump-appointed judge blocked the Biden administration's rule allowing DACA recipients to obtain health insurance through the ACA marketplace across 19 states, intensifying debates over immigration policies.

• Kate Shaw [63:07]: "Blocking DACA recipients' health insurance... shows judicial resistance to Biden's policies."

d. Louisiana Governor Targets LSU Professor

The Louisiana governor pressured Louisiana State University to reprimand a law professor for classroom statements about the 2024 election, highlighting ongoing tensions over academic freedom and political discourse.

• Melissa Murray [64:44]: "Governor calling on LSU... accusations of left-wing censorship."

e. Montana Supreme Court on Gender-Affirming Care

A unanimous decision upheld the availability of gender-affirming medical care for minors, maintaining the status quo while litigation continues on Montana's attempted bans.

• Kate Shaw [64:44]: "Unanimously upheld gender-affirming care... pending ongoing challenges."

f. Supreme Court Lottery for Public Seating

The Supreme Court introduced an online lottery for public seating at oral arguments, aiming to democratize access while managing high demand.

• Kate Shaw [73:52]: "Online lottery for public seating... hybrid system introduced."

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6. Notable Quotes

Throughout the episode, several memorable quotes punctuate the hosts' discussions, offering sharp insights and witty commentary:

• Justice Alito [07:11]: "She goes all in on the parents of children. And those parents, they have rights when they don't want their kids."

• Melissa Murray [19:21]: "NEPA is a real thorn in the sides of those who are really interested in this kind of development work."

• Justice Kagan [26:48]: "Courts have taken NEPA to unreasonable ends... we still want a reasonable decision."

• Kate Shaw [39:27]: "Yo world which couldn't possibly exist."

• Melissa Murray [43:25]: "I think he could really use a Helix mattress."

• Justice Kagan [51:19]: "Judicial minimalism... fundamentally at odds with judge’s role."

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7. Conclusion and Predictions

The episode wraps up by emphasizing the turmoil within the Fifth Circuit, predicting ongoing challenges in achieving judicial coherence. The hosts express concern over the increasing politicization of the judiciary, regulatory rollbacks, and the Supreme Court's evolving stance on crucial issues like national security and civil rights.

• Melissa Murray [74:03]: "The Supreme Court is starting an online lottery... guarantee Ticketmaster meltdown."

• Kate Shaw [75:37]: "Like the Dewberry Group case shows confusion in trademark litigation."

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Overall Insights:

"Jingle Bells, the Fifth Circuit Is Hell" provides a comprehensive examination of the current state of the U.S. judiciary, highlighting significant cases, internal court conflicts, and the broader implications of judicial decisions on society. The hosts offer a blend of analytical depth and engaging commentary, ensuring listeners are well-informed about the complexities of legal proceedings and their impact on everyday life.

Transcript

[Leah Lippman]

Variety raves Maria is absolute perfection. And Entertainment Weekly hails Academy Award winner Angelina Jolie. Brings tragedy and triumph to the last days of opera singer Maria Callas.

[Kate Shaw]

Finally, I am in control.

[Leah Lippman]

And critics agree. It's a towering tour de force performance from Angelina Jolie and a career best.

[Kate Shaw]

My life is opera. There is no reason in Opera Maria.

[Leah Lippman]

Directed by Pablo Larray, for your consideration. Now playing It's Lech Peterson on Netflix.

[Kate Shaw]

Mr. Chief justice, may it please report.

[Melissa Murray]

It's an old joke, but when I.

[Justice Sotomayor]

Argue, a man argues against two beautiful ladies like this, they're going to have the last word.

[Kate Shaw]

She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sexual. All I ask of our brethren is that they take their feet off our necks.

[Justice Kagan]

Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Litman.

[Melissa Murray]

I'm Melissa Murray.

[Kate Shaw]

And I'm Kate Shaw. And we've got a jam packed episode for you today. First, we have a little Strict Scrutiny news to let you in on or maybe to remind you of. We will then cover some breaking news and then recap last week's arguments. We'll briefly cover recent opinions and resolutions of pending cases. And we will bring it home with a little court culture.

[Melissa Murray]

First up, a little strict scrutiny tea. As you know, listeners, we are big, big readers. We read a lot of books. But the, the one book we cannot wait to add to our bookshelves next year is from Strict Scrutiny's own Leah Lippman. Yes, you heard it right. That's right.

[Kate Shaw]

Not just readers, also writers.

[Melissa Murray]

Yeah, one writer.

[Justice Kagan]

There's a lot of reading in the writing, but like reading in the drag queen sense. So, you know, little in both. And yeah, yes.

[Melissa Murray]

All to say, the library is open because our girl Leah is about to be a published author. Simon and Schuster, I know you've heard of them, will publish her book Lawless how the Supreme Court Runs on Conservative Grievance, Fringe Theories and bad vibes on May 13, 2025. So put it down in your calendars right now so you don't miss your chance to get your copy.

[Kate Shaw]

But don't just put it down in your calendars. Order, pre order at least one copy. Ideally three to five. Super fans should consider double digits.

[Justice Kagan]

That means you, Sam Alito. Or you could send him write a grace copy.

[Melissa Murray]

Harlan Crowe will be sending it to Justice Thomas. I'm pretty confident that's true.

[Kate Shaw]

You can send your friends, lovers, enemies, a Copy all of these things can happen, but do not wait till May. Put your orders in now. So the official Simon and Schuster website has this to say about Leah's book. Quote. With the gravitas of Joan Biskupic and the irreverence of Ellie Mystal, Leah Lippmann brings her signature wit to the question of what's gone wrong at 1 First street in Lawless. She argues that the Supreme Court is no longer practicing law. It is running on vibes. Oh my gosh, I love making Leah listen to us. Read this.

[Melissa Murray]

It's the best.

[Justice Kagan]

Very uncomfortable.

[Melissa Murray]

The love child of Joan Biscupic and Ellie Mustal.

[Kate Shaw]

Is this book Leah Lippman or this book at least? Yes, I'm going to finish reading the Simon and Schuster website. So they go on to say, by vibes, Leah means legal ish claims that repackage the politics of conservative grievance and dress them up in robes. Major decisions adopt the language and posture of the law while in fact displaying a commitment to protecting a single minority. The religious conservatives and Republican officials who whose views are no longer shared by a majority of the country. So this love child, this podcast in book form can be yours starting in May would read 10 out of 10.

[Melissa Murray]

This is the Luigi Mangione mugshot of books like hot.

[Justice Kagan]

Is that a compliment?

[Melissa Murray]

Yes, sure. Have you seen that mugshot?

[Justice Kagan]

Right, like. Okay, no, I understand filling it into.

[Melissa Murray]

I am not condoning the conduct.

[Justice Kagan]

Okay, got it.

[Melissa Murray]

I've never seen a glamour shot like that way. Like this book is on that level.

[Justice Kagan]

Okay, well, I appreciate it.

[Kate Shaw]

Hot but not murderous.

[Melissa Murray]

Right.

[Justice Alito]

Okay.

[Kate Shaw]

Anyway, as I said at the outset, pre orders are available now. We will put a link in the show notes, but you can go to the Simon and Schuster website, you can go to bookshop.org, you can go to Amazon.com there will also be an audiobook, so that will be an option as well.

[Melissa Murray]

All right, so that's our strict scrutiny tea. Now for a little breaking news. We always love it when the court makes sure that Leah has enough gas in the tank for a sequel. And so it is with great pleasure that we alert you to some news involving our favorite friend of the pod, one Samuel A. Alito, who has been back on his hustle, dissenting from a denial of certiorari in PPOC versus Eau Claire School District. The case involves a challenge to a Wisconsin school district's guidance for supporting trans students. The policy instructs schools to support students when appropriate or necessary with respect to restroom use, athletic participation and processes to facilitate living in accordance with their gender identity.

[Justice Kagan]

A group of parents challenged the policy on the ground that it violated the fundamental right of parents to raise their children in the manner of their choosing. Specifically, the parents argued that the policy encouraged students to transition and encouraged schools to keep parents in the dark about their children's gender identities. The school district argued that this characterization of the policy was misleading, noting that while the policy instructs schools to create gender support plans, those plans were part of the student's permanent school record and therefore always available to parents and guardians. But I just, I so appreciate that the week after Sam Alito cannot give two shits about the parents of trans kids. He goes all in on the parents of children. And those parents, they have rights when they don't want their kids.

[Melissa Murray]

You're getting ahead of yourself. You're getting ahead of things.

[Justice Kagan]

It's just incredible. It's incredible. It is.

[Melissa Murray]

We're going to get there, though. So all to say that this case was presented for court review and the court declined to do so. And it's really important to understand the procedural posture here. The lower court never got to the substantive questions here about whether or not this policy violated the fundamental rights of parents as protected by the liberty interest in the 14th Amendment because they determined that the parents who brought the challenge lacked standing because the policy had never affected them. They did not have students in the schools who were trans or who were implicated by the policy. And so at this point, I felt like staring in 303. Creative. But I'm glad that some lower courts haven't forgotten this whole jurisdictional wrinkle that you have to observe in this case. The Supreme Court hasn't exactly forgotten those jurisdictional wrinkles because a majority of the justices agreed that standing was still a thing and they rejected this petition for certiorari on standing grounds. And some justices took that personally.

[Kate Shaw]

So Justice Kavanaugh would have granted the petition. And as Leah was just alluding to, so would Justice Alito have. And in fact, Justice Alito wrote a dissent from the denial of cert, which Justice Thomas joined. And it was basically a Fox News inflected rehash of these parents arguments that the schools were encouraging gender transitions and keeping that information from parents. Obviously tons of tension between this concern and the total lack of concern on display for the parents of actual trans kids in Tennessee.

[Justice Kagan]

It's seriously like he just pulls up chat GPT and asks how can I be hypocritical based on what I said last week? This go around, it was just the timing was art.

[Melissa Murray]

There are lots of justices here who have things to say that are a little inconsistent. So, for example, one thing that we ought to note here is this fundamental right of parents to raise their children in the manner of their choosing is nowhere explicit in the text of the Constitution. This is one of those unenumerated rights that is viewed as fundamental because it is a kind of human right that precedes the state. The state can't give it to you because you already have it by virtue of being human. And it's just really nice to see Justices Alito and Thomas out here supporting at least this species of substantive due process. Liberty doesn't work for them in the context of abortion or same sex marriage. But right here, this is where it counts. And I just want to say maybe that's a bright spot for us.

[Justice Kagan]

It's substantive due process. Nothing that's not for me, not for thee, not for thee.

[Kate Shaw]

That's right. Yeah. And even. But to Leah's point, it's, you have to slice it even more thinly because it is for some parents and their choices for their kids.

[Melissa Murray]

Parents don't want their kids to transition. Right.

[Kate Shaw]

Or even to be around kids who might be. I mean, it is a really narrow slice of liberty that they're willing to sign onto. But you're right, it is a kind of liberty not enumerated anywhere in the Constitution. So I suppose we should give them that. But I do think that these writings certainly do suggest that if and when the right set of plaintiffs, not like the plaintiffs in sct, the Tennessee case, but the aggrieved parents here, only somehow able to manufacture a stronger standing claim, materializes, this case will be back at scotus. And we very much know where two, at least of the justices will be on this issue. So the court didn't take this case up. But that does not mean the question is not coming back.

[Melissa Murray]

It's definitely coming back.

[Justice Kagan]

Oh, yeah.

[Melissa Murray]

All right. Speaking of coming back, we're coming back to these new Trump Cabinet picks. Justice Alito wasn't the only one making a strong bid to be included in Leah's lawless sequel. The incoming Trump administration is also going to have a bite at the apple. Last week, President Elect Trump announced that Harmeet Dhillon will be his pick to be the Assistant Attorney General for Civil Rights. The Civil Rights Division of DOJ is the one that enforces voting rights, the one that investigates police departments for police brutality and enforces federal anti discrimination laws. What could go wrong?

[Justice Kagan]

So Dylan is well known in Trump world. As a lawyer, she was co chair of Lawyers for Trump, a group that in 2020 filed a number of election challenges on behalf of candidate Donald Trump. She's especially well suited to lead the Civil Rights division, according to Donald Trump, because she has made a name for herself, quote, taking on Big Tech for censoring our free speech. That's capital, free speech. Representing Christians who were prevented from praying together during COVID and suing corporations who use WOKE policies to discriminate against their workers. End quote. The new civil rights you heard it here first.

[Kate Shaw]

In other breaking news, we wanted to mention Luigi Mangioni in the case of the ghost gun. So we've already alluded here to the principal suspect in the killing of the United Healthcare CEO Brian Thompson Mangione. The suspect was apprehended last week after a days long manhunt. He was apprehended in an Altoona, Pennsylvania McDonald. And while many individuals, as Melissa referenced earlier, were transfixed by Mangione's strangely kind of glam, shoddy mug sh Sultry it was. Yeah, we were transfixed by another development in the case, which is that apparently the gun that Mangione allegedly used in the fatal shooting was a ghost gun made with a 3D printer. Which should sound familiar to listeners to.

[Melissa Murray]

This podcast because, you know, currently pending before the United States Supreme Court is a case, Garland vs. Vanderstock, which considers whether ghost guns are firearms within the meaning of the federal statute that regulates firearms. Now after this shooting, I ask you, is that even a question? Are ghost guns firearms? It seems that they can definitely do firearms things. And all of this to say is that I think we are really looking forward to how the court's gun nuts are going to contort themselves to figure out a way to exclude ghost guns from the ambit of this statute when this case is finally decided. So watch this space.

[Justice Kagan]

Although I have to say there is a chance they are going to end up at the right place in this one particular case.

[Kate Shaw]

I even without this, yeah, the oral argument, partly because Prelogar was just so virtuosic, it did actually seem as though even though we were pessimistic going in, they were maybe going to allow this regulation to stand.

[Melissa Murray]

Well, here's the dream team we didn't see coming. Elizabeth Prelogar Regimeni Changing Hearts and Minds.

[Kate Shaw]

No one saw that coming.

[Melissa Murray]

No one did.

[Kate Shaw]

One more piece of breaking news, which is that former podcast guest, current North Carolina Supreme Court justice and candidate for that court, Allison Riggs, has, after two separate recounts, narrowly defeated her Republican opponent Jefferson Griffin, who is a court of appeals judge in North Carolina, which means she should remain on the North Carolina Supreme Court.

[Justice Kagan]

Usually how those elections work, typically, if.

[Kate Shaw]

You win more votes, which in this case she did by a very narrow margin. So there have been two separate recounts and she has still won by around 700 votes, which really calls to mind, Leah, you reminding listeners how close these elections in North Carolina specifically have been.

[Justice Kagan]

Right.

[Kate Shaw]

This really drives it home. So you would think close, but she won. End of story. And yet her opponent seems not to get this because even though the state Board of Elections has, following those two complete recounts, ruled against this outlandish set of challenges he is mounting to disqualify 60,000 votes, he has yet to concede and he may yet try to take those arguments to the North Carolina Supreme Court. The body he is vying for a seat on, we don't know as we record this on Thursday afternoon, you mentioned.

[Justice Kagan]

The challenges being outlandish. The board ruled, among other challenges, against disenfranchising military and service members who did not provide a voter ID when they cast their ballots. So this is.

[Kate Shaw]

But that's what he's asking to. Right. He's trying to disqualify those votes, among others. It is wild.

[Justice Kagan]

This is a shameful effort. I hope it fails. But it speaks to the ripple effects of election denialism in this country, which we are going to be feeling for years to come.

[Kate Shaw]

Absolutely.

[Melissa Murray]

It also speaks to the incredible efforts that were made in North Carolina to turn out the vote. Like there were really important local efforts to turn this out in particular counties. And seems like it paid off. Even though the win was a narrow one. It was a win.

[Kate Shaw]

Yep, it did. And. But that's exactly why this stuff is so pernicious. Right. So if people do see how hard everyone worked to turn out enough votes to actually eke out a win for Riggs and he manages to use these bad faith arguments to somehow get onto the court anyway, it is understandable that people begin to lose faith in democracy. And you know what? Maybe that is the point.

[Justice Kagan]

Yeah. Strict scrutiny is brought to you by ZBiotics pre alcohol. Let's face it, after a night with drinks, you probably don't bounce back the next day like you used to. ZBiotics Pre alcohol Probiotic drink is the world's first genetically engineered probiotic. It was invented by PhD scientists to tackle rough mornings after drinking. Here's how it works. When you drink, alcohol gets converted into a toxic byproduct in the gut. It's this byproduct, not dehydration. That's to blame for your rough next day. Pre alcohol produces an enzyme to break this byproduct down. Just remember to make ZBiotics your first drink of the night. Drink responsibly and you'll feel your best tomorrow. You've heard me mention how Zbiotics were making the rounds when I was lucky enough to join Pod Safe America Live from Ann Arbor. It's a way to ensure we could enjoy the festivities and the day after the festivities. Really, you can't go wrong. And I'm packing my Zbiotics for the birthday trip I am about to head out on because in my 40s, the day after drinking isn't always the best and Zbiotics is there to help. And with their GMO technology, Zbiotics is continuing to invent probiotics that will help with everyday challenges of modern Living. Go to ZBiotics.com Strict to learn more and get 15% off your first order when you use Strict at checkout, ZBiotics is backed with 100% money back guarantee. Remember to head to ZBiotics.com Stricted and use the code Strict at checkout for 15% off Strict scrutiny is brought to you by Babbel. Are you holding back on travel plans this holiday break because you're afraid of the language gap? Well, no need to mind the gap if you have Babbel speak like a whole new you. With Babbel, the language learning app that gets you talking, they have quick 10 minute lessons that are handcrafted by over 200 language experts, which means Babbel can get you talking a new language in just three weeks. And with the advanced speech recognition by Babbel, it's like having a personal language tutor in your pocket to help your pronunciation whenever you open your mouth. This upcoming summer, we've got our big getaway planned and we're leaving the country to go to Greece. I'm so excited and want to be ready to eat and drink my way through the islands. So I'm studying up on Babel so I can order all of the extra garlic and also communicate my particular preferences. Some might say unique preferences. As to wine, you know, the cloying sugar kind. Here's a special holiday deal for our listeners right now. Get up to 60% off your Babbel subscription, but only for strict scrutiny. Listeners@babel babbel.com strict get up to 60% [e-mail] strict spelled b a b b e l.com strict rules and restrictions may apply on that bright note, onto argument recaps. So the court heard arguments in a number of cases last week. First up is seven County Infrastructure Coalition versus Eagle County, Colorado. At issue here is whether the National Environmental Policy act, or nepa, requires an agency to study environmental impacts beyond the immediate effects of the action that the agency has the power to regulate. It seems like a dry issue, but if the amicus activity in the case is any indication, this is a case that corporate interests are attentively watching. Why? Well, because environmental reviews can make it harder to drill, baby drill and develop real estate projects. If the court rules in favor of the petitioners and weakens nepa, it would dramatically, dramatically lower environmental review standards for infrastructure projects on federal land.

[Melissa Murray]

And if NEPA sounds familiar to you listeners, it's because just a few days ago, Donald Trump posted the following message on Truth Social Quote Any person or company investing $1 billion or more in the United States of America will receive fully expedited approvals and permits, including, but in no way limited to, all environmental approvals. He then followed this with get ready to rock in all caps and three exclamation points. This obviously raises some real questions given its conflict with nepa. But you see the point here. NEPA is a real thorn in the sides of those who are really interested in this kind of development work. And the incoming administration is certainly very interested in this. So here we are.

[Kate Shaw]

God that Truth Social post I was just so torn between like 1 and 2. I couldn't believe it was real how any of this works, and can't rule out SCOTUS saying, actually, maybe that is.

[Melissa Murray]

How this okay, but the foreign investment that's likely to come from this seems really problematic and also perhaps violative of other laws that aren't even named here.

[Kate Shaw]

But what if the Supreme Court just.

[Melissa Murray]

Doesn'T have a problem with that?

[Justice Kagan]

But those instincts, Kate, I think it is. I want to say more about this later on, but I think it's important to hold to both both that that's not how any of this works. And of course we can't rule out the Supreme Court saying that that's how this works. But for this guy, I'll put it right. I'll put a pin in that and come back to it.

[Kate Shaw]

We'll come back to it. The stakes of this case were so high for deregulation, kind of generally, that among the amici who submitted an amicus brief in this case was a company owned by oil baron Philip Anschutz. So why is that relevant? Well, because anschutz and his company have very close ties to EPA super fan Neil M. Gorsuch. And in October, Accountable Us issued a report detailing Gorsuch's connections to Anschutz, including the fact that Gorsuch served as outside counsel to his company and that an in house lawyer at the company recommended Gorsuch for his seat on the 10th Circuit. Gorsuch also apparently owned land with a director and an employee of the company. And to be fully transparent, as a Judge on the 10th Circuit, Justice Gorsuch recused himself from cases involving Anschutz's company. So in the wake of this recent report from Accountable Us, he did so again. So he did not participate in the oral argument, nor will he participate in the decision in this case. As the report noted, the court's resolution of this case could have major financial benefits. Franchettes, whose companies have a number of drilling projects that require environmental review. So it's actually a really good and important thing that Neil recused here.

[Justice Kagan]

Yeah. And so this is the pin I wanted to come back to because we're detailing this. It's a bright spot in an otherwise bleak landscape. I mean, Gorse Perisic didn't recuse until Accountable put out this information and the report. And I think it underscores that it is important and will occasionally have benefits to stay focused on the core, to continue beating the drum about their excesses, to say that's not how any of this works, while not ruling out the possibility that they are going to do the bad, terrible, horrible, no good, very bad thing. But at least if you are maintaining that's not how this works, that's not how this supposed to work. Right. They have to own the costs of fucking it up. And I think this is, we are seeing this play out in the birthright citizenship context where the text is perfectly clear. People born in the United States are citizens. There's also a federal statute that says the same thing. Of course we cannot rule out the possibility that the Supreme Court is going to blow that all up. But neither should we be saying, well, oh, they just can do whatever they want. Like law is just politics. No, no, no, no, no, no. Right. Like it's, it's fine to acknowledge how law is political, but that cannot boil down to, and these guys are just going to do and can do whatever they want. Like law has to mean something and it does. Like here, there, elsewhere.

[Kate Shaw]

I totally agree with all that I am going to say on birthright citizenship. I would not rule out that one, two or three of them might do Something. Oh yeah, catastrophic. But I actually don't think there's much of a chance that there's more than that to ignore the clear text and consistent practice of the 14th amendment. So I at least feel. Not super nervous there. But I think you're right. We probably shouldn't rule out any possibility.

[Melissa Murray]

Are you, are you not nervous because there's a history and tradition of respecting the 14th Amendment?

[Justice Kagan]

Is that why? Well, I'm.

[Kate Shaw]

Because I think the Constitution means more than what these jokers say. And yes, our. The. The sort of. Taking a capacious look at the history and tradition of the 14th Amendment, I actually do think that respecting.

[Melissa Murray]

They've done that. How many times taken.

[Kate Shaw]

They've done what?

[Melissa Murray]

How many times taken a capacious look at the history and tradition of.

[Kate Shaw]

Well, because they don't doesn't mean we don't.

[Justice Kagan]

Well, they were just doing so in that Eau Claire case. Right. They were super into enormous 14th amendment there.

[Kate Shaw]

So.

[Melissa Murray]

Yeah, it's true.

[Justice Kagan]

Can't rule it out.

[Melissa Murray]

Yeah, yeah. Basically we just got to get some parents to talk about the fundamental rights to raise their children as birthright citizens.

[Kate Shaw]

I'm sure those parents, they're going to be.

[Justice Kagan]

They got to be the right parents.

[Melissa Murray]

True.

[Justice Kagan]

You know what I mean?

[Kate Shaw]

True.

[Melissa Murray]

Why do parents. Nice ones. Anyway, this is a case that pits agency review of environmental impacts against corporate interests. So like really a trifecta of Mother Earth, the EPA and corporate interests. Seriously, where do you all think this is heading?

[Justice Kagan]

So it seemed like all of the justices thought the environmental study in this particular case was sufficient. And the question is how broadly they are going to write an opinion about what agencies don't have to do. Right. Or entities don't have to do as part of nepa. But as to those interests in the case, it seemed to pitch two things the Republican justices hate against one another. On one hand, the environment. Not so big fans of Planet Earth. On the other hand, they don't like agencies. And so here if they rule against the environment, they have to say that what the agency did is enough. And so it seems like they're going to give agencies a pass and tell courts to be reasonable when reviewing agency decisions when agencies are assessing environmental impacts.

[Kate Shaw]

Or at least some agencies. Right. So one possibility I thought was that because the agency involved in this case, even though it's an environmental case, is actually not the epa. Here the key federal agency is the Surface Transportation Board or stb, maybe the court is okay with handing that agency a win this time, especially if they can identify another villain Here, which was like the D.C. circuit with its accept excessive concerns about the environment. So I just kind of had this thought like the Surface Transportation Board is like somehow a more MAGA coded agency. And so siding with them rather than the like enviros at the EPA is something that maybe this court could stomach.

[Melissa Murray]

Okay, so I'll just say one thing. These environmental reviews, like, I think they can be incredibly important, especially for large scale projects that can have major impacts on the environment. But they're also, I think really unpopular even in localities. Like, so, you know, if you live in a place like Berkeley, for example, environmental review can really hem up basic things like improvements to a shopping center or a parking lot and stuff like that. And so housing projects.

[Justice Kagan]

Yeah.

[Melissa Murray]

And so I think this one, it's really interesting you saw a flavor of this in the oral argument. Just sort of the idea that this actually, the fact of environmental reviews, the need for environmental reviews and so many of them actually makes it hard for government to work efficiently. And that that was a really interesting strain that didn't necessarily cohere to sort of broader deregulatory talking points.

[Justice Kagan]

Well, also, there's no question that I think courts have taken NEPA to unreasonable ends. So we previously highlighted the district court decision that purported to invalidate a piece of Biden's immigration policy because they hadn't considered the environmental impacts of increases in unauthorized migration. And again, no question NEPA has been abused. But, but I think we still want a reasonable decision. Right. That preserves some environmental assessments. Yeah, yeah.

[Melissa Murray]

All right. The next case we'll take up is Kucesis versus United States. And at issue here is what does it mean to defraud someone of property under federal law? Do you defraud someone of property only when there is a traditional property interests like money at stake? Or can you defraud someone when you're just lying about complying with, with a non economic term in a contract? So for in this case, there was a contract which required subcontractors to be a particular kind of business. If the contractor selects a subcontractor that doesn't adhere to those qualifications, are they defrauding you within the meaning of the federal law? So a number of the justices here seemed really fixated on the question of whether there is a kind of value in expecting certain services or certain type of services and ultimately not getting them, even if there is no actual economic loss or impact to the individual. Here's a clip of Justice Sotomayor who is pressing Jeff Fisher, the lawyer for Koussis, on This point.

[Justice Alito]

I'm sorry, Councilor, let's assume the example that I contract to have a certified plumber fix whatever. All right? And I don't use a certified plumber. I just use a handyman. But the toilet is fixed under your theory, even if I didn't use a certified plumber because the toilet was fixed, I got money from. I got value under the contract.

[G]

No, I don't think so. Justice Sotomayor there, the fraud would be promising services that were more valuable. Now, the certified plumber presumably would charge.

[Justice Alito]

More per hour, but I don't understand what the difference between that and this case is. The services the government contracted for was to have a particular type of vendor sell me something.

[G]

Well, that's not precisely right. I think what the contract here was with Alpha Construction, and Alpha Construction then got to choose its own subsidiaries.

[Justice Alito]

But someone who was certified, someone who had a certain composition.

[G]

So I think you're right about the word certified in a sense. But the certification in your plumber hypothetical deals with somebody who has greater expertise or experience and therefore charges more.

[Justice Alito]

So that's how I understand if I want someone of a particular quality, when I hire a portrait artist, I want that person. I can get a portrait artist from anybody here. The government wanted a particular person to provide the service that's unique, what they wanted.

[Justice Kagan]

And what she's saying is that Penn Department of Transportation, the government agency, valued working with businesses that were certified as disadvantaged business enterprises. And the petitioner, Kucesis, said that they were subcontracting with a disadvantaged business enterprise, but in fact channeled the work to its own subsidiary. According to the federal government, that was fraud. Even if the work was perform and there was no economic harm to the Penn Department of Transportation, Justice Sotomayor suggesting that the question of whether there was fraud turns maybe on materiality. You know, did you get what you paid for you wanted, not whether there was an economic injury as a result of the deception.

[Melissa Murray]

And there was an interesting moment where it seemed like there was a kind of odd gender schism on the bench, with all of the female justices seemingly interested in this question of the materiality of the harm. Like can you be injured or deprived of something even if the contractor gave you something of equal economic value, if it wasn't what you actually wanted? So here's a rundown of Justice Barrett, Justice Jackson and Justice Kagan getting in on this point.

[Justice Kagan]

Mr. Fisher, what about this uniqueness thing? Let me kind of bring you back. You mentioned to Justice Sotomayor that uniqueness matters. What about your Grover Cleveland example, the one about if you contract for a painting of your grandfather and you wind up with one say of Grover Cleveland, that's not exactly what you wanted, but let's say it's of equal value. So you've suffered no economic loss. So why. Or would that qualify as an injury?

[H]

What about the family? What about the family that says I, it's very important to me to have a Christian babysitter.

[Justice Kagan]

We are devout.

[H]

We want this, this is a characteristic that we're telling everybody this is what we're looking for. And someone comes and they purport to have this characteristic, but they don't.

[G]

Ultimately, I think that's egregious behavior. But it's not property fraud. If the, if the, if the babysitter is otherwise fully qualified and performs the services now, there may well be a very serious civil suit. If you're dealing with the government in that kind of situation, there can be a 1000 prosecution or maybe a 371 charge. So I'm not saying these things are okay, and I'm not saying the law doesn't provide a remedy. But what I am saying is that this is an age old, this is an age old problem when it comes to fraud. But I think what you're trying to.

[H]

Get at justice alumni to a contract and you think you're going to get, you pay for gold bars that are worth a million dollars and instead you get like lots of coal that's worth a million dollars. Have you, is that, have you been defrauded?

[G]

So I don't think you've been defrauded under the property fraud statutes. You may have been defrauded if you were dealing with the government under section 371, which doesn't have an injury requirement.

[H]

But you really have totally not gotten what you wanted. I mean, you're creating a world where because I have a dollar's worth of loss, it falls within the statute. But rather than a dollar's worth of loss, I've gotten something that I have no use for, that I never wanted, that I made clear I never wanted or had use for. It happens to be the same in a marketplace out there, but it sure isn't the same for me. I think that this is a terrible deal that I've gotten and it's not the one that I signed up for.

[Kate Shaw]

All right, so predictions. I thought it was actually kind of hard to read where the court was on this question. It sounded like Sotomayor and Jackson were more skeptical of the defendant's position. Only Gorsuch seemed clearly on the government side, but maybe because this is a fraud case that doesn't involve a political official, a majority might be open to ruling for the prosecutors slash the federal government because it wouldn't spark the same joy as it would to rule against the federal government in a political corruption case. Maybe.

[Justice Kagan]

So an additional wrinkle came out in the case. It seems like this might be another case where the question or issue the court thinks it's taking up might not be presented at all. So the federal government said it introduced evidence that Penn Department of Transportation was willing to pay more for contracts with a term requiring certain businesses to be included, the disadvantaged business enterprises. So there was an economic loss to the Penn Department of Transportation. And as the federal government notes, you know, they urged the Supreme Court to deny certiorari in this case on that basis. So it's possible this case could be headed as a few others have been to some kind of non decision saying the issue isn't presented or maybe even a dismissal as improvidently granted. I think it's unlikely here, but, you know, can't rule it out.

[Kate Shaw]

It's possible and it's wild. They're already taking so few cases and they are just like dispensing with so many of them or like at least a couple of them and seem on the path to potentially others. They just want to do as little as possible. And as we've said before, I think we're okay with that.

[Melissa Murray]

Oh, it is interesting though, that the federal government made this case and explained that they had presented this evidence and said like, do not grant cert on this case. And they're like, no, we're good. We got it. We got this.

[Kate Shaw]

Yeah, yeah. Okay.

[Justice Kagan]

Can't tell me.

[Kate Shaw]

Until the arguments. And then you're like, oh.

[Melissa Murray]

Damn it. Why didn't you tell me? Why didn't you persuade me? Federal government.

[Kate Shaw]

So we've got some other cases to cover. The next one is Feliciano versus Dot. And an issue in this case is whether reservists get, quote, differential pay when they are called to service, slash up from reserves during an emergency, but where the work that they perform is not actually related to the emergency. So differential pay means that in addition to regular reservist salary, they also get paid the difference between the reservist salary and the salary of their regular job. So the statute at issue says that reservists will get differential pay during an emergency. The petitioner argues that the emergency designation is temporal but not substantive. That is, it just reflects the circumstances in which the reservist is called up. So they get called up in an emergency. They get the emergency pay. By contrast, the federal government maintains that the emergency designation also has a substantive connection to the actual work performed.

[Melissa Murray]

And at oral argument, the advocate for the petitioner really doubled down on this argument that the plain language of the statute means that emergency is only a temporal designation, it's not a substantive designation. And this raised some eyebrows from some of the justices. So let's roll the tape.

[I]

Well, again, we win on the language of the statute. So I mean, if we aren't speculating and we're just going to return to ground and go to the language, there's just no way to read this statute in the way that the government wants to read it.

[H]

Doesn't during have. I mean, I appreciate during has a temporal meaning, but even in your introduction, you said it virtually always means temporal. Aren't there circumstances in which it could be construed reasonably as a substantive connection?

[Melissa Murray]

With this in mind, the Justices had a lot of questions about the legislative history of the statute and specifically the fact that in enacting the statute, Congress explicitly rejected proposals to extend differential pay to anyone who had been called up, suggesting that maybe this was a substantive designation.

[Justice Kagan]

Yeah. And the Justices also noted that, of course the statute doesn't say anyone called up, but instead referred to categories of emergencies. Some justices also pointed out that, you know, there has been a national emergency in effect since 1979 related to Iranian sanctions, and that it's unlikely, you know, we will soon be in a period without emergencies. And that means petitioner's interpretation would mean reservists get differential pay all the time, since there would always be a national emergency in effect. So here's Justice Alito on this point.

[Justice Sotomayor]

Your thinking is that Congress said, well, you know, we realize that there have been national emergencies now for decades and decades and decades, but if we look ahead, we foresee the time when there will be peace throughout the world and nothing threatening and the lion or the wolf is going to lie down with the lamb and there isn't going to be a national emergency. So that's why we've put in, what is it, eight specific provisions that would be superfluous if your interpretation were accepted.

[Justice Kagan]

I have to say I found this interjection a little chilling. Like what sort of national emergencies is Sam Alito envisioning in the future creating in the future or some combination thereof.

[Kate Shaw]

Like Nosferatu conjuring him up, lion or the wolf? Yeah.

[Melissa Murray]

He wasn't the only one who was a little doomsday here. So Justice Kagan and I think this is the first time they've ever actually been on the same page this entire term. She was right there with him about the oddity of the petitioner's interpretation given the prevalence of emergency declarations. So here she is.

[H]

I mean, but to that point, really, what does Congress believe? There are 43 national emergencies. Now. Every time we have a sanctions program in place, we declare a national emergency. I mean, this is just a sort of feature of modern life.

[I]

There are politicians who go on morning news programs and say, we are going to, you know, end the authorization for the use of military force that we are going to end. They don't necessarily say pending national emergencies, but I think that that's a fair implication. We are always one election away from ending all pending national emergencies. They could change the way.

[H]

We're not going to have any sanctions programs. We're not going to have any hurricanes. We're not going to. I mean, it just seems like a world which couldn't possibly exist.

[Melissa Murray]

I also, I don't know, predictions. Feels like he's going to lose.

[Justice Kagan]

You know, I'm not sure. But another wrinkle that came up again in this case is there was a question about whether the petitioner would prevail under the government's interpretation. That is whether the legal issue or question matters to the case. Because this petitioner was escorting military vessels in and out of the harbor, which seems like it could be related to the emergency and the faa. You know, the agency has its own regulations, you know, apart from the statute, that might award compensation. Even if the Federal Circuit's interpretation about what is generally required under the statute would not. And again, you would think these would be the sort of things they would check before granting a case. And yet this also seems to have escaped their notice. This.

[Melissa Murray]

That's what happens when you run on vibes.

[Kate Shaw]

For more details, pick up your copies of Leah's book pre order.

[Justice Kagan]

The concept of law is just going to increasingly be fading into the background as these guys just continue to finger paint their way through the US Code.

[Melissa Murray]

And the Constitution and these cert petitions, it seems.

[Justice Kagan]

Right. Yes.

[Melissa Murray]

Okay.

[Kate Shaw]

All right. So moving on to the next case, Dewberry Group versus Dewberry Engineers. And at issue here is another pretty narrow question, this one related to trademark litigation.

[Melissa Murray]

I have to say, like, of course this is a trademark case, because, like, just reading it, I was like, which Dewberry is it? Which Dewberry did what? And that's why it's a trademark problem because you're confused. Yeah, yeah, that's exactly.

[Kate Shaw]

Form and content. Exactly so. And specifically, whether under the Lanham act, an award of profit disgorgement can require the defendant to disgorge profits of a legally distinct entity. So the Lanham act requires, as a remedy for trademark infringement, the disgorgement of, quote, the defendant's profits. Here, the infringers, who are the Dewberry Group, argued that the language suggests that a plaintiff should sue and thereby make into defendants all of the entities from which it hopes to recover damages. In this case, all of the damages awarded were profits earned by other entities, none of which were actually a defendant to the suit. And in addition to the question of whether that was proper, there are also some looming questions about how to calculate the profits. Do they include only money required under a contract or also the fair market value of the contract?

[Justice Kagan]

Now, petitioner doesn't dispute that you might be able to attribute or assign one entity's earnings or profits to another in calculating how much an entity owes by way of discouragement. But on the specific legal question, you know, Justice Barrett characterized the case as having, quote, vehement agreement on the narrow question about whether you can just lump separate corporate entities, profits together and essentially treat them as one, but that there was a lot of disagreement about how and when a court could still say this one company's profits don't capture the full economic realities of what they gained. So, lots to say, right on those more difficult questions. But one thing that stood out for me during this argument was Neil Gorsuch woke up on the wrong side of the fucking bed that morning because he was a big jerk. So take a listen here.

[Justice Sotomayor]

I'd agree with you that there are many ways to skin the cat. You can sue these people. You can pierce the veil. You've got all kinds of equitable theories. You just had a great list of them a second ago. But as I understand it, the 4th Circuit below did none of those things. And you all actually agree with that, and you agree that on the question presented, the Fourth Circuit aired, is that right?

[G]

No, you, Honor.

[Justice Sotomayor]

So Solicitor General is wrong. There isn't total agreement here today.

[G]

There is total. If I can answer that two ways. There is total.

[Justice Sotomayor]

And pick one.

[G]

Maybe I can combine them into one answer.

[Justice Sotomayor]

Give me your best.

[G]

There is total agreement.

[Melissa Murray]

I think he could really use a Helix mattress.

[Justice Kagan]

It's just like sometimes there is more than one thing to say in response to your dumb question, Neil. Right. Sometimes you're wrong for multiple reasons and if the point of an argument right is to get at right like what's going on. Sometimes there's there's more to say things.

[Melissa Murray]

You'Re doubly wrong, triply wrongly wrong.

[Justice Kagan]

Yes, you need to get it all out there. But he just doesn't want to hear it.

[Melissa Murray]

I think if he had a good night's sleep, he would be just more receptive to the possibility of those different kinds of wrongs anyway. All right, that was the week in oral arguments. We also got some opinions sort of from the court. So let's do some opinion recommended recaps. First up, Warfa versus Mayorkas. In a unanimous opinion that was authored by Justice Jackson, the Court held that revoking a visa based on a determination that there was a sham marriage is the kind of discretionary decision that the federal courts cannot review because it falls within the discretion of an agency. And again, this is even though courts can review the sham marriage determination if the visa is initially denied on that basis. So in this narrow context, it's not subject to federal court review. Nine to zero. Justice Jackson with the pen.

[Justice Kagan]

A lot of the cast members of 90 Day Fiance are going to be in for a. Yeah, unpleasant surprise.

[Kate Shaw]

The men's were not happy with our pronunciation of the next case the first time we when we previewed it. So we'll get it right this time. Nvidia Corp vs Omen J or Fonder AB but Nvidia is the next next case we got kind of. But basically, in what seems to be a trend, the Court didn't actually issue a decision in the Nvidia case. Rather, they dismissed the securities fraud dispute and the crux of the suit. Just as a reminder, since people were so distracted by my mispronunciation, they probably can't even remember what the case was about. But it's about a shareholder's claim that Nvidia did not disclose the extent to which sales to crypto miners rather than gaming companies put the value of their shares at risk. The question presented to the Court was whether the complaint was sufficiently specific to make out an allegation of fraud fraud under the Private Securities Litigation Reform Act. And the lower court said the complaint actually did meet the PSLRA's heightened pleading standard.

[Melissa Murray]

Based on the oral argument, it's probably not surprising that the court chose to dismiss the case on the ground that certiorari had been improvidently granted. You'll recall it did the same thing in Facebook versus Amalgamated bank, another shareholder suit. But in the Nvidia case, throughout that Oral argument. A number of the justices commented that the dispute was really, really fact specific. Maybe too fact specific for them to decide. And again, perhaps this was something you might have considered before accepting the case for review. But that's just me, a busy working mom with not a lot of time for bullshit. So here we are. Anyway, the case will go back to the trial court, and the investors will attempt to prove their case against Nvidia.

[Justice Kagan]

Yeah, I love the idea that it's like, oh, this is too fact specific. Too many facts for us to like.

[Melissa Murray]

Well, I mean, you remember Kennedy versus Bremerton School District, where the facts were so, so specific we couldn't get them right.

[Justice Kagan]

Okay. Silver lining is maybe they've recognized they're just not good at facts and so they won't actually engage with any cases that turn with the facts.

[Melissa Murray]

We do the law, not. We are law finders, not fact finders. We find the law lost law that no one's ever heard of, and we surface that.

[Justice Kagan]

Yeah. So it's not just the Supreme Court that has decided not to do its job or not to decide things. The Fifth Circuit also decided to get in on the quiet quitting shtick. The Fifth Circuit decided to rather ostentatiously refuse to decide a case that they had agreed to take up as an en banc court. So the mess here is just incredible.

[Melissa Murray]

It's messy. Very, very messy.

[Justice Kagan]

It is, and I'm here for it. The en banc fifth Circuit chose to affirm the decision of a district court in a case that it had taken en banc and for which it heard oral argument in May 2023. And it did so without issuing an opinion in the case. The order said only the en banc court heard oral argument in this matter in May 2023. That was more than 18 months ago. Moreover, the party's in this case have already endured multiple appeals and remands back to the district court over the course of nine years. Another remand would mean that the appellate proceedings in this manner will have delayed resolution of this case by over a decade. Justice delayed is justice denied. Had we known that it would take a year and a half after Ambach oral argument to issue an opinion, we would not have granted Ambach rehearing. We accordingly affirm, end quote. And that's the extent of the order.

[Kate Shaw]

Okay, so the most important thing about this order is the insane infighting on display in the separate writings. But just for one second to tell you that there was a case here which was about whether plaintiffs could sue and seek Civil penalties under the Clean Water Act. But what is the most interesting is no specifics about that legal question, but the fact that in addition to this text of the order that Leah just read, the case generated this flurry of separate opinions in which the justices really.

[Justice Kagan]

Seem judges do not give them promotion.

[Melissa Murray]

How sick are you? Like, are you okay?

[Kate Shaw]

Wow.

[Melissa Murray]

How much?

[Kate Shaw]

Yeah, a lot of dayquil. I'm on a lot of dayquil. That's my excuse.

[Justice Kagan]

Okay.

[Kate Shaw]

Yeah. Judges, not justices. The judges of that court. Although we did call them the Supreme Court of the fifth Circuit last week.

[Melissa Murray]

That might be why.

[Kate Shaw]

Why I just inadvertently gave them that promotion.

[Melissa Murray]

Don't blame this on us.

[Justice Kagan]

They've decided to take on some of the powers that the Supreme Court has here. So we'll get to that.

[Kate Shaw]

They sure. Yeah, they, they. They sure did. Anyway, so for now, just Judges on the 5th Circuit seem to air some of the courts really dirty laundry, accusing one another of preventing the court from reaching a decision. So there is a separate writing by count them Judge Oldham, Chief Judge Elrod, Judge Richmond, Judge Jones, Judge Davis, and Judge Ho.

[Melissa Murray]

So basically, they took 18 months. They have nothing to show for it. And so they have decided to stick with the district court opinion. And then, just for fun, offered us 150 plus pages of irreverent sniping at one another. And the tldr of all of this tea seems to be that the 5th Circuit en banc, split 8 to 8 over the question of reversing and affirming. And there was one judge, the ninth judge, who happens to be one Jim Ho, who apparently refused to make a decision and instead decided, insisted really on doing his own thing, such that the court was deadlocked and couldn't get a majority to do anything. This is the same Poe who seems to always be auditioning to be Justice Thomas replacement on the Supreme Court. And so I don't know if he's gonna get the votes of his colleagues when America's next top Supreme Court justice comes to the Lone Star estate. But I mean, Judge Oldham's separate writing can only be described as pissy, right? He's real pissed. It accuses the court of making up a procedural maneuver that doesn't exist. This would be dismissing en banc review as improvidently granted, slash ordered, or vacating a rehearing order as improvidently granted. I guess a vig. He accuses the court of announcing a, quote, new shot clock for disembonking a case that's the first time disembonking has been used. And Judge Oldham underscored all of this by insisting that he emphatically dissented, just in case you were not sure. He also adds that, quote, the majority per curiam opinion is bad, but Judge Davis concurrence is worse. Meow.

[Justice Kagan]

Bowl of milk, table 2. This is seriously like untucked of drag race. Like, you're not getting the full story.

[Melissa Murray]

Unless this is a reunion. Real Housewives of New Orleans. I know.

[Justice Kagan]

Well, he saw what Judge Jones did at the National Federal Society's convention, and he's like. He's like, I want to be a housewife. Right, Exactly.

[Melissa Murray]

I've got big meanie leaks, energy. And you're going to see it because.

[Kate Shaw]

We'Re not even done with old.

[Melissa Murray]

We're not done. No.

[Kate Shaw]

So. So Oldham, after saying that the per curiam opinion is bad and Judge Davis's concurrence is worse, proceeds then to go after Judge Ho and says that over a period of several years, Judge Ho cast four separate votes that would have led to different results in this case. Some affirming, some vacating, some reinstating the district court decision in the course of refusing to decide the case as an en ban court, Some not. I mean, this is of course in the dictionary under impartial, principled, consistent judging. Oldham included a chart showing the different votes that h. Judge Ho cast in this case.

[Justice Kagan]

Yeah. And you know, not to be outdone, Judge Ho responds by suggesting that maybe the court shouldn't take big corporate cases en banc, but only political ones. So he writes, quote, I'd focus our limited en banc resources on advancing the rule of law where we need it the most, protecting our national borders and protecting our constitutional rights, end quote.

[Melissa Murray]

This man from the invading hordes.

[Justice Kagan]

This man could not try harder for that Supreme Court. Like, it would be impossible. He is already doing so much.

[Melissa Murray]

It is very Meredith Gray, like, pick me, choose me.

[Justice Kagan]

Yes.

[Melissa Murray]

Nominate me.

[Justice Kagan]

Yes. And Judge Oldham is over it. Judge Jones is also over it and pretty much comes out and says, this entire thing is Jim Ho's doing. She writes, quote, it is most unfortunate that because of one judge's refusal to vote, this court has taken no position on this issue, end quote. The issue being whether the plaintiffs had standing and, like, could seek the penalties in this case. It's just 10 bucks.

[Melissa Murray]

She had all of his draft opinions in a file and she brandished them during conference and accused him of undermining the judiciary.

[Justice Kagan]

She should have included a video of that right in her dissent. That was the missing.

[Melissa Murray]

I appreciate that. She's an equal opportunity destroyer. It's not just progressives like Steve Waddock. She'll. She'll eat her own.

[Justice Kagan]

Enough hatred to go around. But just stepping back, you know, it is of course, a judge's job to reach a decision in a case. Refusing to do so, that is not judicial or judicious. And sometimes reaching a decision requires compromise. And of course, that is something that these 5th Circuit judges are temperamentally incapable of doing. And here it just puts into stark religion how this temperament, like this approach is fundamentally at odds with the position of being a judge. You know.

[Melissa Murray]

You know what, Leah? You're not being generous enough here. This is a species of judicial restraint. We are restraining from reaching a conclusion. This is modesty, humility.

[Justice Kagan]

This is the passive virtues. I see neutral principles. Deciding not to decide.

[Melissa Murray]

I mean, love it. Judicial minimalism, you know, it's not minimalism.

[Kate Shaw]

Just raising your hand and saying, let's talk about the Constitution and the border in a totally fucking unrelated case. That is modesty.

[Melissa Murray]

Minimalism.

[Justice Kagan]

Also, like, imagine the Post argument deliberations in the en banc court, right? Like one judge. I affirm. I reverse. I vacate. I affirm. I reverse. Judge Jim Ho. I refuse. I refuse to cast a vote. Like, what does that even look like or sound like?

[Melissa Murray]

I think we just did.

[Kate Shaw]

Not how any of this works. Not how any of this sounds like.

[Melissa Murray]

How it just sounded.

[Justice Kagan]

Yeah.

[Melissa Murray]

Strict Scrutiny is brought to you by the Washington Post.

[J]

I love the Washington Post. Now, it's not my hometown paper, it's.

[Melissa Murray]

True, but it doesn't have to be.

[J]

Because the Washington Post is America's newspaper. It's got everything. National news. It also has local news from the Northern Virginia area, which always reminds me of my time at uva. But then there are also great stories.

[Melissa Murray]

From all around the country.

[J]

Great columnists like strict scrutiny, super guest Ruth Marcus, as well as terrific coverage of the court from folks like Ann Marimo. It's a must read every single time.

[Melissa Murray]

So you're busy, I get it.

[J]

But if you have time for listening to strict scrutiny, you can also make some time for the Washington Post. The Washington Post is one of my go to reads when it comes to understanding how the day's current events impact me and my family. And right now, you can go to washingtonpost.com strict and you can subscribe to the Washington post for just $0.50 per week for your first year. If you listen to strict scrutiny like I know you do, you know the great work that the Washington Post does on topics like the court Capitol Hill, the economy, climate change, foreign policy, and so much more. It's a must read every single day. And at just 50 cents per week for your first year year, it's easier than ever to subscribe. I just read the Washington Post this morning. I was reading an article about Amy Coney Barrett written by one of my favorite Washington Post journalists, Ann Marimo, who covers the court. I love her court coverage. I love that she really kind of digs in and tries to get into the dynamics between the justices and likes to spill the tea. And so do I. Go to washingtonpost.comstrict to subscribe for just 50 cents per week for your first year. That's 80% off their typical offer, so this is truly a steal. Once again, that's washingtonpost.com strict to subscribe for just 50 cents per week for your first year.

[Justice Kagan]

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[Kate Shaw]

Although it's hard to top that, let's turn to some additional court culture and culture in other courts specifically. So starting with the TikTok case, the D.C. circuit issued what do you know an opinion in a case, in a very anticipated case, right. About the law that could end TikTok access in the United States? Essentially, this law passed by Congress says that TikTok, which is owned by a Chinese company, ByteDance, will shut down by law in the United States by January 19th if it does not find a US buyer before then.

[Melissa Murray]

The law was passed, the government says, out of national security concerns, because China has access to all of the data shared by Americans on TikTok, and using that data, it can manipulate the content in a way that poses a threat to national security. We should note that some legislators said that the ban was based on hostility to certain content and views. What one Republican representative called propaganda and other Republican representatives suggested was content leading younger people to be too pro Palestinian. Anyway, under the First Amendment, if the law is aimed at suppressing certain content or views, it should get rigorous searching, judicial scrutiny. If instead it's not aimed at suppressing content or viewpoints, but is simply about national security, then the review is more deferential. This is why so many people are framing this in terms of national, national security.

[Justice Kagan]

And even if they do frame it in terms of national security, though, there still seem to be some holes in the government's case for the law. So the government doesn't have evidence showing any Chinese content manipulation in the United States, for example. And even if they did, it's unclear if the First Amendment would or should permit censoring content based on the idea that that content could corrupt people's minds or unduly sway them or change their views and just, you know, Also stepping back, TikTok is primarily an app for dance videos. And they're going to have to pry those surprise song videos from My Dead Cold Hands, because watching Taylor Swift's surprise songs on TikTok has literally been a way of, like microdosing a will to live for me. And they, they can't take that away from me. But the D.C. circuit unanimously rejected TikTok's challenge to the law. I think TikTok is likely to ask the Supreme Court to put the law on hold while litigation is ongoing. And we will see what the Supreme Court does.

[Melissa Murray]

We do have a bit of good, if entirely unexpected, news. Fresh from her successful book tour, Justice Ketanji Brown Jackson has crossed another milestone from her bucket list. She recently made her Broadway debut. That's right. No longer content to answer the door during conferences, the most junior justice recently took her place among the scholars of the Great White way. On Saturday, December 14, Jackson appeared for one night only in and Juliet, a jukebox musical that offers a different slant on Shakespeare's Romeo and Juliet. She also participated in a talk back with the audience following the performance. Did any of you see this?

[Kate Shaw]

No, not her. But I have seen the musical. It is delightful. It's a totally.

[Melissa Murray]

It is a delightful. I wish I could see this with her. I was out on Saturday night but. But this sounded fun. I wish she let us know if.

[Kate Shaw]

You read her memoir. You know, she actually is quite a singer. So this is something that, you know, I get her.

[Melissa Murray]

I don't know the details.

[Kate Shaw]

I don't think it was a singing. I don't think it was a singing role. I think it was a non speaking role where she just like did something on stage, but I don't know what. Anyway, well, this isn't for her and time in the audience.

[Melissa Murray]

Do you remember when Justice Ginsburg appeared in the opera at.

[Justice Kagan]

Yes.

[Melissa Murray]

In D.C. but it wasn't Broadway. Broadway. Broadway's different. I think. I think that's right. But good, good for her. I love that she's breaking out, doesn't have to just confine herself to answering the door like she can do other things. And I love that for her. I hope Dr. Patrick Jackson presented her with an enormous bouquet of flowers afterwards.

[Kate Shaw]

Oh, you know he did.

[Melissa Murray]

Yes, of course he did. Husbands everywhere take note.

[Kate Shaw]

So in less auspicious news, a Trump judge in the District of North Dakota blocked the Biden administration's rule that allowed DACA recipients to get health insurance on the ACA market place. This is a ruling that applies to 19 states. So not only are these judges throwing into question the actual status of daca, and of course the incoming administration will, you know, at best throw it into further question. But screwing with people's health insurance in the meantime, like the sadism really knows no bounds.

[Justice Kagan]

Yeah. Also under the less auspicious category, we had some listeners ask us to flag this development, which is is something to add to our Cancel Culture Watch, which is all the things about how left wing political correctness has gotten out of control. So this incident comes out of Louisiana where the Louisiana governor has called on Louisiana State University to punish a law professor for statements the professor made in the classroom about the 2024 election, the governor went so far as to share a video of the professor on social media and send a formal letter to LSU calling on officials to punish the professor. Once again, left wing political correctness and censorship just too much. But I think this is a frightening indication of something you alluded to. Maybe A few episodes ago, Kate, which is, you know, the Republican Party treating the Academy as the opposition party and punching bag. Since they are always the victim. Right. They need to identify somebody who is supposedly victimizing them. And as they are about to, who have all the power in the federal government, you know, they are turning to Media Academy and others as the victimizers.

[Melissa Murray]

All right, here's some better news. In a unanimous decision, the Montana Supreme Court kept gender affirming medical care available to minors on current terms. While litigation over Montana's ban on such care is pending in the state court system. This is a ruling that upheld a preliminary injunction that barred the enforcement of the ban whose constitutionality has been challenged. So we've already mentioned that President elect Trump has tapped Harmeet Dhillon to be the head of the DOJ's Civil Rights Division. There's obviously been a lot of discussion about the administration's picks from Matt Gaetz, whose nomination has failed, to Pete Hegseth, whose nomination has not failed. Despite some really interesting email emails from his mom and some really interesting profiles by reporters like Jane Mayer, he seems to be on track to getting confirmed as secretary of defense. So, you know, there's that. We've also had the selection of Cash Patel to head the FBI. And there was news last week of Christopher Wray stepping down voluntarily before he can be fired by Donald Trump in order to install Cash Beta Patel in that seat. I don't know what more to say about all of this. Like, it is literally like watching a car wreck.

[Kate Shaw]

Yeah. But also Patel install but Patel has to be confirmed by the Senate as well, right? Like there are ways to get him installed in other positions via recess.

[Melissa Murray]

Yeah, you're right. I'm assuming the Senate is going to roll over. Why would I assume that? I don't know.

[Justice Kagan]

Because when it rains, it pours. We also have some newsy culture items related to judicial ethics. So the judicial ethicist expert has weigh in. I'm of course talking about Mitch McConnell who has some opinions. So two district court judges have withdrawn their announcements and plans to retire and take senior status, likely because of the change in administration and the fact that their successors weren't confirmed. And Senator McConnell doesn't want anyone else to do that, especially the court of Appeals judges whom the Biden administration or at least the Senate Democrats agreed not to confirm success successors for. So on the Senate floor, McConnell called any decision to change plans, quote, partisan. It also apparently, quote, undermines the integrity of the judiciary. It exposes bold Democratic blue where there should only be Black robes, end quote. Said the guy who ensured that the only thing under black robes would be MAGA red and who was reportedly calling around to judges urging them to retire during the first Trump administration. And obviously, this is galling and hypocritical, but I think one thing to underscore about it is it is part of a trend of what I think some people are calling like, gangster government. I mean, I would be concerned that McConnell is potentially drumming up hostility toward these judges. Like, you know, if he is going to go so far as to publicly name and shame them for a change of plans. You. We have seen absolutely horrific episodes of attacks, physical attacks on judges and their families. And I think, you know, this strategy needs to be evaluated in that light.

[Melissa Murray]

Well, I mean, everyone changes their plans. I mean, the Senate Judiciary Committee was going to have a hearing for Merrick Garland, and then it changed its plans and said, we're just going to wait until after the election and let the people inform the hearing.

[Justice Kagan]

The Senate Judiciary Committee was going to look into the accusations against Brett Kavanaugh.

[Melissa Murray]

Then they changed their plan.

[Justice Kagan]

They changed their mind.

[Melissa Murray]

So, I mean, it happens. Like, I mean, yeah, plans change, all right. You know whose plans don't change? The Koch brothers. Their plans stay the same, it seems. And according to recent reporting from the Washington Post, Justin Juvenile, John Swamp Wayne and Anne Marimo, the Koch brothers had some real plans to overturn the Chevron doctrine, and they succeeded. So, as you know from our own coverage, the Koch brothers network has been very interested in deregulation for some time. And as we have intimated on this podcast, it seemed like there were lots of close associations between the effort to overrule Chevron and the interest in deregulation that the Koch brothers network has spearheaded over the years. So the reporting here was not really surprising to us as this trio turned up. There are a lot of close associations between this network and the effort to deregulate. Lots of ties between various pockets of the conservative legal movement and the multi pronged effort to overrule Chevron and then to extend the ruling in Loper Bright and Relentless to thwart even more governmental regulation of corporate interests. But one thing that was actually notable about the reporting is that those seeking greater deregulation in the future have relied on amicus briefs filed by those seeking to preserve Chevron, which detailed the many regulations that would be vulnerable if Chevron fell. And they have used those amicus briefs to craft a roadmap for future challenges that would extend the logic of Loper Bright and Relentless, which I Mean, again, raises, I think, some real strategy questions for the left. If these arguments aren't even going to get any purchase with these Justices, but they are instead going to cede future efforts to expand this deregulatory interest. Maybe we just ought to close up shop on those kinds of briefs. The other thing that I wanted to note about this reporting was they also made explicit note of Justice Thomas Thomas's curious 180 degree turn on Chevron, which is to say that he was for it at one point and then he was against it. And while the reporters don't draw any conclusions as to why Justice Thomas had this about face, they do note that his change in his views of Chevron came sometime after he started hanging out at the Bohemian Grove with the Koch brothers and their network of friends. And again, I just want to understand. Score is not unconstitutional to have friends. It is unconstitutional to regulate and change your mind. Yes, yes. And change your mind.

[Justice Kagan]

Unless you're changing your mind about Chevron, about the regulation.

[Melissa Murray]

That's just, that's fine.

[Justice Kagan]

The judge some liberties, some parental rights.

[Melissa Murray]

If your friends help you to change your mind, it's especially constitutional.

[Justice Kagan]

Yes.

[Melissa Murray]

Unless your friends are liberal. And then it's not. No.

[Justice Kagan]

Yeah.

[Kate Shaw]

The thing you said a minute ago though, Melissa, about amicus briefs as road maps for future challenges, I feel like dissents present the same problem. Right. Like, and, and I think we've talked about this before. There are just really hard tactical questions presenting the Court's liberals in the next couple of years, which is do you speak the truth about the actual implications of some of the Court's really big decisions and provide roadmaps for actually full implementation, or do you hold your fire, you know, podcast about us? Yeah. All right. Well, we all, we're all helping the right. I don't know, similar questions.

[Melissa Murray]

We should put some different Easter eggs in there for him.

[Kate Shaw]

A New Year's resolution. We will get those. We'll get, we'll get to work on those.

[Melissa Murray]

You know what would be great? Just the ticket. You know what you should do? Yeah, that's what we should do.

[Kate Shaw]

Yeah. Yeah. Because we know they're all listening.

[Justice Kagan]

Right.

[Kate Shaw]

Okay. We wanted to highlight a case to watch out of the 8th Circuit. That court granted rehearing on bank in a case about whether mandatory equity training violates the first and 14th Amendments. The panel had concluded correctly that it did not. But you know, the court taking the case on bank could be ominous unless they decide to go the way the fifth wicket in which case doesn't matter. But this case could be one of the sort of opening or, you know, latest salvos in the new frontier in the fight against DEI initiatives, equity diversity. So we're going to keep an eye on it as the court takes it up.

[Justice Kagan]

Bank and I think related to that case was another Justices Alito and Thomas dissent from the Supreme Court's decision not to hear a case about some admissions policies of Boston schools. So Boston city schools admitted a percentage of students based on GPAs and test scores and then at the next step considered students zip codes and tried to admit students from areas with lower median household incomes. You'll note there was no mention of race there. That is race neutral control. But the city schools were thinking about racial equity and trying to achieve diversity. So naturally these guys think it's illegal. The Supreme Court declined to hear the case, but their writing, as well as Justice Gorsuch's, which I'll note in a second, is a warning sign of what might come and the possibility that the Supreme Court will police race neutral efforts to achieve diversity. So Justice Gorsuch wrote a statement about the case. So not a dissent from the denial of certior, but a statement making new stuff up in which he noted that Boston had changed its policies and that's why the Court didn't review the case.

[Melissa Murray]

You can never change your mind.

[Justice Kagan]

Well, those policies were no longer in effect, but you know, it's possible they might be looking for another school and another policy to get their grubby little fingers all over. Hard to rule out.

[Melissa Murray]

Well, this is very much in the flavor of the Thomas Jefferson High School case that they denied cert onto I. And the bottom line is even thinking about diversity unconstitutional.

[Justice Kagan]

The real thought control, thought police, we are about to find out.

[Melissa Murray]

Also related, it seems that the fifth Circuit actually can issue a decision and can do so en banc. But it seems that that en banc decision making is really confined to circumstances where they're dealing with DEI. So in this particular en banc decision, the Fifth Circuit held that the SEC is not permitted to approve NASDAQ's diversity disclosure rules. So there you are. Minimalism, yeah, but maximalism, why not both? Anyway, finally, the Supreme Court is starting an online lottery today for public seating for oral arguments. They're starting it as a pilot program that will begin with the February 2025 arguments. It will begin as a hybrid system with some public seats being available via the lottery and some being available through the traditional in person line. So if you want a front row seat to this disaster piece theater, just go to supreme court.gov and check out the courtroom seating link and that will get you to the online ticketing page. I guarantee there's going to be some kind of Ticketmaster meltdown in the manner of the ERAS tour with the wait.

[Kate Shaw]

Like with the tens of millions of Taylor Swift esque fans just vying to get in to see them dig some cases.

[Melissa Murray]

I don't know.

[Kate Shaw]

I mean, if they take up the TikTok case, I think there will be a lot of interest. Like there are things that will definitely generate, but I just don't get the sense I haven't been there in a long time, but I don't get the sense that like the lines around the block are.

[Justice Kagan]

Well, there are the occasional cases in which people camp out, you know, like overnight. And of course that's what this is designed to address. But of yeah, right. As a matter of course, it's not like there are hordes of people lining up to hear, you know, about Lanama profit discouragements.

[Melissa Murray]

I mean, I think that's only because nobody can tell who the Dewberry in question is. I'm going to call one of you Dewberry from now on.

[Justice Kagan]

Better than Dieselberry.

[Melissa Murray]

Dewberry.

[Kate Shaw]

That's. That's true. Dewberry Engineers Dewberry Group One last thing before we go Critics are calling Empire City the untold origin story of the nypd. Riveting, thought provoking and essential listening. If you haven't started it yet, now is the perfect time. It has been hailed by Vulture as not just an expose, but a call to action. In just eight episodes, Empire City takes you back to the origins of the NYPD and completely reframes the way we think about policing today. Listen to the series now wherever you get your podcasts or binge all episodes ad free on Wondery plus, in the Wonder app or on Apple Podcast Casts.

[Justice Kagan]

Strict Scrutiny is a crooked media production hosted and executive produced by me, Leah Lippman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our Associate producer. Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Haringer and ari Schwartz. Matt DeGroat is our head of production. Thanks to our digital team. Phoebe Bradford and Jo Matoski subscribe to strict scrutiny on YouTube. To catch full episodes, you can find [e-mail] trickscrutinypodcast 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.

[Leah Lippman]

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[Kate Shaw]

Finally, I am in control, and critics.

[Leah Lippman]

Agree it's a towering tour de force performance from Angelina Jolie and a career best.

[Kate Shaw]

My life is opera. There is no reason in Opera Maria.

[Leah Lippman]

Directed by Pablo Laray for your consideration. Now playing it's Le Peterson on Netflix.