Making Sense of the Election and What It Means for the Court

Summary

Strict Scrutiny Episode: "Making Sense of the Election and What It Means for the Court"

Hosts: Leah Litman, Kate Shaw
Guest: None (Melissa Murray absent)
Date: [Specific Air Date Not Provided]

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1. Introduction

The episode kicks off with Leah Litman and Kate Shaw addressing their listeners amidst the aftermath of the recent U.S. presidential election. Leah introduces herself at [01:16], setting the stage for a deep dive into the election's ramifications for the Supreme Court and the broader legal landscape.

2. Emotional Reactions to the Election

The hosts open up about their personal emotional journeys following the election results.

• Leah Litman ([02:06]): Shares her struggle with the immediate aftermath of the election, describing her day as "surviving, not thriving." She recounts waking up at 2 AM to early results indicating a Trump win in Pennsylvania, leading to sleeplessness and emotional distress.

  "I was not okay that day. A colleague sat by my office before I went to teach, asked how I was only to have me burst into tears." ([02:59])

• Kate Shaw ([03:44]): Expresses feeling "pretty numb" for about 48 hours post-election. She details her hectic schedule transitioning from election coverage to teaching, which delayed her emotional processing until after class.

3. Reflections on Election Results and Implications for the Court

Leah and Kate delve into the complexities behind the election outcomes, rejecting simplistic explanations and emphasizing the multifaceted reasons behind voter decisions.

• Leah Litman ([09:39]): Criticizes one-dimensional analyses blaming the Democratic primary focus on women's issues for the loss. She highlights broader challenges like media polarization, economic concerns, and effective Republican campaigning.

  "If you're holding back on travel plans this holiday break because you're afraid of the language gap, well, no need to mind the gap..." ([09:39]) (Note: This quote seems misplaced and may refer to an advertisement; adjust accordingly.)

• Kate Shaw ([12:11]): Stresses the importance of shoring up the Constitution amidst declining trust in institutions. She advocates for defending core constitutional values like free expression, due process, and equality as a foundation for meaningful opposition.

  "I don't want to sound naive and suggest that that will save us either, but that there are individuals inside institutions..." ([12:11])

4. Listener Questions and Legal Issues

Leah addresses questions from listeners regarding the interplay between state-level reproductive freedoms and potential federal abortion bans.

• Listener Question ([27:19]): "How do state level protections for reproductive freedom relate to a possible federal abortion ban or revival of the Comstock Act?"

  Leah Litman ([27:58]): Clarifies that state laws cannot provide defenses against federal law violations.

  "State law does not provide a defense to federal law. It cannot immunize people from violating federal law." ([27:58])

• Additional Question ([27:58]): "Can women who are killed or injured because of or by abortion bans sue the states or justices for damages?"

  Kate Shaw ([28:32]): Emphasizes that justices and states are immune from such lawsuits absent specific exceptions.

  "No, the remedy, it may be legal long term, it may be political short term, but it is not in those kinds of lawsuits." ([28:32])

5. Implications for the Supreme Court

The hosts discuss the potential impact of the election on the Supreme Court, particularly focusing on possible retirements and nominations.

• Retirements ([28:32]-[30:00]): Justices Thomas and Alito are likely to retire, opening up slots for new nominees. The Senate’s current composition suggests that Republican nominees could be confirmed without needing Democratic support.

  "Justice Alito's wife had indicated he wanted to step down. So that in particular seems like it's gonna happen." ([29:23])

• Potential Nominees ([30:00]-[33:37]):

  • Judge Jim Ho ([30:17]): A Fifth Circuit judge known for his stance on abortion-related cases.

    "States can commandeer women's uteri to spark joy." ([30:17])

  • Judge Andy Oldham ([31:08]): Another Fifth Circuit judge involved in abortion-related rulings.

    "He's also the guy who wrote a separate opinion suggesting maybe the entire administrative state is unconstitutional." ([31:11])

  • Judge Thapar ([32:04]): An appellate judge close to Senator Mitch McConnell, advocating for originalism in law schools.

    "He has something going for them, you know, before the election he called on donors to like stop supporting law schools that weren't supporting or teaching originalism." ([32:04])

• Concerns ([33:08]-[33:37]): The hosts express worries about future public perception of the Court and the importance of confirming lower court judges to serve as testing grounds for administration policies.

  "Any praise of any limiting decisions that this court issues... has to be paired with those reminders." ([33:27])

6. Current Supreme Court Cases Discussed

Leah and Kate provide an overview of significant cases currently before the Supreme Court.

1. Voting Rights Act Case ([38:12]-[42:19]):

   • Background: Following the Supreme Court's affirmation of the Voting Rights Act (VRA) in Allen v. Milligan ([39:17]), Louisiana challenged the subsequent redistricting map designed to remedy VRA violations.
   • Issue: Whether state legislature's efforts to correct VRA violations through additional opportunity districts constitute unconstitutional racial gerrymandering.
   • Discussion: The Court is revisiting the balance between partisan gerrymandering and race-based districting, potentially narrowing the scope of VRA protections.

2. Wisconsin Bell vs. United States ex rel. Todd ([38:12]-[47:53]):

   • Focus: Whether the False Claims Act applies to the FCC's E-Rate program, which involves private companies managing funds for broadband access.
   • Arguments: The challengers argue that since funds are managed by private entities, the government isn't providing the money, affecting FCA claims.
   • Hearing Highlights: Justices Kagan and Barrett suggested multiple entities might be considered providers, complicating the challengers' stance.

   "It's necessary to preserve life and everything else." ([53:08]) (Note: Potential mix-up with another case; ensure accurate attribution.)

3. Advocate Christ Medical vs. Becerra ([48:34]-[53:48]):

   • Context: A follow-up to Empire Health vs. Becerra, this case examines reimbursement rates for hospitals serving Social Security beneficiaries.
   • Issue: Whether entitlement under Social Security means eligibility to receive benefits without reapplying, akin to Medicare standards.
   • Outcome Unclear: Justices displayed mixed responses, reflecting uncertainty in their interpretations.

4. Facebook vs. Amalgamated Bank ([53:48]-[55:10]):

   • Subject: Required pleadings in securities law cases, specifically relating to disclosure of past events affecting future risk statements.
   • Discussions: The Court grappled with whether failure to disclose past events inherently leads to liability or if it depends on implied statements about future risks.
   • Observation: Justices appeared unsure about the case's framing, indicating potential difficulties in reaching a consensus.

7. Conclusion

As the episode wraps up, Kate Shaw reflects on the importance of community and support systems in navigating political and emotional turmoil.

"We're going to keep doing that and to be here, like, for one another." ([55:11])

Leah echoes the sentiment, emphasizing resilience and the anticipation of future emotional responses.

"The anger will come back. Right. It's boiling inside of me." ([55:07])

The hosts reaffirm their commitment to staying connected with their audience and each other as they continue to analyze and navigate the evolving political and legal landscape.

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Notable Quotes:

• Leah Litman ([02:59]): "I was not okay that day. A colleague sat by my office before I went to teach, asked how I was only to have me burst into tears."

• Kate Shaw ([12:11]): "I don't want to sound naive and suggest that that will save us either, but that there are individuals inside institutions..."

• Leah Litman ([27:58]): "State law does not provide a defense to federal law. It cannot immunize people from violating federal law."

• Kate Shaw ([28:32]): "No, the remedy, it may be legal long term, it may be political short term, but it is not in those kinds of lawsuits."

• Leah Litman ([09:39]): "It wasn't a campaign that was about identity politics and wokeness and the idea that she was too centrist."

• Kate Shaw ([33:27]): "Any praise of any limiting decisions that this court issues... has to be paired with those reminders."

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Conclusion: This episode of "Strict Scrutiny" offers a poignant exploration of the intersection between recent electoral outcomes and their profound implications for the U.S. Supreme Court. Through candid emotional disclosures and incisive legal analysis, Leah Litman and Kate Shaw provide listeners with a comprehensive understanding of the current judicial landscape and the potential shifts on the horizon.

Transcript

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[Kate Shaw]

Mr. Chief justice, may it please report.

[Leah Litman]

It's an old joke, but when I 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 sex.

[Leah Litman]

All I ask of our brethren is.

[Kate Shaw]

That they take their feet or Pharnec.

[Leah Litman]

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

[Kate Shaw]

And I'm Kate Shaw. And Melissa, unfortunately, is not with us today. She is literally out of the continental United States. Although do not worry, she is not out of the United States for good. She will be back and hopefully we'll get her to share some thoughts with us next week. And as you know, if you're listening, we are a Supreme Court podcast, and the Court, as we have said many times, is shaped by and a product of electoral politics. And this latest election in particular, we also said repeatedly was going to have some pretty seismic consequences for the Supreme Court. But before we turn to a discussion of the election and the Court, as well as a discussion of what's happened at the Court this last week, we wanted to just take a couple of minutes and some time and some space to talk more generally about the election.

[Leah Litman]

As such, we are obviously not an electoral politics podcast, and I'm not going to pretend I have any pronouncements or unique insights about what exactly happened and why it did. But just as a human being, I have a lot of feelings about what happened, as I'm sure many of our listeners do and wanted to make time for that, in part because it would feel weird and disorienting not to acknowledge it, even if it's not our primary content.

[Kate Shaw]

So we are going to try to work through some of that. And after that we will turn to a discussion that does link what this election might mean more specifically to the Supreme Court, and we will finally then break down what happened at the Court the past week including one important case added to the court's docket and also the arguments that the court heard last week. But as we said first, we're going to spend some time talking more generally. Leah, how are you doing?

[Leah Litman]

I am not great. I am surviving, not thriving. I was really not okay, Wednesday at least. So I'm early to bed, early to rise. So when it was clear that the initial returns were going to have things too early to call in many places, I went to bed and set my alarm for early. I ended up waking up even earlier than the alarm, like 2am to see Pennsylvania called for Trump, and I knew I wasn't going to get back to sleep, so woke up my poor dog. My partner was out of town. We listened to some of my like cringe in your feelings music, watched the sunrise, watch it play out, and then went off to teach at 8:55 in the morning, at which point the race had been called. And I was not okay that day. A colleague sat by my office before I went to teach, asked how I was only to have me burst into tears.

[Kate Shaw]

I have definitely been pretty numb since Tuesday night. I think a little bit less numb now, but I think that was my overriding sensation for I don't know what, 48 hours maybe. And on Tuesday night I was at ABC doing their kind of election coverage and also into Wednesday morning. So I was kind of processing but also kind of doing some analysis on the fly. And then I went straight from Good Morning America to the Amtrak to Philadelphia to teach administrative law in the afternoon. And honestly, I think because it was just so frenetic, it hadn't really sunk in until after class and we did talk about the election some in my administrative law class. And then I said to students if they wanted to talk more to come back to my office after class and a bunch of them did. And I feel like that's when it was a little bit more starting to process. And one of my students gave me this little plush emotional support potato that that is what almost sort of set me off in the same way that your colleague's query sort of set you off that morning. But then I raced back to New York to see my husb and my kids for the first time since the new reality had sort of set in. So that was just essentially the sort of scene setter for how I my Tuesday to Wednesday looked. Yeah, okay, so do you want to talk through a little bit what you've been thinking and feeling in the Tuesday to Wednesday and since, you know, you.

[Leah Litman]

Described yourself as numb and I Am at a point where this is very atypical. Like I do not have the emotional space or register for anger right now. It's grief maybe.

[Kate Shaw]

Yeah.

[Leah Litman]

Have you read the Throne of Glass novels by Sarah Moss?

[Kate Shaw]

No.

[Leah Litman]

By chance.

[Kate Shaw]

No. I've read some of the Court of Throne of Roses, the first couple, but this is a different series.

[Leah Litman]

Yeah, this is another series analogy. Might not totally track for you, but there's a world character, Selena Sardothian, where people who have magic, they need to use their magic or it kind of bottles up inside them and just becomes uncontrollable and spills over. And I feel like that is going to happen to me at some point with the anger where I am not feeling it or using it now. And at some point it is just going to become uncontrollable. My favorite peloton instructor, they're not allowed to talk about politics, but said on the post election class, you either need to lean into the dissociation or the anger. And I feel like I'm into dissociation right now. But you know, we said this was gonna partially be about feelings. And I think part of what is driving this for me is this was the first presidential election since Dobbs. A big part of the Democratic Party's strategy was to run on that. The consequences of the decision to point out that the Republican party had succeeded in bringing about a world where women are dying, where women are bleeding out in hospital parking lots and to have a majority of the country vote for that, for no life saving health, saving healthcare for you is a gut punch like it's not just an electoral college win. It is a majority of voters. And for at least for me, it's been made worse by some of the pre election and immediately post election retrospectives that blamed flagging support for the Democratic party on the Democrats emphasis on women's lives. And after we recorded the last episode, ProPublica released an additional story about another Texas woman, really a girl who died because Texas's abortion restrictions delayed her medical care. Nevaeh Crane was 18 when she learned she was pregnant. But on the day of her baby shower, developed a fever, severe abdominal pain, she was vomiting. She was turned away by two emergency rooms, including one that had diagnosed her with sepsis, the life threatening and quickly developing infection. But because her fetus had detectable cardiac activity, she was sent away. At the third hospital, they insisted on multiple ultrasounds before moving her to intensive care. You know which point it's too late. Her organs started to fail and hours later she is dead.

[Kate Shaw]

That was such a gutting story. And it really underscores how in a post Roe world, in states with these savage abortion restrictions, pregnant women and girls are treated as basically radioactive. Healthcare providers are terrified of offering them what might be the needed, in this case, life saving medical care, which is an abortion procedure. They knew that she had sepsis and all of the physicians and other medical personnel know that as a life threatening and sometimes incredibly fast developing and deteriorating infection. And yet nobody would provide her the basic care that she needed. And anyway, the story, if you haven't read it, just does detail the excruciating kind of progression of her illness, the delay, the resulting horrific symptoms, extreme pain, essentially torture and ultimately her death. And you said, Leah, like that's what people voted for. And there's no question that, you know, in I think tangible terms that is what they voted for. But what is way less clear to me is whether that's why they voted the way they voted. Right. And I too have read and listened to a lot of Long Think pieces in the last few days and I'm, you know, I'm sure a lot of our listeners have as well. And there is a ton to unpack and I too have very little tolerance for one of the kind of rounds of recriminations that we're hearing, which is that there is too much focus on abortion and on women's issues. But one thing that I do think is clear from the more clear eyed analyses that are out there is that Harris really did run a kick ass campaign and you can quarrel with a thousand discrete choices that were made, but also she was in an essentially impossible position in hindsight at least as basically an incumbent running in both an anti incumbency moment and also one which people feel like deeply squeezed by inflation and high housing prices and things like that. And also that the media landscape has shifted in a way that was immensely favorable to Trump, and also that he had billionaires pumping hundreds of millions of dollars into his cause and that those things were kind of a perfect storm of insurmountable electoral forces. And again, I also want to make clear that podsave guys did a great day after kind of analysis of some of this and there's data out there and there's going to be a lot more data in the coming months. And so there are lots of really smart people like Trump to go deep on understanding. And in some ways, while I feel exhausted by all of already the retrospectives, I also in some ways find it easier to look backwards at what happened than to really dwell in the what is coming, I don't know which is worse, which is harder. They're both really important. But I just don't think we really, in terms of the backward looking piece of it, just really know yet.

[Leah Litman]

No. And again, just more feelings. I have been extremely frustrated by people using Kamala Harris loss to just confirm their priors and insist, you know, had she done this one thing that obviously I've believed in or agreed with, right, for the better part of a decade, she would have won. The evidence is just way too complicated for that. There wasn't a sole cause, this was not a close defeat, right. In many respects. So the idea that there was just one thing on the margins seems a little odd. But it wasn't a campaign that was about identity politics and wokeness and the idea that she was too centrist. I mean, several more Democratic centrist candidates outperformed her, as did more progressive ones. And everything that people say she didn't do right, Donald Trump didn't do right, specific policy plans and whatnot. Sherrod Brown, who is the champion of the working class, lost in just one of the more horrific defeats. And it's hard to overlook, as you were saying, the hyperpartisan media polarization and Republicans creation of a media ecosystem that churns out propaganda and disinformation about Democrats and their views. Turns out it's not the drag queens and the LGBTQ community doing the indoctrinating, right? It is the right wing media ecosystem. You can have the best policies, popular policies, but if they're not effectively communicated or breaking through, they're not going to do anything. Right? And if they are not tangibly leading to people's material conditions being improved, it just doesn't matter, right? And even policies that do right, like the child tax credit, right, that does improve people's lives and still it's not popular. And so there's just this host of complicated conditions. Obviously the last few years have been extremely tough on people as so people wanted to vote against the status quo. And it just so happened that voting against the status quo and incumbent here was voting for a wannabe fascist who cozies up to dictators, is openly contemptuous and hostile of women, refused to accept his loss in election, undermined the peaceful transition of power. And all of those factors can't get away from the reality that a majority of Americans voted for that. But some combination of looking backward and looking ahead, I don't think institutions, be they, Congress, the federal courts, mainstream media, are going to save us. And at this point, I think it's a mistake to go all in and defend those institutions that are incapable or unwilling to stand up to the administration and that people rightly, I think, perceive as woefully failing them. Like we need something different.

[Kate Shaw]

If we do believe in democracy, people seem really unhappy with those institutions. So doubling down on the defense of deeply flawed and also deeply unpopular institutions can't be the sort of main action item going forward. One thing I do think is worth shoring up and defending is the Constitution. And I don't, I don't want to sound naive and suggest that that will save us either, but that there are individuals inside institutions, whether that's like various levels of government, state, federal, local, civil society, outside organizations. I don't think abandoning the Constitution in the course of abandoning institutions is the right way forward or is something that we can survive. And again, I don't want to naive, but I do think that what I mean by the Constitution is a number of the core values of free expression, including to dissent and due process and equality, and the core principles in the Constitution will have to be defended by, again, individuals within institutions and outside of institutions. Because I think if we abandon that as well, not to suggest that it's infallible, but that it has in it the core components that actually will supply some fodder for meaningful opposition. And in some ways that's what we have to work with. And so I think in the interest of not succumbing to nihilism, that's not something I'm willing to do.

[Leah Litman]

Yeah, So I don't want to succumb to nihilism either. And I feel like we'll talk a little bit more about that. But for me, whether, like shoring up the Constitution depends a little bit what you mean by, you know, the Constitution. Right. Obviously, the principles you named I think are worth fighting for. Right. And trying to reinforce equality, due process, ability to dissent. But I'm worried that shoring it up in terms of the Constitution also means shoring up the Court, given people's understandings of how things work, and that the Court is kind of the definitive interpreter of the Constitution, even though I don't think that that's descriptively, necessarily accurate nor institutionally ideal. But I just kind of worry about that framing in part because I think some of the reasons why our institutions are ill matched to standing up to the administration and have been failing people are in part attributable to the Constitution, like electoral college, Senate malapportionment. And so I don't really know exactly how I think the best way of like framing the principles worth fighting for is. But obviously I agree, don't abandon everything just in favor of nihilism. Like, that's certainly not what I hope would happen. But just to go back to debriefing the elections results, you know, something else I really put off by in addition to the simple monocausal explanation that confirms all my priors shtick that a lot of people have going on is I don't think we should be blaming entire groups or pointing fingers in that way for the loss. Obviously we saw the huge swings among certain demographics. I know a majority of white women voted for Donald Trump, and I still am not okay with accepting the disastrous consequences that a second Trump administration will have for many of those people. We obviously just described the ProPublica story. I don't wish that on anyone. I wanted Vice President Harris to win because I wanted people's lives to be better. And I still want. And I also don't think it was stupid to try to win. And one of the happier and prouder things looking back on is we saw so many pictures and got so many messages of people in strict scrutiny gear and strict scrutiny listeners participating in organizing, getting out the vote and whatnot. And I never think it is stupid to have hope or to try to make things better. And I also believe there is already evidence that it worked. If you look at the differentials between how Vice President Harris did in swing states where there was a ground game and more campaigning versus other states, right? She outperformed relative in the swing states, which suggests that kind of stuff matters. Right? Talking to people matters, organizing and trying to persuade people matters. Strict scrutiny is brought to you by Quince. It's fall, y'all, and the weather is changing, which means it's time to make sure the wardrobe and the fits match it. 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[Kate Shaw]

So we've mostly been talking about, you know, the top of the ticket. But can we also talk a little bit about the ballot initiatives and abortion in particular? Yes. On Wednesday when I was talking to my students, one of the things I said was while I obviously did not want to downplay the importance of the presidential election, there were lots of Other elections too. And for people who are like in a very dark place, it might be worth spending some time thinking about like another race for a candidate, an initiative, something that did go well and it just is a reminder that democracy is complex and it is layered and sometimes so are people's motivations. Which leads me to some results. I think we need to just like spend a couple of minutes unpacking. So there were 10 states with abortion on the ballot and it did well. Like it got a majority support in eight of those states. It actually was, you know, passed in seven of those states. The differential between 7 and 8 is Florida, of course, where a little north of 57% of voters did want to adopt Amendment 4, which would have added robust abortion protections to the Florida constitution. But it requires a 60% threshold to actually amend the Florida Constitution. So they fell short of that threshold. You had 57% vote Y and 56% voted for Trump. And that is just such a striking figure. And the other one that I think is just so striking is Missouri, which is right, a state that has a total abortion ban, no rape exception. I think it was the first state to pass a total ban after Dobbs and voters amended their state constitution to add protection for abortion to the point of fetal viability. And in Missouri, Trump won by 18 points. Josh Hawley was reelected to the Senate by 15 points. So do you have like any thoughts on either a abortions performance overall on the ballot or those two states in particular?

[Leah Litman]

I'm not sure I have it. On those two states in particular. This is definitely something I want to know more about and that I hope sociologists, political scientists can tell us a little bit more about. Because all I have is anecdote just based on my own canvassing and phone making here in Michigan, which had adopted a reproductive freedom for all ballot initiative in 2022 and then obviously voted for Donald Trump at the top of the ticket in 2024. Although we voted for Alyssa Slotk in the Senate and also expanded the majority of progressive justices on the Michigan Supreme Court. So there were some happy statewide races as well. But again, some things that just came up in canvassing and this is anecdata, so take it with the grain of salt that it is. Some of it is probably going to be confirming my priors, although I think it's consistent with this evidence. I think there was considerable confusion and misunderstanding about the significance of state level protections. I think some people honestly including medical providers, thought that a state protection for reproductive freedom insulated them from the consequences of A anti choice, anti abortion federal government, that is just not true, right? Like state laws cannot provide immunities from violations of federal law. They can't provide defenses to violations of federal law. So I think some was a confusion, misunderstanding. Some of it was just like a permission structure of, well, I want to vote for Trump, but I don't want that aspect of it. So allowing yourself to do both. I think some people honestly thought it was like a signal of something to the Trump administration where if there was enough support for reproductive justice, then in fact the Trump administration wouldn't sign an abortion ban by selling them this false idea that he was not interested in or willing to cater to the anti choice elements of the Republican Party, which is obviously a core constituency. The candidates he is reportedly considering for attorney general, three of the five have come down and endorsed the idea that the Comstock act should be enforced as an abortion ban. I think some other people were doing a calculus which is, well, maybe with some additional money, right, I can travel and save myself. Some were subordinating it to other concerns. You know, as frankly, white women have long done. People have been telling them that the Republican Party was going to attack reproductive freedom and they still vote for it. You know, I said I didn't have the emotional energy or register for anger right now. I assume that's going to come back. It has to. But I do want to just pause over the people who said overruling Roe was some great political gift or would be a great political gift for the Democrats for eternity. That was not true at the time. And I feel like more than a few women were trying to say that. Or if it was true, right. Or if it ends up being true. Right. In some future election that like votes out Republican control and exit polls indicate it's on reproductive freedom, it is going to be on the backs of women who lost their lives and health. And I look back and I think back, I remember many of the people that said it and it upsets me. So what are we thinking about where to go from here? I don't know exactly what the next few years pretend. I don't think anyone does. I know they will be difficult, likely catastrophic in some ways. And for some people, I know that the thought of doing 2017-2021 all over again as far as organizing resistance and protest just seems exhaust. Also understand the impulse to turn in in part because of real questions about what a second Trump administration is going to do as far as weaponizing the federal government against critics and perceived political opponents, but am not willing to kind of give up and acquiesce and want to underscore that, like my pointing out that explanations are multifaceted for what happened in the election is not an excuse to excuse people of the choice they made or to buy into silly civility discourse tropes. But refusing to just go along with whatever happens doesn't mean, like, I'm not going to need and won't actually be taking breaks and seeking comfort in all of the aspects of our lives that give us the energy to proceed on. You know, I haven't been online much since the election. One of my favorite lines from Vice President Harris concession speech was, you know, we fight back by choosing to continue living our lives. And, and that small act of resistance is something so is being kind to others and caring about them. And more will be asked of us. And I hope we step up to help the disfavored individuals and groups who will be targeted or at least stand with them. Also having very little patience with the people whose immediate instinct after this is to throw subordinated groups, groups that will bear the consequences, many of the consequences of a second Trump administration under the bus. But I'm not gonna leave myself and the people I care about to the mercy of whatever the next four years is going to bring.

[Kate Shaw]

One other thing that I've been sort of thinking about in the last couple of days is I'm older than you, so I don't know how exactly what Your experience of 2004 was, but I was in law school, so I was alive then. I'm aware of that.

[Leah Litman]

Yes, I voted in the election.

[Kate Shaw]

But you were not a law student. I was. And so I was thinking a lot about like the day after that election, as I was with my students the day after this election 20 years ago. And I think that there has been like a real sanitization of the George W. Bush administration because he was such a more normal seeming in lots of respects, Republican, conservative, Republican president as compared to Donald Trump. But if you wind the clock back to 2004, it was a truly devastating defeat for many on the left. And I had been in Wisconsin just doing door knocking and stuff for Kerry with like law school classmates and friends, it was a similar kind of background in that it was, you know, George W. Bush had become the president after the Supreme Court decided Bush versus Gore and kind of handed the presidency to him. And then for many people it was a totally disastrous presidency. You know, Iraq war, totally unjustified, started under false pretenses. And it just seemed impossible that the American people would reward that conduct with a second term. And then they did. And so that was a kind of pretty devastating result that sank in over the course of the night and the next day. And it just felt like the Democratic Party is completely lost and it was hard to see how it ever would come back. And then four years later, Barack Obama was elected president. And I am not at all suggesting that, again, the second term of the Bush administration was comparable to what the second term of a Trump administration is going to be. And I also think that there have been real, significant and pretty devastating changes in things like the media landscape that I think do create a totally new set of obstacles to seeing a real transformation in four years time the way we did between 2004 and 2008. But I do think the point remains that mobilization can work. And if he governs as promised, many things will be wildly unpopular and wins can change relatively quickly in politics. And so I do think that for folks for whom this is like the first, first experience of this kind of political devastation, maybe that's a useful little bit of history from an elder.

[Leah Litman]

So we received some questions from listeners about legal issues that might arise in the second Trump administration, which we'll touch on briefly before moving on to the court and the election. So one question was how do state level protections for reproductive freedom relate to a possible federal abortion ban or revival of the Comstock Act? Just to reiterate, state law does not provide a defense to federal law. It cannot immunize people from violating federal law. So what does that mean if the federal government indicts you for violating federal law? It is not a defense to say my state adopted constitutional protections in the state constitution that allow me to do that.

[Kate Shaw]

Another question that we received is along the lines of, can women who are killed or injured be because of or by abortion bans? Sue either states for damages or the justices who overruled Roe and allowed abortion bans to go into effect. And also emphatic no states and justices are immune, cannot be sued for damages absent certain kinds of inapplicable exceptions here. And so no, the remedy, it may be legal long term, it may be political short term, but it is not in those kinds of lawsuits.

[Leah Litman]

And now onto the election in the court. Just warning, without Melissa here, our transitions are going to be orders of magnitude worse. This is what you get. So what does the election mean for the Supreme Court, as we've talked about before, still seems likely. There were probably going to be some retirements. In particular, Justices Thomas and Alito seem pretty likely to step down. I mean, recall that reporting about Justice Alito indicated that his wife had indicated he wanted to step down. So that in particular seems like it's gonna happen. Which, of course makes you wonder who are some possible replacements now that Donald Trump is president, and given the majority in the Senate or the apparent majority in the Senate, they don't need the votes of Lisa Murkowski or Susan Collins to confirm the replacements. So that's the landscape we're looking at.

[Kate Shaw]

Yeah. And can I say one thing about timing also, I would imagine, also, we're not just talking about in the first term, but in the first half of the first term, because midterm election, typically party in power loses seats. And there are some indications the Senate map actually, like, could be favorable in certain ways to Democrats. So I would imagine in the next six months kind of announcement, at least for Alito Thomas, who is older. He's 76. Alito is 74. But I do feel less sure about just because I think he so relishes this kind of like, elder statesman role.

[Leah Litman]

Trolling the libs as an elder statesman. Yeah.

[Kate Shaw]

Yeah. So who knows? But I think you're right that Alito is relatively soon. I mean, I can't believe we have to walk through this short list, but this is the world we're living in.

[Leah Litman]

Here we go. Obviously, gotta throw out Judge Jim Ho on the Fifth Circuit, the guy who called on the Supreme Court to overrule Roe in the Dobbs case. He wrote the opinion in the mifepristone case in the Fifth Circuit saying that the Comstock act prohibited the FDA's approval.

[Kate Shaw]

Of mifepristone and that OBGYN suffered aesthetic injury when they did not get to.

[Leah Litman]

Deliver babies, I. E. Right. States can commandeer women's uteri to spark joy. And again, just to underscore, even Sam Alito said the doctors in the mifepristone case didn't have standing. The potential replacements include guys who said they did. That's who we're looking at.

[Kate Shaw]

They did. Yeah. And it's not just 20 years younger, but actually like a shade scarier and. Yeah, 20 years younger. So. So Judge Ho is 51, I think. So he is on the older end, I think, of the kind of short list candidates. I mean, I presume they want real young. And so, I don't know. It's possible that he could be edged out by his 5th Circuit colleague Andy Oldham, who was also on the panel of judges that put restrictions on Mephristone, although I think he did not Write the sparks joy concurrence. So I suppose these are the small mercies we should note.

[Leah Litman]

Right. Like he said, they had standing.

[Kate Shaw]

And he's 45.

[Leah Litman]

Yeah. He's also the guy who wrote a separate opinion suggesting maybe the entire administrative state is unconstitutional because progressives, including Woodrow Wilson, were racist. Another name I wanted to throw out is Judge thapar on the 6th Circuit. So he was one of Donald Trump's first Court of Appeals nominees, reportedly close to Senator Mitch McConnell. I think now that McConnell isn't the majority leader, maybe he doesn't have as front standing, but I do think. Right. Like he has something going for them, you know, before the election he called on donors to like stop supporting law schools that weren't supporting or teaching originalism. So, you know, this idea of like threatening critics and whatnot, you know, is maybe potentially appealing. I do think he is running behind the other two on crazy. So he's gonna need to write some quickies that, I don't know, say your body, my choice or like something in there.

[Kate Shaw]

Well, in the same way that Kavanaugh raised his hand with Hargan Vers Garza undocumented pregnant teenager case after he was not on the first set of Trump lists, I do wonder if he will do lists again so people can, can audition to make their way onto them. You know, who is, I think, not going to have to audition to make their way onto lists? I. I don't know if these people would ultimately actually be seriously considered. But we have to mention Eileen Cannon and Matthew Karek.

[Leah Litman]

Oh, they're going to the Court of Appeals within the next two years.

[Kate Shaw]

Yeah, but do they have to go to the Court of Appeals? What if they go right to scotus?

[Leah Litman]

Yeah. Yes. That's also something to look forward to.

[Kate Shaw]

At least they'll be on panel. To be honest, if they're on the Court of Appeals. I think there's in some ways that's actually an advantage in that they're not these real lone ranger district court judges.

[Leah Litman]

Here's the thing, Kate. You are assuming the Court of Appeals as currently constituted. Imagine them on panels with additional second term Donald Trump Court of Appeals nominees. Right. Then you are going to have Court of Appeals precedent. That is a la Eileen Cannon Specials and Matthew Kacmierik, whatever he's doing.

[Kate Shaw]

Okay, fine. You're right. It's worse. Sorry.

[Leah Litman]

It's permanent.

[Kate Shaw]

Sorry. Okay.

[Leah Litman]

I have some concerns about what this is going to do to public debates about the Supreme Court and perceptions of the Supreme Court's role. How the court will be depicted, Will it be depicted as more moderate or an institutional check? If or when it occasionally stands up to Donald Trump, will that minimize the radicalism of all of the other things. Right. The court has done and will continue to do?

[Kate Shaw]

To be clear, I hope that the court does stand up to Trump if it has the possibility of lessening the suffering that some of his policies might create. But I completely share that concern. And I do think that part of the response to that is continually reminding people that this is the court that ignored Section 3 of the 14th Amendment and let Trump run for office again at all, that ensured that he would never face a federal trial that handed him these enormous new powers and insulation from accountability as he is walking back into office on a platform of avowed weaponization of government against critics. So any praise of any limiting decisions that this court issues, and again, I very much hope there will be some, has to be paired with those reminders. And also, just on kind of the lower court point, which you were just talking about, Leah, I did want to flag something important. So right now there are 27 judicial nominees pending in the Senate. Senate. 17 are on the Senate floor for Circuit 13 district, and then there are 10 more in committee who will be out of committee on the floor, I think, by Thanksgiving. And it is enormously important that a Senate confirm each and every one of these nominees and not hand over a single existing vacancy to Donald Trump. Right. The separate and apart from what the Supreme Court does or doesn't do to check Trump, the lower courts actually will be important testing grounds for some of these Trump administration initiatives. You know, as we saw in the first Trump administration, the travel ban was invalidated numerous times by lower courts before it was ultimately upheld in different form by the Supreme Court. That was critically important. So the lower courts will be enormous, and it would just be unimaginably disastrous for the Senate to hand any of these vacancies over to an incoming Trump administration. And in the Senate, there's all these questions about floor time. It takes time to confirm judges. Some of them are going to want to, like, get out of town. Like, they have to stay in town. They have to confirm all the judges, full stop.

[Leah Litman]

Yeah. I mean, you know who was confirmed in the lame duck session during the first Trump administration? Eileen Cannon.

[Kate Shaw]

Yep.

[Leah Litman]

Right. Like, just. Just do it, people.

[Kate Shaw]

Yeah. Gotta get it done.

[Leah Litman]

From a massive presidential election to yet another war in the Middle east and whatever drama is unfolding on TikTok, the world is a complicated place. Hi, I'm Jane Costen, former writer and podcaster for places like the New York Times, the Atlantic, and National Review. And now I'm here to hang out with you five days a week on what a Day. Crooked's daily news podcast. In just 20 minutes, you'll get the top news and stories that matter most to the way you live, work and play. You can listen to the show wherever you get your podcasts or search what A Day on your nearest YouTube search bar to watch the new video version. And watch while you're at it, consider subscribing to what a day's companion newsletter. Strict Scrutiny is brought to you by Stamps.com it's been a season and now it's more important than ever to hold friends and family close. With the holidays coming up, it's the perfect time to send a note reconnecting and reiterating our commitment to each other. And that means you're going to need some stamps. The holidays are hectic. If your business mails and ships items like marketing materials, forms, documents or products you need stamps.com you can print postage online so you can free up time to focus on getting your business through this busy season. Stamps.com is a holiday hero. From small businesses to multi location organizations, they handle all your mailing and shipping needs. Wherever, whenever. Take care of mailing and shipping wherever you are, even on the go with a stamps.com mobile app. They're a 247 post office that helps you avoid holiday traffic jams. All you need is a computer and printer. They even send you a free scale. Holiday expenses add up fast, but stamps.com offers crazy discounts. Get rates you can't find anywhere else, like up to 89% off USPS and UPS. I've ordered from stamps.com in preparation for holidays and all kinds of events and I love being able to select theme stamps when I do. So we also have family abroad and stamps.com makes it super easy for us to make sure our packages and notes get to them on time. More holiday, less hustle. Free up more time with stamps.com sign [e-mail] and enter code strict for a special offer that includes a four week trial plus free postage and a free digital scale. No long term commitment or contracts. That's stamps.com code strict. Okay, now onto what the court has been up to. While everything else has been happening. We're going to start with the case the court added to its docket before we recap the arguments that the court heard.

[Kate Shaw]

And it's a big one. So the court agreed to hear yet another case about the future of the Voting Rights act, which is obviously always an ominous note on which to begin any discussion. But here are the details. The procedural history is pretty complicated, but it actually is necessary, I think, to understand what's going on in the case. So in brief, the court is going to be deciding a pair of cases about whether or when it is unconstitutional for a state legislature to try to remedy a Voting Rights act file violation. That is in this case, after a court had concluded that a state violated the Voting Rights act, the vra, by diluting the voting power of racial minorities, is it then unconstitutional for a state legislature to try to fix that violation by drawing additional opportunity districts for minority voters? And if you were thinking, wait, I thought the Supreme Court did like actually this one okay thing, which is uphold the VRA as a race conscious law, said that the law did prevent states from depressing minorities voting power, you would be right. So that was the 2023 decision in Allen Ver Milligan where the court agreed that Alabama had violated the VRA by refusing to draw a second district where minority voters had the opportunity to elect candidates of their choice.

[Leah Litman]

And you may also remember that at the time we said do not think this fight is over or Allen has definitively resolved, right. The future of the Voting Rights act before this court. Because the justices upheld the VRA's ability to protect racial minorities voting power the year after they had overruled Roe and their public approval plummeted and they were at the time time unsure about whether there was going to be sufficient political reaction that would result in actual constraints on their power and actual pushback. And recall that Brett Kavanaugh provided the fifth vote for that result, but didn't join all parts of the Chief Justice's opinion, specifically the parts that had explained some of why the Voting Rights act was constitutional and it was okay to take race into account when considering whether states had diluted racial minorities voting power. And he wrote separately to say there were some constitutional challenges that Alabama hadn't raised, but that might still be successful. And you know what chickens, they came home to roost, right? Because now that the court looks at what has happened and says, well, we got away with Dobbs, right? Like we get away with everything. Why not now? And so the newest Voting Rights act case arises out of Louisiana, which like Alabama, was found to have violated the Voting Rights act when Louisiana refused to draw a second minority opportunity district. That case was like the lower court opinion in Allen v. Milligan stayed during the 2022 midterms, such that Louisiana was allowed to use its unlawful map. But after the Supreme Court reaffirmed that the Voting Rights act is indeed a thing, at least for now, in Allen vs. Milligan, the lower court, which had found Louisiana had violated the Voting Rights act, proceeded to the question of remedy. That is, once there is a Voting Rights act violation, what is the solution like? What is to be done about it?

[Kate Shaw]

So in terms of what does get done? Sometimes courts draw the new maps. But here, the Louisiana legislature asked the court to give it the opportunity to draw a map that would remedy the VRA violation. So the legislature considered a bunch of different redistricting maps and ultimately selected one that balanced a variety of different considerations, including protecting incumbents and also complying with the Voting Rights Act. So they selected a map that protected the speaker of the House, Mike Johnson, and stuck it to a more moderate member of the Republican caucus. And the map, in addition to doing those political things, also created a second minority opportunity district.

[Leah Litman]

At that point, some white voters challenged the map on the ground that it was unconstitutional racial gerrymander. Because they maintained by attempting to remedy the Voting Rights act violation and ensure that black voters had political operations opportunities, the map unconstitutionally discriminated on the basis of race. Again, to be clear here, the argument is compliance with the race conscious Voting Rights act, which prohibits diluting the voting power of racial minorities. That is the real race discrimination.

[Kate Shaw]

So a lower court agreed with that claim, invalidating the map. Now, the Supreme Court paused that ruling, invoking the Purcell principle because it was too close to the election. And now the court is taking up on the merits the question of whether and when compliance with the VRA is unconstitutional.

[Leah Litman]

Fellas, is the rest of the Voting Rights act unconstitutional? Oh, gosh. This case has makings of some real asymmetry with the Court's earlier decision in the South Carolina case Alexander, where the court, per Justice Alito, said Republicans were so entitled to engage in partisan gerrymandering, courts should look askance at racial gerrymandering claims brought by black voters when there is racial polarization in voting. Here, by contrast, the court might say, even where Republicans are working out partizan infighting, punishing Republicans who are insufficiently supportive of the party's direction, that that doesn't allow Republicans to try and remedy racial discrimination. Right. You only get to consider partisan reasons when you are engaging in racial discrimination. Right. Logic. Boom. Lawyered the law. What do you call it?

[Kate Shaw]

What do you. What do you often say, Leah? The majesty of the law.

[Leah Litman]

Yes, majesty of the law. There it is. Majestic neutrality of the rule of law. Right.

[Kate Shaw]

Right there. So that's this case. The court will now hear one thing. I actually just wanted to ask if Trump won the election, that was likely to result in change positions in some cases. Sc the Tennessee case about the state law that prohibits gender affirming care for kids. And it's being argued in December. Right. So it shouldn't. That argument should go forward. There shouldn't be any change in the immediate the Trump campaign slash transition doesn't have standing to ask the court to do anything. But like could Tennessee ask the court to sort of put it off until later? This is an ominous ide to even put out into the universe.

[Leah Litman]

I mean it's possible you will get a request to delay the case. I don't know that that will actually happen since it's going to be argued before a change in administration. So I don't know if they would want to do re argument or schedule an additional round of briefing. I mean recall in Brnovich vs DNC, that case was argued basically immediately after the Biden administration took office and they indicated basically just in a short note without fully explaining their position, that they didn't agree with the position of the Trump administration as far as the legal theory, although maybe did with respect to the outcome. And still the court proceeded to decide the case.

[Kate Shaw]

Decide the case. Yeah. So they can file something in January if they want to. Yeah. So onto the argument recaps. It's just kind of wild that so much business as usual just marches on while all of this is happening. But it did. The court heard oral arguments in some cases last week. We will just relatively briefly walk through for you. First of them, Wisconsin Bell versus United States ex rel. Todd. He was a case that we briefly flagged last week. This is about whether the False Claims act applies to the Federal Communications Commission's E Rate program. This program is currently subject actually to a different non delegation doctrine challenge. The Fifth Circuit actually invalidated it on the basis of the non delegation doctrine and the SG has asked the court to review that case. But this case is about whether the program is amenable to suits under the False Claims act, which is a statute which allows private parties to sue and to get potentially really large amounts of money. Entities that defraud the federal government of money.

[Leah Litman]

Yes. And so the challengers say that the FCC's E Rate program works differently than most government programs because here the government is ordering private companies, private parties to pay into a fund that's also managed and distributed to other private companies, albeit subject to federal review. You know, telecom providers pay into a fund, rates that are initially set by a group of private entities and then distributed to support access to broadband. And the issue comes down to what the word provides means in the False Claims Act. You know, that law allows parties to sue over programs where the government provides the money. And that program has been allegedly defrauded. And the challengers say the government didn't provide the money because it comes in from private parties and then it's distributed by a non governmental entity.

[Kate Shaw]

So during the argument, some justices, and in particular Justice Kagan and Justice Barrett, intimated that it's wrong to think that only one entity provides the money. And they gave a bunch of examples of that. They were just like, there might be multiple providers and they suggested that the provider might be the principal that tells an agent to collect money and distribute it. This is a theory that got some pushback from some Republican justices who might have been thinking about the non delegation challenge to the program. Right. That is ongoing in a separate case, since they might not want to say the telecom providers and private entity are agents of the government subject to meaningful oversight.

[Leah Litman]

Yeah, it was interesting. There were a few allusions to that non delegation challenge in this case, even though it's obviously not formally presented. But it turns out one wrinkle in the case is that setting aside the issue of web, whether the government provides money, where it directs private organizations to provide money, it seems that the government itself has given money into the Universal Service Fund, something that the parties and the justices say the court below might not have known about. But the government's brief noted that during the years relevant to the case, the US treasury deposited more than $100 million into the Universal Service Fund. Oops, Whoopsie. My bad.

[Kate Shaw]

Yeah, so yes, maybe they overlooked this, I'm not sure. It's not like they're so busy with all the other cases they have going on that they didn't really have to focus on whether the case actually presented the question that they wanted to answer. I don't really know what the explanation is, but some of them just may be too busy with their extracurriculars. But in any event, so there were lots of questions to the challengers along the lines of, okay, so assume you lose on the $100 million question. And I think that suggests that at a minimum, the court might send the case back down on a theory that at least those hundred million can anchor an FCA claim and maybe claims about just the money in that fund or claims that are somehow capped at the 100 million that the government provided. But in any event, that would essentially be an. In this case.

[Leah Litman]

Yeah. There was one moment we wanted to highlight from the argument in an exchange between the Chief justice and the lawyer for the federal government, arguing in the case in which the lawyer for the federal government pledged, or at least cosplayed, pledging fealty to the Supreme Court as the highest and best source of legal authority. So we'll play that clip here. Here we have a statute that in 2008 appropriated money out of the Universal Service Fund that I think proves just positively that Congress regards this as the government's money. But even if you think that what Congress has said isn't good enough, I'll turn to an even higher authority. This court's precedents. This Court.

[Kate Shaw]

This court.

[Leah Litman]

Now, I understand what you're saying.

[Kate Shaw]

Hearty har har. Just love it.

[Leah Litman]

Hearty har har har. Right. Love the idea. Right. That the price of an argument is to bend the knee to the Supreme Court. The judicial kings and queens need to have their authority recognized.

[Kate Shaw]

And they just love it.

[Leah Litman]

People will do it.

[Kate Shaw]

All right. Onward. The Court also heard oral argument in Advocate Christ Medical versus Becerra. This is the case about compensation for hospitals that treat low income individuals and specifically individuals who are part of the Social Security program.

[Leah Litman]

The case is a follow on to the Supreme Court's prior decision in Empire Health vs. Becerra. And the gist of the cases is this. So federal law authorizes reimbursements for hospitals, and the amount of those reimbursements depends on whether the hospital provides services to people who are entitled to benefits under the Medicare program and the Social Security program. In Empire Health, the Court said that the formula authorizes reimbursements based on whether the hospital treats individuals who are eligible for Medicare benefits even though they might not be receiving Medicare benefits at the time of their hospitalization. And the question in this case is whether the same rule applies for reimbursement rates that turn on whether the hospital provides services to people who are entitled to benefits under the Social Security program, that is, whether that's tied to people who are eligible for SSI benefits or are receiving SSI benefits at the time of their hospitalization.

[Kate Shaw]

On the one hand, you might say, or think, well, the textualist would say entitled to benefits means the same thing for SSI as it does to Medicare. But that argument seemed to bump up against resistance from some of the more textualist Justices, including Justice Kagan. So she and other Justice Justices reframe the question or Issue in the case as what does quote, the entitlement mean? That is, what does the program entitle you to? Is the entitlement the receipt of benefits, whether that's cash or health insurance, or is the entitlement the eligibility to receive those benefits over a period without having to reapply for them?

[Leah Litman]

Yeah. So, you know, during the argument, they were noting that in the context of Social Security, if there are some months where an individual's income exceeds eligibility for Social Security, they aren't to receive payments, but they might receive payments the following month without reapplying in a more fulsome sense. Similarly, in Medicare, you're still in the Medicare program, even though you might also have private insurance that's paying for that particular hospitalization or particular aspects of the treatment. So it was a bit hard to read where the Justices were on this case, at least to me.

[Kate Shaw]

There was also the argument in EMD Sales v. Carrera. This is the case about how courts determine whether an employer is subject to some of the requirements of the Fair Labor Standards act, which impose, imposes, you know, maximum hour minimum wage, overtime and other requirements on employers. And the FLSA has certain exceptions, doesn't apply to all employers or all employees. If one of those exceptions applies, employers are not subject to these guarantees. And the question here is what is the burden of proof to establish an exception to the flsa, that is, to establish that employer isn't bound by or, you know, required to comply with the requirements of the flsa.

[Leah Litman]

And it seems that the employer, which is supported by the federal government, is going to prevail on their argument that the burden of proof, proof is preponderance of evidence rather than clear and convincing evidence, as the employees argue. The court seemed to be really focused on the appropriate remedy, that is, if they say, or really when they say the burden of proof is preponderance, whether there should be a reversal or vacatur. The United States has suggested reversal. Employer vacateur. One thing that was interesting to me is that part of the disagreement between the parties seemed to turn on how they thought or who they thought should determine the burden of proof. So the employers and the United United States said the task here is just statutory interpretation in the sense of discerning what Congress said, even though it didn't say anything explicitly about the burden of proof, whereas the employees read the Court's previous cases to say that's actually something for courts to decide based on, like a judicial assessment of the importance of the underlying right. The Justices seem pretty skeptical or Hostile to that prospect. Some additional evidence that the case is going the way of the employer, United States was that the justices didn't have any follow up questions during the possible seriatim period for the employer, which you can hear here. And I'm, I don't. I'll go to. Thank you, counsel. Nobody.

[Kate Shaw]

I don't think so. Okay, sorry.

[Leah Litman]

Finally wanted to play this clip which reflects a different understanding of the Clean Water act than we heard articulated in October. So just play that here. Well, but I mean, I think it's.

[Kate Shaw]

The same point Justice Alito was making. But the Clean Water Act, Right. There's a big statement of purposes there.

[Leah Litman]

It's necessary to preserve life and everything else.

[Kate Shaw]

And so if you want, if you're.

[Leah Litman]

Suing somebody under that, why aren't they.

[Kate Shaw]

Put to they, the polluter, a higher standard of proof to prove that they're not doing. They're not polluting the environment, they're not endangering people's lives and through the, through their emissions.

[Leah Litman]

Literally stairs in city and county of San Francisco where it seemed like some of the chief's Republican colleagues thought the true purpose of the Clean Water act was to protect polluters.

[Kate Shaw]

No, it was a different. It was a. That was a different Clean Water act though, right? Exactly.

[Leah Litman]

Yeah. No, they're gonna work it out on the remix. But what is going on here?

[Kate Shaw]

This great face.

[Leah Litman]

I know, I know.

[Kate Shaw]

All right. Finally, they heard arguments in Facebook versus Amalgamated Bank, a case about the required pleadings in securities law cases. That is what plaintiffs have to say in their complaint to make out a violation of federal securities laws. The formal question presented in the case is about whether the failure to disclose a past event gives rise to liab in a statement about the risk of future events. But it became clear the justices were uncertain about how the question in the case had been framed. And maybe they were unsatisfied with it because the respondent slash plaintiff's lawyer and the federal government who was supporting the plaintiff conceded that they aren't arguing. And the court below hadn't held that the failure to disclose a past event that materialized necessarily gave rise to liability. Instead, they contended it depended on the extent to which a statement about future risk implied that a past event hadn't taken taken place, the extent to which that past event might be material either to thinking about the future risk or material in its own right. So it's just not that clear how the court is going to respond to that. That is that the question presented might not completely capture the disagreement between the parties and the precise legal issue in the case. I just get it together. When you're taking cases and framing questions like, just don't take the cases.

[Leah Litman]

I mean, you're not taking that many of them.

[Kate Shaw]

No.

[Leah Litman]

Can't you review them?

[Kate Shaw]

Lock in. As my 12 year old says all.

[Leah Litman]

The time, lock, lock in, lock in. Okay, great.

[Kate Shaw]

I think that's actually probably a good going forward mantra for all of us.

[Leah Litman]

Yes, for sure.

[Kate Shaw]

Lock the F in. All right, friends. I wish Melissa was here. I mean, not that I'm unhappy to be doing this with you, Leah. I'm obviously happy to be doing it, But I do miss her presence and I do feel fortunate to get to process this, at least with you and with her when she comes back. I do think you kind of referenced the tendency to want to withdraw. And I have to say that the moments and the spaces I have felt the best since early Wednesday have been with people, with my people, like with my students on Wednesday, with you, with friends I've been on the phone with. And I'm going to see my family in Chicago for my niece's bat mitzvah tomorrow. I'm actually really, really excited to get to, like, hug my sisters and my parents and my nieces and nephews. And anyway, I think that's a lesson that is broadly true. And so we are going to keep.

[Leah Litman]

Doing that and to be here, like, for one another. Like, we are going to stay here with each other and with you for as long as that remains possible, slash legal. But.

[Kate Shaw]

And when we're ready, I do, to quote my daughter Ryan, again, we will figure out exactly how to direct our energies and we will lock in.

[Leah Litman]

The anger will come back. Right. It's boiling inside of me. Part of the Throne of Glass is like, if you don't use your magic, it comes back really big. So you're like burrowing into your power and then you can, like, let unleash the hugest of flames. Okay, so that might be on the horizon. I am an introvert and I did feel good cuddling my dog, watching the sunrise. Like that helped. But as I mentioned, like, my partner was out of town. And so that night, our favorite local restaurant did a pop up Mac and cheese and wine thing. And so I went with some friends and just hugged and ate Mac and cheese, drank wine and then ate ice cream. And yeah, being with people hugging, reiterating that we all care about each other is important and helps.

[Kate Shaw]

It really is. All right, on that note, we will see you all next week.

[Leah Litman]

Strict scrutiny is a Crooked Media production Hosted and executive produced by me, Leah Littman, 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 Harringer and ari Schwartz. Matt DeGroat is our head of production and thanks to our digital team, Phoebe Bradford and Joe motoski. Subscribe to Strixkrum on YouTube. To catch full episodes, 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 if you nerd out about all things science. I'm excited to tell you about Radiolab, a podcast from WNY hosted by Lulu Miller and Lateef Nasser. Radiolab's goal with each episode is to make you think, how did I live this long and not know that? Whether it's chemistry, laws, new technologies, ancient beliefs, even sex of bugs, Radiolab's rigorous curiosity gets you the answers so you can see the world anew. Radiolab adventures on the edge of what you think you know Listen wherever you get your podcasts.