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]

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.

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."

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.