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Strict Scrutiny
SCOTUS’s Endless Beef with the EPA
01:04:14
Melissa, Kate, and Leah recap October at the Supreme Court, diving into the sewage-infested waters of City and County of San Francisco v. Environmental Protection Agency. What did clean water ever do to Brett Kavanaugh? Also recapped: cases about the judicial review of immigration visas and veterans benefits. Finally, the hosts finish off with a peek at what’s going on in state courts around the country.
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- [00:00]
Melissa Murray
This lasagna was so cheesy, my plate was filled with saucy slices.
- [00:05]
Kate Shaw
Then a flimsy store brand plate.
- [00:08]
Melissa Murray
No, no, no, no.
- [00:09]
Kate Shaw
Ruined it. Next time get Dixie Ultra plates three.
- [00:11]
Melissa Murray
Times stronger than the leading store brand.
- [00:13]
Kate Shaw
10 inch paper plate. Dixie, make it right. Mr. Chief justice, if please report.
- [00:21]
Leah Lippman
It's an old joke, but when I argue men argues against two beautiful ladies.
- [00:26]
Kate Shaw
Like this, they're going to have the last word. She spoke not ele, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
- [01:00]
Melissa Murray
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 Melissa Murray.
- [01:08]
Kate Shaw
I'm Kate Shaw.
- [01:09]
Leah Lippman
And I'm Leah Lippman. And last week, the Supreme Court wrapped up its October session, the first session of the new term. And Mother Earth, you're already in danger, girl. So to explain how we're going to spend a good portion of this episode breaking down the big environmental case the court heard last week before briefly touching on the other cases that were also argued.
- [01:29]
Kate Shaw
Then for our Court Culture segment, we'll discuss some cases in other courts, one appellate case decided by the 6th Circuit, a district court decision on political speech out of Florida, and then also some state court developments, one on voting rights from Nebraska, another on reproductive justice out of Tennessee, and some recent voting developments out of Georgia. And we will finish up by discussing the passing of a major figure at scotus. So for listeners who are following this issue, we do know that the Fifth Circuit heard oral arguments in a challenge to the DACA that's Deferred Action for Childhood Arrivals program about a week and a half ago. We do plan to cover that argument in our November preview. So two episodes from now when we talk about pending cases that could be affected by the election. So stay tuned for that conversation.
- [02:08]
Melissa Murray
But on this episode, first, some breaking news. The first thing we want to highlight is an order from Judge Tanya Chutkan, who's Of course the D.C. district Court Judge who is presiding over the federal election interference case against the former guy, Donald Trump. In that order, Judge Chutkan rejected Trump's efforts to block public disclosure of the appendix to Jack Smith's bombshell 165 page immunity brief, which we discussed two weeks ago. The brief is already public and as we've said, it's quite a read and read in the drag queen sense. Like the library is open and Donald Trump kind of got red But Trump's team, not surprisingly, argued that because of the upcoming election, Judge Chutkan should deviate from the ordinary presumption of public access to information in criminal proceedings and keep the entire appendix sealed until November 14th. Trump's team argued that the unsealing of the appendix would poison the jury pool and that it wasn't fair for the public to see Smith's evidence but not Trump's, and that this, quote, unquote, asymmetric release of charged allegations and related documents during early voting creates a concerning appearance of election interference, end quote. The irony.
- [03:23]
Leah Lippman
Well, Judge Chuckin seem to appreciate that irony because she was, to put it mildly, not impressed by these arguments. She wrote that, quote, there is undoubtedly a public interest in courts not inserting themselves into elections or appearing to do so. But litigation's incidental effects on politics are not the same as the court's intentional interference with them. It is, in fact, defendants requested relief that risks undermining that public interest. If the court withheld information that the public otherwise had a right to access solely because of the potential political consequences of releasing it, that withholding could itself constitute or appear to be election interference, end quote.
- [04:03]
Kate Shaw
I love how she's, like, so close, but exactly 180 degrees wrong are your arguments. And so, no. So Trump's request gets denied. The appendices were unsealed on Friday, and to the kind of asymmetry point that Trump's lawyers were making. Chuck had made clear that he could accelerate his own timetable. Right. His next round of briefs are due on November 7th. But if he's concerned about asymmetric information being on public display, he can file his arguments and present his facts earlier than that if he wants the public to see them.
- [04:31]
Leah Lippman
Like, let's see that great evidence, Donald. Let's see it.
- [04:35]
Kate Shaw
Totally. And I have a hunch we're not going to. So, at the time of our recording, only one of the appendices was actually accessible and it was heavily redacted. So we actually don't really know any more than we knew from the brief itself. But we will update you if and when we learn more about the contents of these appendices.
- [04:52]
Melissa Murray
Most of the pages just say sealed, and the ones that were not sealed were primarily public information that was already available, such as speeches and press releases. There are a few different versions of a memo that had described the Electoral Count act as, quote, unquote, likely unconstitutional, end quote. Not a lot of theory behind that, not a lot of evidence, but, you know, a lot of vibes. So I guess that's fine. There was also some memos that mocked how there could be quote howls, of course, from the Democrats, end quote. In the event that Mike Pence refused to certify the votes, it also proposed having someone, including perhaps our favorite the gentleman from Cancun, Ted Cruz, play a role in stymying the efforts to certify the votes. Which is actually really interesting because Colin Allred at a recent debate with the gentleman from Cancun mentioned that the gentleman seemed to be really interested in stymieing the counting of the votes and also hiding in supply closets.
- [05:50]
Leah Lippman
Exactly.
- [05:51]
Kate Shaw
But can we just pause and say he was Allred was so good in that debate.
- [05:54]
Leah Lippman
Oh my gosh, she really crushed it.
- [05:57]
Melissa Murray
It's my student Colin Allred, Berkeley law grad.
- [06:03]
Leah Lippman
So good he was prepped and ready and the moments on election interference, abortion. He was ready and could communicate to the message and loved to see Cruz.
- [06:16]
Kate Shaw
Slightly less so on all of those scores.
- [06:19]
Melissa Murray
Again, I'm just like if you're listening Allred team, you are missing an opportun by not referring to Ted Cruz as the gentleman from Cancun and also invoking justice for Snowflake.
- [06:30]
Kate Shaw
Yes, that's true. That's, that's one critique there was. There's, I don't think any indications of 9 out of 10 missed opportunity.
- [06:35]
Melissa Murray
No real notes. Yes, but, but back to the brief. Sorry, that was a Colin Allred appreciation interlude. Sorry. Back to the redacted appendices. In one rare moment of self awareness, there is a writing that is disclosed that described the plan to interfere with the counting of the votes as admitted, quote unquote, bold in all caps. Yes fellas, that's, that's what we call a coup. Bold is like when you're, when you're cooing. It's definitely bold. There was also a redacted text exchange about getting documents on the congressional floor and I don't know, I'm a little curious to see more in that vein going forward. So unseal everything personally.
- [07:20]
Leah Lippman
Indeed. So we also wanted to talk through some developments out of Texas. A Supreme Court issued a stay of execut. But no, it wasn't the United States Supreme Court. So late Thursday night the Texas Supreme Court issued a stay in the case of Robert Roberson who was convicted and sentenced to death for the killing of his two year old daughter on the basis of since discredited shaken baby syndrome evidence and theories. The lead detective on Roberson's case now says Roberson is innocent and a bipartisan group of Texas legislators had looked into the case and expressed doubt about the conviction and sentence.
- [07:56]
Melissa Murray
Yet despite those important developments, SCOTUS refused to issue a stay of execution on Thursday, and Justice Sotomayor wrote separately to urge the Texas government to grant a reprieve, saying Roberson didn't have a federal claim but that Texas itself could stop the execution.
- [08:14]
Kate Shaw
And a bipartisan group of Texas legislators, this is a very unusual move, took this unprecedented step of issuing a subpoena or maybe a summons for Roberson's testimony. And after the Texas Court of Criminal Appeals initially declined to intervene late on Thursday, the Texas Supreme Court issued an order preventing Texas officials from preventing Roberson from complying with the subpoena, presumably including by going forward with this execution date. So this means in the short term that the case goes back to the lower court for consideration of the legislative subpoena. The execution, of course, does not go forward in the immediate all of this implicates questions of state separation of powers.
- [08:50]
Melissa Murray
Which means that now the United States Supreme Court is actually to the right, and maybe decidedly so to the right of the all Republican Texas, the Supreme Court on this question of the death penalty. So wow, that that is something. Chris Geidner's Law Dork newsletter did some great reporting on this case. So if you want to learn more about Robert Ruberson in this case, be sure to check out Chris's substack.
- [09:19]
Leah Lippman
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- [10:22]
Melissa Murray
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- [12:38]
Leah Lippman
And now onto the recaps. First up, the Supreme Court's conservative supermajority tries to figure out which it hates more, the EPA or liberal bastion San Francisco. The Supreme Court. It's a toss up, right? It. Well, it's not so clear it's going to be a toss up, unfortunately. So the Supreme Court heard the big Clean Water act case City and county of San Francisco vs EPA. The question in the case, as we said in our last episode, is how exactly did the EPA violate the law this time? The relevant statute is the Clean Water act, which requires entities that discharge pollutants into United States waters to obtain permits. And the law authorizes the EPA to impose conditions on those permits that include Quote, effluent limitations for point sources, end quote. But also, and this will be important, quote, any more stringent limitation, including those necessary to meet water quality standards, end quote.
- [13:31]
Kate Shaw
So the city of San Francisco operates a combined overflow system that emits pollutants into the Pacific Ocean, which is among the navigable waters of the United States, for purposes of the Clean Water Act. At least until someone finds a theory that excludes the, you know, shoreline of.
- [13:45]
Melissa Murray
The Pacific Ocean is unconstitutional.
- [13:47]
Kate Shaw
Exactly. Or at least. At least not subject to the protections of the Clean Water Act. But. So the EPA issued a permit to San Francisco for their discharge. And the permit conditions prohibited discharges that, quote, cause or contribute to a violation of any applicable water quality standard. And the permit also barred the creation of, quote, pollution, contamination or nuisance as defined by a provision of California state law. As the lawyer representing the EPA noted at the argument, the permit conditions were imposed because San Francisco system, quote, is resulting in gallons of sewage being poured into San Francisco's beaches, resulting in sewer backup in homes and businesses.
- [14:22]
Melissa Murray
But honestly, what's a little raw sewage between friends?
- [14:27]
Leah Lippman
When we say the Supreme Court has gone to shit, we're referring to this case.
- [14:31]
Melissa Murray
Anyway. San Francisco argues that these permit conditions violate the Clean Water act because they impose narrative limitations that are too vague and don't impose specific limits on pollutants or provide for specific procedures for improvements as the law, they say requires. The issue here is how specific does the EPA have to be when it is issuing permit conditions under the Clean Water Act? Can it impose prohibitions that make permit holders liable when they cause water quality standards to go below a certain level? Or does it have to identify the specific amounts of permissible or impermissible discharges? To put it in plain language, in imposing the permit conditions, is it okay for the EPA just to say, hey, don't kill the species of fish with your discharges, or, hey, don't allow the water quality levels to dip below X amount? Or does the EPA have to be more specific than that and tell the polluter, hey, it's okay to discharge one gallon of poop, but no more than that. One gallon of poop. Do you hear me?
- [15:32]
Leah Lippman
Before we discuss the tenor of the oral argument, we should elaborate a little on the city's legal argument because the oral argument was a few fries short of an extra value meal. It is difficult to overstate the extent to which the Republican justices truly think that Congress passed the Clean Water act to protect polluters. Also difficult to overstate the extent to which the Republican justices think the real victim in the current situation that involves gallons of raw sewage being dumped into the ocean is that the people dumping said gallons of raw sewage into the ocean are the victims, or at least the people that could prevent said dumping. They are the victims, not Planet Earth, not the people who have to live with said sewage, but the entities allowing the sewage dumping. And the Republican appointees hate the EPA so much, they're convinced the real victim here is San Francisco, which is dumping.
- [16:22]
Melissa Murray
Sewage into the Pacific Ocean. San Francisco's argument is basically that Congress created and amended the Clean Water act in part because in a world without specific regulations, it's really difficult to impose liability on polluters, which is to say that Congress, when it enacted the Clean Water act, was responding to concerns about a regime where there weren't precise and specific rules about exactly how much and what kind of pollution could give rise to liability under the act. And the city argues that Congress created the permit system that instructs the EPA to tell polluters exactly what they have to do to avoid liability under the act to respond to those concerns. And according to the city, when the Clean Water act mentions effluent limitations, that's Congress directing the EPA to tell polluters exactly what they can discharge or exactly how they have to structure their discharge systems.
- [17:14]
Kate Shaw
But the problem with the city's argument, as Justice Kagan tried repeatedly to explain to her junior varsity colleagues, her head was literally exploding. I think we said last week or the week before that we were worried. She seemed a little deflated or tired. I didn't get that at all in this argument. Like, she had real, she's back, Mother of Dragons. Energy throughout. But anyway, her point is that you cannot read the legislative history of a statute that broadly to say the Clean Water Act's purpose was to impose more specificity and then infer that the agency is prohibited from promulgating general standards for water quality. That's just not how this thing called textualism is supposed to work. So whatever is in the legislative history, or whatever is in John Roberts idiosyncratic notion of the battle days to which he referred repeatedly, that, you know, in his view, the statute was supposed to respond to that. This statute explicitly authorizes the EPA to impose, quote, other limitations, not just affluent limitations, which would seem pretty clearly to encompass the kinds of broader prohibitions to which the city is subject. It also seems relevant that Congress amended the Clean Water act to require compliance with a specific program that contained general prohibitions rather than specific effluent limitations, which is a point that Justice Jackson underscored.
- [18:22]
Melissa Murray
And if, as it seems likely, the Republican appointees are just simply going to declare in very broad strokes that these water quality standards aren't the kinds of limitations that Congress intended for the EPA to promulgate, notwithstanding the provisions of the statute that we just mentioned, Justice Kagan made clear that this was going to happen over her dead body. She was not going to go quietly into the polluted, sewage infested waters of the San Francisco Bay at night, as you can hear in this montage of clips. So let's roll them, Ms. Seely.
- [18:55]
D
I mean, there are lots of different kinds of regulations in the world. Some people like some kinds, some people like other kinds. Some regulations are really prescriptive, do this, this, this, and this. And then, you know, some people hate those kinds of regulations. They'd rather have regulations that are less prescriptive that say, here's the goal, you decide how to meet it. That gives a party more flexibility and so forth. So, you know, some people, you know, it's, there's got to be something in this statute that tells you that the agency can't decide to go. The less prescriptive, more flexible, you decide how to meet it. This is the goal route. And I don't see anything in this statute that does that.
- [19:38]
Melissa Murray
So I disagree, your honor, that this provides a flexible standard.
- [19:41]
D
Let's talk about the statute. But what I don't hear you telling me is like, what in the statute prevents the EPA from doing this? But of course, 1c does not talk about affluent limitations. 1c just talks about limitations. 1a talks about affluent limitations. 1b talks about effluent limitations. You were adding a word to 1c to get effluent limitations there, weren't you?
- [20:06]
Melissa Murray
No, I disagree that we're adding a word. So section.
- [20:09]
D
Well, you're definitely adding a word because there's only limitation there.
- [20:13]
Melissa Murray
Basically, fuck whatever the statute says. The Republican justices are just saying, watch us do some magic textualism. And Justice Kagan is like, I got a different rabbit that I'm going to pull out of my hat.
- [20:23]
Leah Lippman
How about that? We will get to the magic part in a bit, but we should note that when the lawyer representing the city of San Francisco took the podium, some of the Republican justices seemed a little confused about which side they should hate, the EPA or San Francisco. San Francisco received some skeptical questions from both Justices Thomas and Alito.
- [20:42]
Melissa Murray
But then they remembered, oh, yes, that's where the Bohemian Grove meets. I like that place. I like that place. Place.
- [20:49]
Kate Shaw
It's not in San Francisco, right?
- [20:50]
Melissa Murray
No, you got to fly into San Francisco, though. You have to traverse San Francisco to get to the Bohemian.
- [20:56]
Kate Shaw
You might need to drink some water while stopping en route to the Bohemian Grove. And. Yeah, so. So. But I guess that's not enough to make them worry.
- [21:03]
Melissa Murray
Nobody wants GI distress at the Grove. Nobody wants that at the Grove, but.
- [21:07]
Kate Shaw
Evidently they're fine with it. Or maybe they just bring their own bottled water in, in any event. Yeah. So there was this discomfort among some of the Republican justices about the possibility of ruling for San Francisco, even if that did mean sticking it to the EPA again and some more. And at one point, the EPA's lawyer seemed to feel this energy and to lean into it, basically like, you're right, fellows, this is all San Francisco's fault. So let's play that clip here.
- [21:29]
Melissa Murray
Mr. Liu, you said at one point that you lacked the information necessary to provide a more specific provision than the provisions that are in question here. But is there anything that prevented you from obtaining whatever information you thought you needed?
- [21:46]
Kate Shaw
Yes.
- [21:47]
D
San Francisco, under the statute, you have no.
- [21:51]
Melissa Murray
You have no ability and the state has no ability to require them to produce any information.
- [21:55]
D
We did require them. We issued information requests under 33 USC 1318 A.
- [22:02]
Leah Lippman
But the Republicans got over their discomfort with ruling for liberal loving San Francisco once the EPA stood up and they remembered, yes, this is who we really hate. You know, ladies, forget Donald Trump as your protector, keeping you safe from quality health care that might be necessary to save your life, your health or your fertility. Get you someone who will defend you and stand up for you the way that Brett Kavanaugh will stand up for shit dumping polluters. Because really, you know, I don't think Brett Kavanaugh has been this mad since he was scream asking Senator Klobuchar if she had a drinking problem during his confirmation hearings. He was absolutely incensed about the supposed unfairness to polluters when the EPA doesn't tell them exactly how much they can poll. So roll that tape here, Wyatt. You know, some of these standards are not as specific. Marine communities shall not be degraded. The odor of fish shall not be altered.
- [23:05]
Melissa Murray
It's hard to.
- [23:05]
D
I mean, to take the first example, Justice Kavanaugh, it's just hard.
- [23:08]
Leah Lippman
I'm not looking for comment on the specific example. It's just hard. This clip was just incredible to me because, you know, a shorter version of this. I'm not looking for a comment. I just like to make a speech about justice for polluters. That's not how supr. Court arguments are supposed to work. Right. The justices just making these statements about their principles. And yet Kavanaugh was just explicit about this. And it seemed to me like while the rest of the country watches Mudang Tiktoks, you know, Brett Kavanaugh is watching videos of companies or cities dumping sewage into the waters and thinking, ah, nature is so soothing.
- [23:45]
Kate Shaw
So I pull up the occasional Mudang video, just like on the Internet. But I didn't realize Mujang was all over TikTok. This might be a reason to consider dipping back into TikTok, which I rarely do. But Mudang's getting big, which makes me sad.
- [23:56]
Melissa Murray
Mudang is getting big.
- [23:58]
Leah Lippman
She says Mudang is big. Has been big for a while. Has been.
- [24:02]
Kate Shaw
Okay, so I've watched just the baby.
- [24:04]
Leah Lippman
Baby videos where you have been living.
- [24:07]
Kate Shaw
He's not like, mom big as his mom. No, he's still a bit little.
- [24:10]
Melissa Murray
We don't mean inside, Kate. It's a baby. It's a baby hip hop.
- [24:13]
Kate Shaw
I'm saying he's bigger than he was when he was. Oh. I was saying I'm sad that his size is increasing because he was so little initially. Okay.
- [24:21]
Leah Lippman
Okay, good.
- [24:22]
Melissa Murray
I'm gonna glad you clarified that because we were going to have to, like.
- [24:25]
Kate Shaw
Go have an intervention.
- [24:27]
Melissa Murray
Yeah.
- [24:27]
Leah Lippman
We're going to have to discover this super secret baby hippo. Did you guys know about this hippo named.
- [24:34]
Melissa Murray
Did you know about Mudang?
- [24:36]
Kate Shaw
Entirely plausible, but in fact, I did know. I was. See, I'm so aware that I have charted Mudang's growth physically, not in like, likes or follows.
- [24:45]
Melissa Murray
Only you would have Mudang on a growth chart.
- [24:47]
Leah Lippman
Yeah.
- [24:49]
Kate Shaw
I just, you know, I want Mudang to have. To be able to. To swim and grow in clean waters is what I'm saying.
- [24:55]
Melissa Murray
And Brett Kavanaugh, in fact, is justice for Mudang.
- [24:59]
Kate Shaw
Yes.
- [24:59]
Melissa Murray
Not the polluters.
- [25:01]
Kate Shaw
So there was some effort by the federal government to kind of push back against Kavanaugh's justice for polluters sort of through line, and, you know, his efforts to depict the supposed unfairness to the polluters that this entire regime reflects. So maybe let's play that clip here.
- [25:17]
Leah Lippman
You're suing San Francisco separately for a lot of money based on a standard that they had no idea.
- [25:25]
Melissa Murray
You know, at least that's the theory.
- [25:27]
Leah Lippman
That's the theory.
- [25:28]
Melissa Murray
In your position.
- [25:29]
Leah Lippman
Your position would allow that?
- [25:31]
D
I don't.
- [25:32]
Kate Shaw
I don't think.
- [25:32]
Leah Lippman
Yes, it will.
- [25:33]
D
I mean, the Bayside complaint is exhibit A for why what you said is not going to be true. The standards that are Violated in those cases are numeric water quality criteria.
- [25:44]
Kate Shaw
And one point. So that's the federal government responding. And then there was a point at which Kavanaugh's solicitude for the polluter class.
- [25:52]
Melissa Murray
The polluter talk.
- [25:55]
Kate Shaw
Was just, like, too much stupidity for Justice Kagan to handle. So let's roll that tape.
- [26:01]
D
I see. And if this issue of, like, we don't know what we're supposed to do, it's horribly unfair. And you think, well, they've really not come up with any particular way in which that's true. I mean, I thought that most of these were something like this. There's a California water quality standard that says waters shall not contain floating material in concentrations that adversely affect fishing and swimming. And it turns out EPA says that notwithstanding that standard, San Francisco has left lots of toilet paper floating in Mission Creek. I mean, that's not a we don't know what to do issue. Like, we know you're not supposed to leave toilet paper floating in Mission Creek, don't we? That's right.
- [26:44]
Leah Lippman
That's one example.
- [26:45]
D
There are plenty of others. I mean, there might be examples where they don't know something, although they haven't come up with any, but there are plenty of examples. I could go on and on. There are plenty of examples where it's obvious, you know, don't, like, spew the kind of chemicals that discolored the water.
- [27:05]
Leah Lippman
I appreciate and relate to these moments where the stupidity is just too much for Justice Kagan, who I think had, like, operated in this universe where she thought smart arguments and smart people rose to the top. And it's just endlessly frustrating to her to be reminded that that is not, in fact, the case. Because that Exchange was just 911. I'd like to report a murder like a body has been found in a pool of brown water. You know, I. Chief Justice Roberts, you have the opportunity to do the funniest thing ever. Assign the majority to Coach Kavanaugh, and then we will keep our fingers crossed that the dissenters give it to Justice Kagan, and she will murder this whole argument and him again and again and again some more.
- [27:53]
Kate Shaw
It's the only thing keeping me going after this argument is thinking about that dissenters.
- [27:56]
Leah Lippman
This argument was so brutal, brutally stupid. I mean, speaking of brutally stupid, Coach.
- [28:04]
Melissa Murray
Kavanaugh wasn't the only Republican appointee to take a body blow during the argument. So let's roll the tape of Justice Jack absolutely bodying Justice Gorsuch.
- [28:15]
Leah Lippman
Is that if that's the case, then I guess I'm kind of circling back to the Chief Justice's question and really maybe administrative agencies generally, the point was to give people notice ex ante of their legal obligations rather than rely on tort ex post nuisance law.
- [28:34]
D
I'm a little surprised by the suggestion that the goal of the statutory permanent process here was fair notice. I thought the goal was to ensure that there were clean waters in the United States and that that was not actually happening under the previous regime. And so Congress was giving the EPA additional tools to effectuate that result.
- [28:56]
Melissa Murray
It seems that a mutual respect for the rule of lenity will only get you so far when one of you is spewing absolute nonsense. So, or bs Lesson learned.
- [29:08]
Kate Shaw
The honeymoon between those two felt like it was over in that argument. I mean, I mean, I think it's true they have like points of convergence, but this is clearly not one of them. And just to kind of underscore the insanity of Gorsuch here, he is literally saying, and Kavanaugh alluded to the same thing earlier, that the whole point of the Clean Water act is to help polluters. And KBJ is like, I read the words, Neil, it's called the Clean Water act and not the Safe harbor for Polluters Act.
- [29:36]
Melissa Murray
But. And she's actually right. And again, because this is a court that professes an interest in history and tradition, maybe this history will be instructive. The Clean Water act was enacted in 1972 in response to a series of absolutely horrific water pollution events that took place in the 1960s. So there was in 1968 a survey that revealed that the pollution levels were so bad in the Chesapeake Bay that fishermen suffered millions of dollars in lost revenue because they couldn't sell the polluted. And There was a 1969 study that found that bacteria levels in the Hudson river were 170 times the legal limit. The same year, pollution from local food processing plants killed 26 million fish in a Florida lake, which was the largest fish kill on record at that point. And most famously, water pollution caused an enormous oil slick that resulted in a fire on the Cuyahoga river in, in Cleveland, Ohio. It's hardly surprising that when liberal squish Richard Nixon established the EPA in 1970, just two years before Congress enacted this Clean Water act, it was understood that dealing with the growing issue of water pollution was going to be a major part of the agency's charge. But again, history and tradition only works when you're trying to protect a gun and not protect women. But, but water pollution, I don't know her.
- [30:58]
Leah Lippman
Yeah.
- [30:59]
Kate Shaw
Right. So who's going to let historical facts get in the way of hobbling administrative agencies? Definitely not one. Neil M. Gorsuch, true to his EP.
- [31:07]
Melissa Murray
Say his whole name, Kate, what is it?
- [31:10]
Kate Shaw
Neil McGill. Gorsuch. Neil McGill.
- [31:12]
Melissa Murray
That is a man who wants to pollute.
- [31:15]
Kate Shaw
Neil McGill, Gorsuch, M. McGill. I think either way, yeah, this is, this is his true passion and also aligns with his true EPA villain origin story. He could not resist taking yet another opportunity to press the case against agencies, both EPA specifically and more generally. So let's play a clip and then explain it.
- [31:34]
Leah Lippman
No, I'm just asking as a practical matter, if, if, if, if we're essentially saying don't create a nuisance and EPA sets the standard as opposed to an expert witness, what, what value has been added? He is asking, as if it were a rhetorical question, why on earth would we want an agency to decide if polluters polluted the water too much and caused harm to certain species? Why not just have a lay jury do it? Right. They could hear from an expert and it would be the same. And he is asking this at the time when non delegation petitions from the federal government have arrived at the Supreme Court. You know, the non delegation doctrine to remind listeners challenges the idea that Congress may delegate to administrative agencies the power to make rules governing private parties. So the non delegation doctrine is not a thing. It's not the law. It was invoked by the supreme court twice in 1935, but because Clarence Thomas would like to make non delegate, great again, two court of appeals have insisted that non delegation is in fact the law and invoked the doctrine to invalidate two federal programs. And the Solicitor General has asked the Supreme Court to review those decisions, which again could be the first step of the Supreme Court actually reviving the non delegation doctrine.
- [32:52]
Melissa Murray
Why would the Solicitor General do that? Just because you can't allow those decisions to stand.
- [32:56]
D
Right.
- [32:56]
Leah Lippman
Because what, what they've done is these courts have revived the non delegation doctrine in their circuits and when they do, you know, they are potentially vacating a rule nationwide. So I don't think the Solicitor General really has a choice.
- [33:11]
Melissa Murray
So you know who also doesn't have a choice?
- [33:14]
Leah Lippman
Planet Earth. Right.
- [33:16]
Melissa Murray
And clean drink drinking water.
- [33:19]
Leah Lippman
You're all in danger. Poop and polluters. You'll be fine. And I just want to pause over how ridiculous this timeline has become. Like we are debating whether the EPA can, under the Clean Water act, impose water quality standards it has determined or necessary to stop billions of gallons of sewage from being dumped into the ocean. It's just that every year the court is doing something weirder, right? They're overruling Roe, they're nuking student debt relief, then they're declaring the President is above the law and entitled to absolute immunity. And I've talked about this before, but I was working on a book last year about the Supreme Court, and I remember when I was going through the stages of talking to publishers, it was like, okay, well, yes, the Supreme Court overruled Roe, but are they really going to do anything else crazy? And then they nuke student debt relief. And the question is, okay, well, so they nuke student debt relief. Are they going to do anything crazy? And now it's presidential immunity, and now it's, can San Francisco throw billions of gallons of shit into the ocean? And we're just going to pretend that's okay. And so if you want to hear more about this endless devolution of the Court into madness, you can actually pre order my book now. We'll put the link in the show note, it's called Lawless, so it will be out in June whenever the Supreme Court does the next insane thing, which appears to include, again, blessing gallons of shit being poured into the ocean and declaring that the Clean Water act meant to protect that. I mean, again, it's just the stupidest of timelines.
- [34:52]
Melissa Murray
It's not just a stupid timeline. It's so meta. Like, I mean, this is a court that's, like, literally shitting on people.
- [34:57]
Leah Lippman
It's going to shit. Everything is going to shit.
- [35:00]
Kate Shaw
Yeah. The one silver lining in this cursed, cursed timeline that we are living in is that you get to buy and read Leah's book to help you make sense of all of it.
- [35:08]
Melissa Murray
It's true. We get to listen to her all the time and we feel better. So I think you might want this on your nightstand. If you're looking around, you're like, why is that water so brown coming out of my closet? Let me consult the book.
- [35:20]
Leah Lippman
It will explain why it's Neil Gorsuch's fault.
- [35:22]
Melissa Murray
So always. Anyway, stepping back a little, we wanted to note something that the Democratic appointees also floated at oral argument, which is that to the extent these conditions may seem too confusing or somewhat unfair, San Francisco actually has a number of avenues to challenge them beyond this particular challenge, which seems intent on blowing up water quality standards across the nation. So, for example, San Francisco, if they thought these restrictions were too confusing or unfair, could challenge them on the ground that they are arbitrary and capricious. If they thought that the EPA didn't have good enough reasons to adopt general water quality standards rather than specific effluent limitations. San Francisco could also do that, that through an arbitrary and capricious challenge. If the issue is that the standards are too vague, San Francisco could challenge their vagueness on vagueness grounds. So there are many avenues that San Francisco could have pursued. If the city truly feels that it has been wronged by the agency, it doesn't necessarily have to pursue this path, which again involves trying to wipe out water quality standards writ large. Hobble the Clean Water act and. And hobble the epa.
- [36:37]
Kate Shaw
Yeah. So surprising no one. The conservative justices, you know, the ones who allegedly, at least this is like their, you know, mythology fever restraint and judicial minimalism turns out bullshit. Maybe always was it definitely always in the water. Right. So they do seem very inclined to completely disregard all of these possible off ramps. To disregard, kind of acknowledging that San Francisco very explicitly chose not to take these more modest routes to potentially getting some relief that doesn't involve blowing up this entire set of standards. But it is possible, I suppose, that a majority could say something like, you can only do these, like permits like this, only under certain circumstances. They could limit the EPA's authority without wiping it away entirely. That, based on what we heard at argument, may be the best we can hope for. Which is a very, very bleak place to be.
- [37:26]
Melissa Murray
I mean, I have to say I'm a little disappointed in San Francisco and, and just want to note, Oakland would never.
- [37:35]
Leah Lippman
It is a sad state of affairs because they could have challenged these on other grounds and they did do some of them in the lower court, but then they didn't ask the Supreme Court to take up any of them. And it seems like they could have, should have done so because you know the court is going to rule against the epa. Right. The only question is how they violated the law. So why not offer the court up a narrower ground that doesn't call into question the EPA's ability to adopt these clean water standards, which are sometimes necessary, as the federal government lawyer noted, if you don't have the specific information that allows you to adopt, you know, more specific rules about particular polluters. But this is where we are. The stupidest, shittiest of timeline lines.
- [38:25]
Melissa Murray
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- [40:16]
Leah Lippman
Strict scrutiny is brought to you by Americans United for Separation of Church and State. Clean water, fresh air, our health, electricity. We tend to take for granted the things that matter most, like the separation of church and state. For more than 75 years, Americans United has been on the front lines defending your freedom to live and believe as you choose, so long as you don't harm others. But that right is not a given. Every day it seems like Christian nationalists are hatching new plots to force us all to live by their narrow beliefs. Backed by a billion dollar shadow network, this vocal minority is pushing their anti democratic agenda everywhere. But here's the thing. You can make a difference. Join Americans United for Separation of Church and State and our growing movement Because Church State separation protects everyone. Learn more and get involved@au. Let's quickly recap some of the other cases. On that note, one of the cases the court heard last week was Bouarfa versus Mayorkas. This is a case about judicial review of immigration determinations. Federal law, the Immigration and Naturalization act governs the availability of visas and it requires DHA Whole M Security to reject visas under certain circumstances which are known as non discretionary denials. And courts can review those non discretionary denials, but they cannot review discretionary decisions. Immigration law also provides that after a visa has been approved, Homeland Security may revoke the approval at any time for, quote, what the Secretary deems to be good and sufficient cause, end quote. The question here is whether you can get that judicial review when a visa has been revoked based on a reason that would supposedly be grounds for a non discretionary denial. That is, if the visa had been denied in the first instance for this reason, you could have gotten review. The question here is, if the visa has been revoked for that reason, can you still get review as you would for a non discretionary denial?
- [42:18]
Melissa Murray
Amina Boerfa filed a visa petition on behalf of her husband, who's a non citizen. And uscis, which is the Citizenship and Immigration Service, approved the petition, but then later revoked that approval after finding that Bora's husband had previously entered into a different marriage for fraudulent purposes. Ms. Bara filed a complaint in District Court seeking review of that determination. And the question is whether she can get review of that revocation, because it would have been, if it were in a denial posture, a non discretionary denial. This was in all respects a pretty short, short argument. And it wasn't entirely clear which way it seemed like the Court would go, although it seems like the government is likely to prevail here, maybe because it's immigration. The only justice who seemed to obviously be on Borafa's side was Justice Gorsuch.
- [43:13]
Kate Shaw
Some of the Justices uncertainty about the case focused on whether the existence of a sham marriage was actually a non discretionary ground for denying a visa. And some of the Justices seemed concerned about a related sort of perverse consequence of that argument. So they were concerned that saying that the existence of a sham marriage is a non discretionary basis for rejecting a visa would mean that the agency could never exercise discretion and wave that as a reason to reject a visa. But there also seemed to be resistance to the petitioner's statutory argument. And as we said when we summarized the case, the INA's revocation section is generally quite discretionary. It's the initial approval SL denial section where there is a good amount of non discretionary language. And so there was some discomfort with just importing the mandatory language into the discretionary section based on the idea that it would be odd to be able to obtain review as to the initial approval or denial, but not as to the revocation. But that oddness isn't normally a reason to overlook statutory language, especially if there may be, as was floated in the argument, some plausible explanation for treating the two scenarios differently.
- [44:13]
Melissa Murray
The court also heard oral argument in Medical Marijuana versus Horn. And this was a case about damages under the RICO statute. That's the Racketeer Influenced and Corrupt Organizations statute. The question here is whether economic harms resulting from personal injuries are the sorts of injuries to, quote unquote, business or property by reason of the defendant's acts under rico. So RICO gives private plaintiffs a cause of action to recover treble damages for injuries to business or property when those injuries occur because the defendants have committed certain RICO offenses. But RICO excludes recovery for personal injuries. Here, Douglas Horn, who is a commercial truck driver, consumed Dixie X, a product that the petitioner medical marijuana advertises as being THC free. THC is the psychoactive component in marijuana. A drug test, however, detected THC in Mr. Horn's system and he was fired from his job. So Mr. Horn sued medical Marijuana, the manufacturer of Dixie X, arguing that his lost wages and really the loss of his job was an injury to business or property, and namely his business driving the commercial truck.
- [45:28]
Leah Lippman
So Lisa Blatt argued for petitioner medical marijuana and Isha Anand argued for Douglas Horn. And it seemed as though the justices, I think a majority of them probably were skeptical of medical marijuana's position. And that prompted some characteristic character filled moments of Lisa Blatt talking to the Justices like they're normal people, which in some ways respect and I love. At other times it led to some interruptions or weird exchanges, particularly between Lisa Blatt and Justice Kagan and then between Lisa Blatt and Justice Jackson. So the justices skepticism came from two directions. One was the sense that loss of a job is an injury to a business. A job is someone's business. So a purely textual skepticism petitioner medical marijuana seem to concede that in some instances the loss of a job or a workplace could constitute an injury to a business or property under rico. Like if someone extorted you out of a job or blew up your workplace.
- [46:26]
Melissa Murray
And petitioners, that's the Artie Buco RICO from the Sopranos.
- [46:30]
Leah Lippman
Yeah, but medical marijuana seem to want to exclude injuries to business or property that were caused in some sense by a personal injury or injury to a person. But here's that pesky textualism rearing its head once again. That's not really what the statute says.
- [46:45]
Kate Shaw
And then Justices Sotomayor and Kagan and Jackson articulated a second basis for skepticism about medical marijuana's view that injuries that are caused by personal injuries are excluded from recovery, even when they are business or property injuries. And they really emphasize that what medical marijuana was objecting to was whether the alleged RICO violation, like mislabeling, caused the plaintiff's injuries, specifically the employer's decision to fire him. But as they noted, that causation question is a separate question from whether the injury or to the plaintiff's business or property as required by rico. Right here, as in any RICO case, the plaintiff has the burden of establishing causation. And that causation question really wasn't before the court. It would have to be sorted out in the case eventually on remand. And Isha Anand, who again argued for Horne, the employee, conceded that it might be an uphill battle and her client might lose on that issue, but that that wasn't the issue that the court was faced with deciding.
- [47:37]
Leah Lippman
Yeah. So it's not entirely clear how the case is going to be resolved. Some of the Republican justices, like the chiefs, seemed concerned that RICO plaintiffs could plead around the exclusion of personal injuries by recasting them as injury to business or property. But as the Democratic appointees pointed out, if they can do that, that's because Congress drafted the statute to exclude only certain types of injuries, not particular ways in which injuries are caused. And in any case, the requirement that plaintiffs show proximate causation, that the defendant's actions cause their injury, could take care of many of the cases that the Republican justices seem concerned about. So here, for example, it's probably going to be difficult to establish that medical marijuana's marketing of Dixie X caused Horn to lose his job when there's an independent decision by a third party, the employer involved. Here.
- [48:24]
Melissa Murray
There was an interesting moment where the Chief justice appeared to confuse one of his colleagues with the late Antonin Scalia. He referred at one point in the oral argument to Ishanan's dialogue with, quote, unquote, Justice Scalia. And that raised some eyebrows. You know, maybe it's just spooky Season upon Us and the Chief justice is like Haley Joel Osment seeing dead people everywhere. That could happen. Or maybe it's just a credit to Esha, who is such an effective advocate, that she is actually capable of communing with Justices in the Great Beyond. Either way, a notable slip of the tongue.
- [49:05]
Kate Shaw
It was weird, and, I mean, I just felt like there was a moment, a beat of silence, and no. No one said anything to correct him, and he hadn't even. He didn't even realize the mistake. It was really quite strange. But Isha was amazing, as she has been in every argument we've heard from her. So she just was unfazed and pressed on. But it really.
- [49:21]
Melissa Murray
Let me get my Ouija board. Hold on.
- [49:23]
Leah Lippman
Let me see what he says.
- [49:25]
Kate Shaw
But it was like between that weird slip up and the fact that he thought his immunity opinion would stand the test of time. Right. Rise above politics. The things that we know from the Times reporting, he believed in completely deranged fashion what happened would would receive his immunity decision. It's really like there seem to be some signs that John Roberts is not necessarily at the very top of his game in this moment.
- [49:46]
Melissa Murray
The court also heard oral argument in Bufkin vs McDonough. And Mel Bostwick appears to be headed to a wit in a veterans benefit case. She previously argued George versus McDonough and she has been successful in a string of lower court cases on veterans benefits. She's literally a veteran on veterans benefits. The question in this case is whether the Veterans Court must ensure that the Department of Veterans affairs, the VA, properly applied a statutory rule in deciding the availability of veterans benefits.
- [50:18]
Kate Shaw
Federal law requires the VA to give, quote, the benefit of the doubt to a veteran claiming disability benefits when there is, quote, an approximate balance of positive and negative evidence. In reviewing a VA benefits determination, the veterans court must, quote, take to account of the VA's application of the benefit of the doubt rule. And the question here is whether this due account provision requires the Veterans Court to independently assess whether the VA correctly applied the benefit of the doubt rule or it instead authorizes only clear error review.
- [50:43]
Leah Lippman
The federal government argued that the Secretary's decision is only reviewed for clear error and that veterans cannot get the court to independently review the decision. And there seem to be concern in the argument that this would make the due account provision and meaningless, something several justices brought up and that is the October sitting, the first sitting of October term, 2024. It is going to be a long ass term. And on that positive note, let's discuss some court culture. I'm sure things are going great in all the other courts in the United States. So let's check in on my home circuit, the sixth Circuit. In a previous episode, we mentioned different state court decisions on whether Robert F. Kennedy Jr. S name would remain on the ballot in states after he withdrew from the election late in the game. You know, in many cases after some ballots were already printed. And one of those states was in Michigan where the Michigan Supreme Court ruled that under Michigan law, RFK was not entitled to have his name wiped away from the ballot at this late stage of the Game name. So naturally, RFK decided to go to federal court to ask them to get his name off the ballot, arguing that it violates his First Amendment rights to send a message that he wants to be a presidential candidate when he does not, in fact, want to be one, and that that First Amendment interest overrides Michigan's interest in the orderly conduct of presidential elections. You know, ballots have already gone out in Michigan. Hundreds of thousands of ballots have been returned. We're less than a month from the election. Ladies, a bear would not do this to democracy.
- [52:20]
Melissa Murray
Always choose the bear.
- [52:20]
Kate Shaw
Another reason to choose the bear.
- [52:22]
Leah Lippman
I'm your favorite reference, baby. The bear.
- [52:25]
Kate Shaw
So Kennedy, who loves democracy far less than the bear, was unsuccessful before a panel of the 6th Circuit. And when he sought rehearing on bank, the court denied, but by the narrowest of margins. And some six circuit judges wrote separately to basically say, yeah, let's do this. And their claim is that Purcell, which is a general principle that courts should not upend election administration on the eve of elections, doesn't bar this intervention because the Michigan ballots are themselves confusing. And of course, this is an argument that never seems to have any purchase with this kind of judge when applied to confusing voter ID laws or confusing precinct rules or whatnot. But they also say that the Michigan Supreme Court got Michigan law wrong, and just like cherry on top, that the Michigan Secretary of State, who was, by the way, a professor of election law before becoming the Secretary of State, is unilaterally changing the rules and potentially the outcome of the election. And, you know, so all these Michigan officials were obviously proceeding not sufficiently mindful of the overarching rule of election administration, which is that only Republicans get to do things that advantage them and change the outcome of an election on the eve of an election, or maybe anytime. But, I mean, the good news is that RFK kind of chaos monster did not manage to upend the election in the state of Michigan. But it is terrifying how. How close it seems like he got.
- [53:44]
Leah Lippman
Yeah.
- [53:45]
Melissa Murray
Let's now turn from Michigan to the Nebraska Supreme Court, which invalidated an effort by Nebraska state officials that would have disenfranchised tens of thousands of people with prior felony convictions. Nebraska is an electoral, I don't know, polar coaster right now. There's a tight Senate race this cycle in Nebraska, and of course, this is a state that doesn't use a winner take all model for its Electoral College votes. Nebraska has five electoral votes in the Electoral College, and two come from the state at large. But then one comes from each of three congressional districts. So there's a lot of activity in Nebraska, particularly in the little blue DOT districts where Democrats might be able to pull an electoral college win or get an electric electoral college vote. So all of this makes Nebraska a place to watch right now. And apparently the Nebraska legislature and the Nebraska Republicans know how hotly contested this is because the Nebraska Legislature enacted a law that automatically restored voting rights to individuals who had completed their sentences. But then the Republican AG in Nebraska issued an opinion saying that the legislature new law violated the Nebraska constitution. And for good measure he said that another law from 2005 also violated the state constitution in re enfranchising individuals. The Republican Secretary of State then prohibited election officials from registering any person whose voting rights would have been restored by those laws. Again, an election battleground state where there are a number of electoral votes that don't necessarily go with the entire state but can be peeled off and might go to different constituencies again.
- [55:36]
Leah Lippman
And you all of a sudden discover that this 20 year old law is unconstitutionally.
- [55:41]
Melissa Murray
Exactly.
- [55:42]
Leah Lippman
Now would be the time not to enforce it.
- [55:45]
Melissa Murray
So weird. So weird.
- [55:47]
Leah Lippman
Yeah. This matter reached the Nebraska Supreme Court who basically said, said no, definitely not. You know, only we, the Nebraska Supreme Court declare laws on constitutional Republican attorneys general and secretaries of State. Don't you know, the opinion asked, quote, do we want to live in a world where every state employee who has a hunch a statute is flawed gets to ignore it? Question mark. So did you hear that the Electoral.
- [56:14]
Melissa Murray
Count act might be unconstitutional? Likely unconstitutional. Same energy. Same energy.
- [56:20]
Leah Lippman
Yes. Yeah. So now Nebraskans who were re enfranchised actually could register. But as Justice Lindsay Miller Lerman, who's been on that court for many years, pointed out, the Nebraska Supreme Court issued this opinion and order so late, after months of consideration that after the order there were just two days left of online voter registration and nine days left of in person registration. So while the court ultimately rejected the state's blatant partisan effort at disenfranchisement, it also partially rewarded that effort through the timing of the decision. It's almost like they took a page from the US Supreme Court on the immunity decision.
- [57:04]
Melissa Murray
I learned it from watching you, Dad. I learned it from watching you.
- [57:07]
Leah Lippman
Exactly. Fish rots from the head. Did want to take an additional beat on Justice Lindsay Miller Lerman's separate opinion, which is a partial concurrence and dissent. She agrees with the bottom line. Conclusion. There is a section entitled Procedure. Timing is everything. Let the games begin. Or was it a mere coincidence? Question mark. Love the Taylor reference. Love the notes about procedure and it concludes with noting. It is most unfortunate that this court encourages this apparent scheme.
- [57:41]
Kate Shaw
Legendary I, I, yeah, just legendary. You know, we've been aware of Justice Miller Lerman for a while. I'm very happy that we've had a chance, we now have a chance to mention her and that epic writing. And you know, as a practical matter, it's just a really important point. There had been so much, the rules had changed. People were understandably concerned that they might run afoul of the law after having finished their sentences if they just tried to participate in, you know, self governance. And I hope that the on the ground forces in Nebraska aren't going to mobilize quickly enough and the people are going to be comfortable enough to actually come forward and register. But obviously like these insane games by state officials have quite deliberately undermined like meaningful broad based participation. And it's like when the Nebraska legislature, which is a conservative body by super majority decides to reenfranchise people who have completed their sentence. It's just insane that the executive branch tried to thwart it the way they did.
- [58:33]
Melissa Murray
Your point about the confusion? Again, this is sort of part of the Dobbs post ops landscape. Like this same playbook can be deployed in any number of contexts. It's not just abortion where you sow confusion and make it hard for people to understand what their rights are. Like the one place where it might actually really count right now in voting, the same playbook is being being used. Like make, make it a weird and confused landscape and then people are deterred from doing what they might actually be allowed to do. All right, speaking of states that we have to just deal with, if anyone's going to talk about Florida, it's going to be me. So let's turn to the Sunshine State. Florida men had appallingly been threatening television stations that aired ads that were supportive of Florida reproductive rights ballot initiatives. Florida officials, including the Surgeon General of Florida and the Department of Health and the Department of Health general counsel told television stations in the Sunshine States to remove political ads supporting the amendment Amendment four or they would face criminal prosecution. And if that sounds to you like a bit of a First Amendment problem, then don't bother going to law school. You might as well just be be a lawyer and maybe you should go down to Florida and be the general counsel of the Department of Health. The creators of these advertisements sued these officials and they asked a court to stop these blatant efforts to violate the First Amendment. And a district court in Florida said yes. This seems like it violates the First Amendment and issued a temporary restraining order telling the Florida officials to stop threatening people, people for exercising their actual First Amendment rights. And in the words of this absolutely epic and legendary order, quote, to keep it simple for the state of Florida. And that's really important. Keeping it simple for the state of Florida and its officials. It's the First Amendment, stupid. End quote. And check that into my veins. I love that.
- [60:34]
Leah Lippman
I love the order. It was horrifying what Florida was trying to do here, but it is very much a part of a pattern of Republican officials basically fighting democracy and trying to undermine democracy when the issue of voting on reproductive justice actually comes up. I mean, obviously you two wrote about this with respect to like the Supreme Court's failure to safeguard the democratic process, that they then handed the issue of reproductive just justice over. But then we've seen these state level efforts of people trying to keep ballot initiatives, you know, off of the ballot, like in Michigan, or trying to increase the. Yeah, right, exactly. The percentage of people who have to ratify a ballot initiative in Ohio and now these efforts in Florida. And it is again just making very clear that this was never about just letting democracy play out. It was about control.
- [61:30]
Melissa Murray
Let me just say I do love the Sunshine State. I was raised in Florida. I am not the one making it Florida. It is the Surgeon General, the General Counsel, the Department of Health. So I just want to make that clear. All of my ire is directed at these dudes who literally want to just suppress anything that's antithetical to their position. So that's the flora, duh. Of which I complain, not the otherwise beautiful Sunshine State with incredible humidity that made me think I had curly hair.
- [61:59]
Leah Lippman
For far too long.
- [62:01]
Kate Shaw
All right, moving on to Georgia, where we actually had two very positive developments in the courts in the last week or so. First, a Georgia trial court blocked a controversial new rule that was issued by the state election board and that would have given local election officials the power to block certification of votes at the county level. Judge Robert McBurney, whose name may be familiar because he also struck down the state six week abortion ban back in September, although that was a short lived order wrote in this case regarding the certification of votes, quote, if county election board members were free to play investigator, prosecutor, jury and judge. And so, because of a unilateral determination of error or fraud, refused to certify election results, Georgia voters would be silenced. Our constitution and our election code do not allow for that to happen. So at least for now, that rule, which again had been wildly controversial from the moment it was issued is not in effect.
- [62:52]
Melissa Murray
McBie also invalidated a rule issued by the same state election board that would have mandated hand recounts of Georgia ballots. His opinion reasoned that this was a new requirement. True. That was slated to take effect after voting had already begun. Also true. And without any training or any extra budgetary allotment provided to do this work. And that all of this was thus likely to result in what he called administrative chaos. Also true, that would be totally inconsistent with an obligation to, quote, ensure that our elections are fair, legal and orderly, end quote. That is Robert McBurney staring in Purcell and writing this particular opinion.
- [63:37]
Leah Lippman
But here too, right, you can just draw parallels to this isn't just happening in Georgia. Republican officials and know groups affiliated with the Republican Party are trying to undermine the sound counting of votes and election administration elsewhere. You know, we talked about the effort where RFK Jr. Wanted Wisconsin officials to put like a little sticker over his name on the ballots. And that would have interfered with the ability to accurately count ballots in Wisconsin, thereby also undermining the ability to actually conduct a fair counting of votes and clearing the way for possibly more shenanigans. So. Right. Okay. Speaking of good state court decisions, we also got a decision out of Tennessee. A three judge panel of the Tennessee Chancery Court ruled that several women who were denied abortions under Tennessee's restrictive abortion law should have been able to receive abortions. This case, Blackman vs. Tennessee, is like the Amanda Swarovski case out of Texas. It sought to clarify the medical exemptions that are available under Tennessee abortion ban and the court granted the plaintiff's request to block the state from enforcing its abortion ban as applied to certain pregnancy complications and fetal diagnoses, thus allowing providers to offer abortion care in those instances without fear of being criminally prosecuted. To be clear, this doesn't invalidate the state's abortion ban. It is just a narrow ruling that says only the doctors can't face criminal liability for providing abortion in certain medical emergencies or lethal fetal diagnoses.
- [65:10]
Melissa Murray
We should also note the passing of Lilly Ledbetter, who became a kind of unlikely feminist icon and a champion for equal pay. And if her name sounds familiar to you, it's because you likely heard of her through the Supreme Court case that bears her name or the statute that followed the Supreme Court case that bears her name as well. So in Ledbetter vs Goodyear Tyler and Rubber Company, the Supreme Court ruled against Lily Ledbetter when she sued her employer for pay discrimination. And in an opinion by noted feminist Samuel Alito, who appeared to just be warming up for Dobbs. The court held that you can't review a pay discrimination claim if the claim was based on decisions made by your employer 180 days or more before you filed your claim. And. And in this situation, Ledbetter had received negative evaluations early on in her time at Goodyear for reasons that she said were rooted in sex discrimination. And because of those negative evaluations, her pay never reached the level of similar male employees. So her paychecks continued to reflect, she said, gender discrimination. Gender discrimination that she never actually knew about because she didn't know what her colleagues were getting paid. So she was being substantially docked and didn't really know.
- [66:30]
Kate Shaw
Yeah. So the court rejected that theory, finding that the amount of time she had to actually bring her claim under law started like the clock started around the time of the evaluations or the original discriminatory action, like, not on the basis of subsequent paychecks that incorporated set evaluations and that reflected discrimination. This really was, you know, this was early Sam Alito, right? Like, this was when he was still sort of like. Like he was beginning to fully embrace, like, the full diabolical Sam Alito. This was, I think, the first full term that he was at the court. He had come on board about a year ago.
- [67:02]
Melissa Murray
I started cutting my teeth by keeping women out of Princeton. But then when that didn't work, I decided to go to Goodyear and do this.
- [67:09]
Kate Shaw
And, you know, here we are all living with the fallout. But Justice Ginsburg, right, sort of knew who she was dealing with, I think, from very early on. So she was rip shit in this dissent that she wrote. But she was also constructive in that she was furious about the court court's error, but she also kind of turned her attention to Congress, urging them to amend Title 7, which is the part of the Civil Rights act that deals with employment discrimination, and urging them to explicitly allow plaintiffs like Ledbetter to recover for pay discrimination in the way she thought the statute already allowed. But to make it explicit. And Congress, in, like, you know, the halcyon days when inter branch dialogue, like, really happened, responded. So it passed the Lily Ledbetter Fair Pay Act Act. Congress enacted the law. It was the first law that President Barack Obama signed in 2009 when he was newly inaugurated. And, you know, it was an enormous moment and a victory. And she became this again, like Melissa said, sort of unlikely face. She never sought the public eye. She was just an employee who brought a lawsuit. That really did change things for many many people, and she passed away last week. Rest in Power Lily Ledbetter. May her memory be a blessing.
- [68:17]
Leah Lippman
So a few notes before we head out. It has been a wild ride for Empire City, the untold origin story of the nypd. We've dived into the militarization of the force, the policing of abortion in the early days of New York, and the very first investigation into police corruption. But as NYPD news continues to break, we know there's so much more to uncover. Cover the series finale of Empire City dropped today, so make sure to follow Empire City wherever you get your podcasts. You can binge all episodes now and enjoy ad free listening by joining Wondery plus in the Wondery app or on Apple Podcasts.
- [68:56]
Kate Shaw
As we approach a pivotal election, the choice between Donald Trump and Kamala Harris will affect more than just what happens in the United States. It will reshape our approach to global politics. On Pod Save the World co host Ben Rhodes is breaking down the implications for global democracy and foreign policy in a new special election series airing each week from now through Election Day. You can find the series Every Saturday until November 5th in your pod Save the World feed or on YouTube.
- [69:22]
Leah Lippman
Strict scrutiny is a crooked media production hosted and executive produced by Leah Lipman, 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 for Madeline Carringer and Ari Schwartz. Matt de Groot is our head of production and thanks to our digital team Phoebe Bradford and Joe Matoski, you can subscribe to strict scrutiny on YouTube. To catch full episodes, find us@YouTube.com 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.
- [70:19]
Kate Shaw
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- [70:51]
Melissa Murray
Was so cheesy my plate was filled with saucy slices.
- [70:55]
Kate Shaw
Then a flimsy store brand plate. No, no no no. Ruined it. Next time get Dixie Ultra plates three times stronger than the leading store brand. 10 inch paper plate.
- [71:04]
Melissa Murray
Dixie, make it right.