SCOTUS's Porn Problem

Summary

Podcast Summary: Strict Scrutiny – Episode: SCOTUS's Porn Problem

Podcast Information:

• Title: Strict Scrutiny
• Host/Author: Crooked Media
• Description: Strict Scrutiny delves into the intricacies of the United States Supreme Court, exploring its cases, culture, and the personalities that shape its decisions. Hosted by constitutional law professors Leah Litman, Kate Shaw, and Melissa Murray, the podcast offers accessible and in-depth analysis of legal issues affecting daily life.

Episode Details:

• Episode Title: SCOTUS's Porn Problem
• Release Date: January 20, 2025

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1. Introduction

In this episode of Strict Scrutiny, hosts Leah Litman, Kate Shaw, and Melissa Murray tackle a multifaceted discussion centered around recent Supreme Court activities, including a pivotal case on pornography regulation, the aftermath of the Biden administration, the Special Counsel report on Donald Trump, and significant shifts in First Amendment jurisprudence. The episode also touches on broader implications for constitutional law and public trust in the legal system.

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2. Key Topics and Discussions

a. Biden's Legacy and the Equal Rights Amendment (ERA) [02:25 – 08:25]

The episode opens with an analysis of President Joe Biden’s efforts to safeguard his legacy post-2024 election, particularly focusing on his recent statement affirming the Equal Rights Amendment (ERA) as the 28th Amendment to the Constitution. The hosts discuss the historical challenges the ERA has faced since the 1970s and express skepticism about the late timing of Biden's announcement.

• Kate Shaw: “Maybe this is Biden's way of taking this car out for a ride, but I'm not sure that this car is going to go very far.” [04:22]

• Leah Litman: “I do think this is a step... I do think this is a step towards galvanizing new rounds of public debate about the Constitution and sex equality.” [07:51]

b. Special Counsel Report on Donald Trump [08:25 – 14:22]

The conversation shifts to Special Counsel Jack Smith’s report on Donald Trump’s federal election interference and mishandling of classified materials. They critique the report’s strong assertions regarding Trump’s culpability and discuss Trump’s public denouncement of the Special Counsel.

• Kate Shaw: “I found it just totally uncowed. Jack Smith is like public enemy number one to Donald Trump.” [10:06]

• Leah Litman: “...it is really insistent on the principle that law matters and the rule of law matters.” [12:31]

c. Supreme Court Case: Freedom Speech Coalition vs. Paxton [15:11 – 37:44]

The core focus of the episode is the Supreme Court’s consideration of Freedom Speech Coalition vs. Paxton, a case challenging a Texas statute that imposes obligations on commercial websites publishing sexually explicit material. The statute requires age verification for users accessing potentially harmful content to minors.

• Melissa Murray: “Is it like the old Playboy magazine? You have essays there by the modern day equivalent of Gore Vidal and William F. Buckley, Jr. Not in that sense.” [01:10]

• Leah Litman: “Several justices, including the chief, Alito, Barrett, Kavanaugh, went on and on about how porn has gotten worse.” [24:16]

Implications for First Amendment Jurisprudence

The hosts express concern that the Supreme Court may be moving away from the established strict scrutiny standards for content-based restrictions, potentially undermining First Amendment protections.

• Leah Litman: “If you loosen up strict scrutiny here because it is pornography... what then does that mean for First Amendment jurisprudence in other contexts?” [27:36]

• Kate Shaw: “The Court has been on a tear shredding federal anti-corruption laws... facilitating an environment in which grift and corruption are prevalent in Washington.” [17:47]

Notable Exchanges and Quotes

• Kate Shaw: “The question now is what does this statement from the Biden administration really do vis a vis the era, which is apparently kind of parked on the sidelines.” [06:17]

• Leah Litman: “She did point out as well that if the Court said intermediate scrutiny applied, then the Court might be opening the gates to a lower level of scrutiny in other content-based restrictions.” [40:46]

d. Other Significant Supreme Court Cases [37:44 – 58:05]

The episode covers several other Supreme Court cases with significant legal implications:

1. Hewitt vs. United States: Concerns the interpretation of the First Step Act and the practice of stacking sentences.
2. Thompson vs. United States: Explores the distinction between false and misleading statements in the context of financial disclosures.
3. Stanley vs. City of Sanford, Florida: An anti-discrimination case involving post-employment benefits and the Americans with Disabilities Act (ADA).

• Melissa Murray: “The issue had divided the lower courts... the Court went with their usual type, a white male, former SCOTUS clerk.” [45:52]

• Leah Litman: “She seemed to be on the fence... but Justice Sotomayor was not impressed with her colleague’s suggestion.” [46:56]

e. Opinions and Court Decisions [58:05 – 74:44]

The hosts briefly discuss two unanimous Supreme Court opinions:

1. EMD Sales vs. Carrera: Concluding that a preponderance of evidence standard applies when employers seek exemptions from the Fair Labor Standards Act.
2. Royal Canaan vs. Westchlager: Holding that amending a complaint to delete federal claims necessitates remanding the case for lack of supplemental jurisdiction.

• Leah Litman: “Justice Kagan wrote that opinion.” [58:52]

f. 5th Circuit's DACA Decision [58:52 – 63:16]

The podcast highlights the 5th Circuit’s decision on Deferred Action for Childhood Arrivals (DACA), declaring parts of the program illegal but placing the decision on hold to prevent immediate loss of work authorization for recipients.

• Leah Litman: “When Justice Barrett has replaced Justice Ginsburg, there's a real possibility the Supreme Court could be on the verge of ending the DACA program.” [60:34]

g. Supreme Court Ethics and Public Confidence [63:16 – 73:44]

The hosts discuss ethical concerns within the Supreme Court, referencing a Senate Democrats report criticizing justices for accepting extravagant gifts and creating appearances of impropriety. They also touch on declining public confidence in the American legal system.

• Kate Shaw: “They won the Golden Duke Award for best scandal... we know you worked for it.” [71:10]

• Leah Litman: “The public confidence in the American legal system has plunged... confidence dropped by a staggering 24 percentage points to 35%.” [70:40]

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3. Notable Quotes with Timestamps

• Melissa Murray [00:49]: “And what percentage of the material on that is not obscene? As to children?”

• Leah Litman [01:15]: “...a friend of the pod, Samuel Alito, thinks people visit pornhub to read the articles.”

• Kate Shaw [04:22]: “If it effectively was ratified in 2020, it does raise questions about whether his administration should have said something about that when Dobbs was being litigated and decided in 2022.”

• Leah Litman [07:51]: “I do think this is a step towards galvanizing new rounds of public debate about the Constitution and sex equality.”

• Kate Shaw [17:47]: “Make sure to think of and to thank Chief Justice John Roberts.”

• Leah Litman [24:16]: “You could read it that way. More people look at it and are addicted to it and all of the harms that may flow from the consumption of pornography.”

• Melissa Murray [33:28]: “And what percentage of the material on that is not obscene as to children?”

• Kate Shaw [37:17]: “They have really created this climate in which it is very unlikely that any... federal anti corruption laws will be enforced.”

• Leah Litman [43:35]: “This is what I got from the COVID memo...”

• Kate Shaw [55:02]: “Sam Alito has chutzpah. He really does.”

• Leah Litman [70:13]: “John Roberts and the conservative justices won the Golden Duke Award for best scandal.”

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4. Insights and Conclusions

The hosts express deep concern over the Supreme Court’s potential shift away from strict scrutiny in regulating pornography, fearing this could set a precarious precedent for First Amendment protections. They highlight how recent Court decisions have eroded federal anti-corruption laws, fostering an environment ripe for political grift and corruption. The discussion underscores the Court's growing involvement in legislative-like policymaking, particularly around sensitive social issues like pornography, abortion, and discrimination.

Additionally, the episode sheds light on the declining public trust in the judiciary, exacerbated by ethical shortcomings and controversial rulings. The indictment of a prominent Supreme Court Bar member and the Senate Democrats’ report on justices’ ethics further illustrate the systemic issues within the highest levels of the American legal system.

The analysis of the Freedom Speech Coalition vs. Paxton case serves as a critical reflection on how technological advancements and evolving social norms are challenging existing legal frameworks. The potential dismantling of established strict scrutiny standards hints at broader implications for future content regulation and civil liberties.

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5. Final Thoughts

Strict Scrutiny offers a comprehensive and critical examination of the Supreme Court’s recent activities, emphasizing the profound impact of judicial decisions on constitutional law and societal norms. By dissecting pivotal cases and highlighting ethical concerns, the hosts advocate for greater judicial accountability and reinforce the importance of upholding foundational legal principles in the face of changing technological landscapes and political pressures.

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Note: This summary encapsulates the main discussions and insights from the podcast episode SCOTUS's Porn Problem. For a deeper understanding and nuanced perspectives, listening to the full episode is recommended.

Transcript

[K. Shaw]

Mr. Chief justice, please report. It's an old joke, but when an argument man argues against two beautiful ladies like this, they're going to have the last word.

[Leah Whitman]

She spoke not elegantly, but with unmistakable clarity.

[Melissa Murray]

She said, I ask no favor for my sex.

[Leah Whitman]

All I ask of our brethren is.

[K. Shaw]

That they take their feet off our necks.

[Melissa Murray]

So one of the parties here is. Is the owner of pornhub, right?

[Leah Whitman]

Yes.

[Melissa Murray]

And what percentage of the material on that is not obscene? As to children?

[K. Shaw]

Well, your honor, I. If we're talking about the youngest minors, I would agree that most of it is. And we. That is how we.

[Melissa Murray]

Is it like the old Playboy magazine? You have essays there by the modern day equivalent of Gore Vidal and William F. Buckley, Jr. Not in that sense.

[Unknown Speaker]

Wow, he was really specific.

[Leah Whitman]

So sorry, listeners, we should have given you a content warning to let you know that it seems that friend of the pod, Samuel Alito, thinks people visit pornhub to read the articles. In any event, we thought the clip would be a perfect way to usher in the second Trump term. So, hello, and welcome back to Strict Scrutin, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Whitman.

[K. Shaw]

I'm K. Shaw.

[Unknown Speaker]

And I'm Melissa Murray. And here's what we have in store for you today. We'll start off with some breaking news from the outgoing Biden administration. And then we'll bring you up to speed on the special Counsel report, or at least where it stands as of Friday, which is when we're recording. We're then going to briefly talk about how some of what we've already seen from the incoming Trump administration is the product of our good friends at the United States Supreme Court. And then we're going to recap last week's arguments, focusing mostly on the porn one, because that was quite a ride, no pun intended. And we will then wrap up with some quick additional court culture that will cover the two opinions that the Court recently issued, as well as some cases that the Court has added to its docket. So onward.

[Leah Whitman]

In the Aftermath of the November 2024 election, Joe Biden almost seemed to be quiet. Quitting the presidency, we didn't hear a lot from him. But then, in the last month, Biden has been really turning up the gas to safeguard his legacy. Much has been made of the flurry of pardons and commutations that Biden has issued. You know, the most extensive use of the clemency power in American history. But on Friday, Biden shifted gears to another aspect of his legacy, safeguarding women's rights and equality. The outgoing President issued a statement in which he stated his view that the Equal Rights Amendment to the Constitution is the law of the land and that when Virginia ratified the ERA in January 2020, the ERA, which would guarantee men and women equal rights under the law, became the 28th amendment to the Constitution.

[Unknown Speaker]

So I'm going to say good energy, but this feels a little too late, listeners. As you know, the ERA was first proposed in the 1970s and was on target to be ratified by the appropriate number of state legisl until self professed St. Louis housewife Phyllis Schlafly launched her very successful Stop Era campaign. The ratification energy stalled at the state level. A handful of states even rescinded their ratifications and the deadline for the ratification of the era actually passed. Fast forward then to 2016, when Donald Trump's unexpected victory over Hillary Clinton prompted new interest in the era. There was a flurry of activity around ratification and this was exacerbated by the concerns around safeguarding abortion access. That has again crested with the court overruling Roe versus Wade in 2022. So the question now is what does this statement from the Biden administration really do vis a vis the era, which is apparently kind of parked on the sidelines. And maybe this is Biden's way of taking this car out for a ride, but I'm not sure that this car is going to go very far.

[K. Shaw]

Yeah, so, so what does it do? I don't think we know really. I mean, there's something. One interesting thing about the way Article 5 sets up procedures for amending the Constitution is it really conspicuously doesn't involve the President. Right. It's the two houses of Congress. It's ratification in the states. Presidents have sometimes taken a lead role in advocating for ratification of or passage in Congress of constitutional amendments. But, you know, he cannot by fiat just announce that something is in the Constitution. But that's not really what he is purporting to. He's purporting to acknowledge or recognize that it has already been ratified as the Constitution contemplates, and we should just start talking about it as the 28th amendment. And you know, I actually think it's a valuable thing for him to be using the bully pulpit to do on his way out the door. I mean, the very last day. Well, look, he's in his YOLO phase, obviously, and so he's doing a lot. Who knows what the weekend holds? We're recording on Friday. But if it effectively was ratified in 2020. It does raise questions about whether his administration should have said something about that when Dobbs was being litigated and decided in 2022. So that is one of the many open questions that this announcement leaves, and one of which is what the national archivist who formally certifies amendments to the Constitution is going to do. And it seems as though the answer is nothing. Um, she has actually said she's not going to certify that the ERA has been ratified. And I highly doubt that whatever archivist Trump installs to Repl. Is going to take a different position. But I do think that galvanizing new rounds of public debate about the Constitution and sex equality and also maybe teeing up litigation that the Supreme Court will ultimately decide. I mean, even as I speak, the sentence, like, is there any way that anything is resolved productively in the Supreme Court? Not really, but in some ways, like, an answer that allows activists to start over, if that's what is required, might be valuable because we have been in this liminal space now for years.

[Unknown Speaker]

Here's my thing, though, Kate. Like, it is the Friday before the new administration comes in. I mean, we've had a long time since November 5th to do things like this. Like, why now? Like, I mean, as you say, this could have been really useful in 2022. I mean, I guess I'm just sort of a plus for effort. I get it. But it feels largely symbolic and a little bit like weak sauce right now because it's just going to get lost in all of the pomp and circumstance of whatever happens on Monday, what follows after the inauguration. I just don't think this is going to sustain a lot of energy. And that's really unfortunate because you're right, it should.

[Leah Whitman]

I mean, on some level, better late than never. And a part of me wonders, did he delay doing that and other things because he was, for example, trying to get a last batch of judges confirmed by razor thin margins in the Senate. You know, I don't totally know. I agree it would have been better earlier. And I also think it could be productive in part for the reasons Kate is giving. You know, to the extent it convinces or helps convince the public that the ERA is part of the Constitution, that is an important part of the fight, even if the Supreme Court ultimately says it's not. And I think there is a long history of various parts of the amendment process, procedural aspects of it kind of not being ignored. But the amendments take force. You know, if people across the aisle talk about them and treat them as they are part of the Constitution. Obviously, I harbor no illusions that that is going to anytime soon here, but. Right. I do think this is a step.

[Unknown Speaker]

So this is basically like us refusing to acknowledge Doge as an actual department.

[Leah Whitman]

Yeah, yeah.

[K. Shaw]

But like that's fully on board.

[Unknown Speaker]

Like, like yes. Yeah, it's fine.

[Leah Whitman]

Yeah.

[Unknown Speaker]

I'm just. Yeah. Call me on Monday though, when you're looking for your equal rights. Call me.

[K. Shaw]

We have them over the weekend and then not on Monday and not there.

[Leah Whitman]

No, actually we actually don't have them, it turns out.

[K. Shaw]

Still not.

[Leah Whitman]

Still not.

[Unknown Speaker]

This weekend's going to be like Rum Smith spring out for us. Like, okay, like do all the things, Vote do, like have jobs, everything. And it's all going to come crashing.

[K. Shaw]

Down on Monday at noon. All right, but we've got a lot to cover, so let's press on. The next thing we wanted to cover was the special Counsel report during our last regular episode. America's next top SCOTUS justice, slash Florida district court judge, slash self appointed 11th Circuit judge, sl self appointed D.C. district court judge. You probably know who I'm talking about now. America's top prosecutor Eileen Cannon had blocked, at least temporarily, the release of Special Counsel Jack Smith's reports on the Federal election interference case and also the obstruction and misappropriation of classified materials case, AKA the US Secrets in Mar a Lago Bathrooms case.

[Leah Whitman]

But in her benevolence as the consummate lawyer and professional that she is, Judge Cannon allow the Special Counsel to release the report on the election interference case. We thought we'd go through some of the highlights, or lowlights as the case may be from the report. One is the report's conclusion, quote, but for Mr. Trump's election and imminent return to the presidency, the office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial, end quote. I can imagine, like John Roberts just laughing to himself while doing the usher watch this move. Like he was never going to let that happen.

[Unknown Speaker]

Well, speaking of Donald Trump, P. Otis responded on Tuesday with a post on Truth Social claiming that he was, quote, unquote, totally innocent. He then proceeded to call Jack Smith, quote, a lame brain prosecutor who was unable to get his case tried before the election, end quote. He then added for emphasis, the voters have spoken.

[K. Shaw]

He's losing it on the nickname front lame brain prosecutor. The best he could come up with. I found that disappointing.

[Unknown Speaker]

He really needs those women who are running the New Jersey Twitter feed to step in here. Like they could really jazz this up. In any event, we don't have time to go through the entire report. But we did want to point out one thing that the report highlighted about the special counsel's investigation, which is the office's dealings with Twitter, slash X. The report details that a search warrant was issued to Twitter and a district court issued a non disclosure order that prevented Twitter from informing Trump about the warrant. Twitter, however, refused to comply, complaining that the non disclosure order, quote, impinged on its First Amendment interests, end quote. Twitter was later fined $250,000 for failing to comply with the order.

[K. Shaw]

So other than that, the report itself does not break much new ground, although I was struck by the strength of its assertion that basically, one, there was no world in which they could not have charged Trump. His violations of law were, in their estimation, so egregious, and two, that a jury would have convicted the hell out of him. Like, those are really unqualified statements in the report. But I also found Smith' short cover memo, which mentions actually both cases, both the documents and the January 6th case, a really good read that people should read, even if they don't want to read the full report. It is just unsparing in its description of Trump's conduct. It doesn't pull any punches because Trump will be the head of the executive branch, you know, hours from when you hear this episode, and it is just totally uncowed. Jack Smith is like public enemy number one to Donald Trump and he fixes his name and this extremely forceful language to a report that just says, like, yeah, there were a lot of crimes here. We charged them, we should have. We would do it again in any parallel universe. And it is just enraging that this document is the result of the office's hard work and investigation. But it also, you know, is really insistent on the principle that law matters and the rule of law matters. And I liked the possible trolling quotation of post Watergate Attorney General at Levy. And I'll just read one quote from it. Quote. In a society that too easily accepts the notion that everything can be manipulated, it is important to make clear that the administration of federal justice seeks to be impartial and fair. And people might find that just like totally depressing, like note or delusional, that's, I think, a fair read of this cover note. I found it actually stirring and somewhat comforting going into this next era, honestly.

[Unknown Speaker]

So this is what I got from the COVID memo. We often talk on the show about how the court is the Sheree Whitfield of housewives. Like, who gonna check me, boo. This Jack Smith memo was the Nene Leakes of the Real Housewives. Because it was like I said what I said, like, you have a white refrigerator. Fuck you. I said what I said.

[Leah Whitman]

Yeah. Kate, you brought up the Levy quote. A quote that has been with me is actually something one of my colleagues wrote. Don Herzog, when he said, no doubt having a rule of law isn't enough for a society to qualify as a good one, but those inclined to denigrate it should contemplate societies without it. End quote.

[Unknown Speaker]

Separately, on Wednesday night, outgoing President Joe Biden delivered his farewell address to the nation in which he warned of a rising class of oligarchs and the looming dangers of an unchecked oligarchy on democratic institutions. To which we say, coincidence.

[Leah Whitman]

You noticed Great.

[Unknown Speaker]

Basically, yeah. Correct.

[K. Shaw]

It was an unexpected turn 10 minutes in or whatever to the. It did.

[Unknown Speaker]

It took a dark, dark turn.

[K. Shaw]

But, you know, it took a dark turn again. Not sure this, you know, three days out is the best time to be beginning to raise alarms. But. But I'm happy that he said it.

[Unknown Speaker]

I fear that this is the kind of address and the content of this address will only become resonant and meaningful over time. And I say fear this because I think what we're going to see is going to be like, we're going to then come back to this and be like, yeah, Joe Biden was exactly right. In the same way we now talk about Eisenhower's farewell address because he identified the military industrial complex. Like, I think in five years, what after, what comes after this, we're going to be talking about this. Like, yeah, that was the moment where.

[K. Shaw]

He, he tried to tell us if we're still podcasting. We'll see. Onward. So, as we've now mentioned a couple of times, this episode is coming out on Inauguration Day and this is still primarily a Supreme Court podcast. And we will stay focused on Article 3 rather than Article 2. But we also did want to highlight the ways in which Article 3 has shaped what is happening with Article 2. Part of what we had flagged as concerning about the next Trump administration in our immediate post election recap episode was the sheer amount of grift and corruption there would likely be. The new administration has not even taken office yet. But the grift has begun. There have been multiple million dollar donations to the President's inaugural fund by tech companies who somehow didn't feel similarly compelled to donate to Biden's inaugural fund. Curious.

[Unknown Speaker]

And then Amazon, whose founder and CEO Jeff Bezos, is reported to be attending the inauguration from a prime See what I did there? I did seat on the viewing platform. He's purchased the rights to make a Melania Trump documentary for the bargain basement price of of $40 million. Now listeners, this is obviously not a bribe. This is obviously a pure business transaction that is based on the obvious market value of the story of one of the most compelling first ladies in the history of the United States. I think only the second first lady to be foreign born points if you know who the first one was. Anyone? Louisa Adams, jqa, the first Nepo baby's wife and First Lady. Anyway, all to say, this is obviously something that viewers have been angling for and it makes perfect business sense and this is not at all a coincidence, even though the timing does seem a little sus.

[Leah Whitman]

So we wanted to briefly explain the links between this grift and others and the Supreme Court. The Court has been on a tear shredding federal anti corruption laws, which Kate has written about in her article partisanship Creep. If you want a longer treatment. But just to take some examples, two terms ago in Percoco versus United States, the court shut down a public corruption prosecution of a private individual who was formerly in government and about to go back into government. The Court reasoned that the courts below and the federal government had too freely said that a private individual could violate anti corruption laws. They are those guaranteeing honest servances. And the porousness of the boundary between the private and the public capacities of the Trumps and their businesses is at the heart of much of the anticipated grift.

[Unknown Speaker]

There was also last term Snyder vs United States, where the Republican justices said that it did not violate laws against kickbacks to tip a state or local official after the fact if there wasn't an explicit quid pro quo agreement in place. And again, the distinction between a tip and a quid pro quo was pretty fine. We were slicing the baloney pretty thin there, as Elena Kagan might say. But, but all to say that these decisions taken together all facilitate a kind of open corruption and seems to have created a climate in which there's likely to be even more grift and graft going on as we head into Trump 2.0. And it's not going to be grift and graft because it's all perfectly legitimate now because the court made it just.

[Leah Whitman]

The way politics works.

[K. Shaw]

Yeah, yeah, yeah. And to be clear, we're talking in general terms, not about specific transactions that would, even under a correct interpretation of federal anti corruption laws, be criminal. But the idea is that the Court has really created this climate in which it is very unlikely that any or at least many of the existing, you know, non gutted federal anti corruption laws will be enforced. So that is going to facilitate an environment in which grift and corruption are prevalent in Washington. And when that happens, make sure to think of and to thank Chief Justice John Roberts.

[Leah Whitman]

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[K. Shaw]

This podcast is supported by Comedy Central's.

[Leah Whitman]

Emmy Award winning series the Daily show.

[K. Shaw]

Hosted tonight by Jon Stewart. This Inauguration Day, it's out with the.

[Unknown Speaker]

Old and in with the old as.

[K. Shaw]

A very familiar president takes his second oath of office. And on Inauguration night, John and the Daily show news team are bringing you.

[Leah Whitman]

Coverage you can swear by Comedy Central's the Daily show complete inauguration coverage tonight.

[K. Shaw]

At 11 on Comedy Central and streaming tomorrow on Paramount.

[Unknown Speaker]

Now on to the argument recaps. In our coverage of Project 2025, as well as in some recent judicial confirmation hearings, we highlighted just how obsessed certain segments of the Republican Party are with pornography. Project 2025 proposed banning pornography and adopting Clarence Thomas's view, at least his current view, that porn is not protected by the First Amendment. Josh Hawley insisted on using basically all of his speaking time at Justice Ketanji Brown Jackson's confirmation hearings to talk about pornography, which is also a big focus of his recent book Manhood, which we reviewed in the Michigan Law Review. And the Republican Supreme Court Justices, courtesy of the great state of Texas recently got an opportunity to express their concerns about pornography during the argument in Freedom Speech Coalition versus Paxton. And weirdly, several of them sounded an awful lot like Project 2025 slash. Josh Hawley let me just say that.

[K. Shaw]

This was the most entertaining Supreme Court argument in quite some time. I mean, I think probably objectively it was just like hilarious. But also they have not taken a lot of really interesting cases this fall and so it really stood out and it went on for a long time. But some, some of these long arguments, you know, sort of your attention can wane. This one really kept my attention.

[Unknown Speaker]

It's the articles Kate.

[K. Shaw]

Gore Vidal can't stop reading him. Anyway, here's what the case is about. So at issue is the constitutionality of a Texas statute that imposes certain obligations on commercial websites when at least a third of what they publish is sexual material that is harmful to minors. The statute requires covered websites to verify that an individual who's attempting to access the materials is 18 years of age or older. The act permits various forms of verification, including digital identification, government issued identification, and other commercially reasonable methods, though the precise methods that are permissible is actually kind of unclear. And the question is whether the Texas verification requirement is subject to strict scrutiny, which is not only the name of our podcast, but also usually the standard of review that is applicable to content based restrictions applicable to adults, which this law is. But naturally the Fifth Circuit ignored that that well settled principle and said, no, we're going to use rational basis review because porn.

[Leah Whitman]

So the Supreme Court has allowed states to restrict obscene material as to adults and non obscene material as to minors, but it has closely scrutinized and subjected to strict scrutiny laws that burden adults access to non obscene materials, even when the laws are designed to protect minors. And just to be clear, the categories of sexually explicit and indecent and even pornographic are not necessarily synonymous with obscene. Obscene is a narrow set of material that can be regulated that lack constitutional protection. But again, porn is not synonymous with obscenity. So several Supreme Court justices seemed interested in maybe jettisoning those precedents entirely, maybe because stare decisis is for suckers, maybe it's a subtle dig at this podcast, but really it did seem to be because porn. Several justices, the chief, Alito Barrett Kavanaugh, went on and on about how porn has gotten worse. It's become more available because of technology.

[K. Shaw]

Not like lower quality. Worse. They were not quite going there.

[Leah Whitman]

You could read it that way. More people, you know, look at it and are addicted to it and all of the harms that may flow from the consumption of pornography. And several of their questions proceeded along the lines of, well, sure, our cases say strict scrutiny applies to content based restrictions, including restrictions on porn, but maybe we should just ignore all of those cases because of changes in technology.

[Unknown Speaker]

I think that view really came across in Justice Barrett Barrett's questioning of Schaeffer, who was the lawyer arguing on behalf of the Free Speech Coalition. Again, it's worth sort of just highlighting where some of the justices are coming from. Justice Barrett is one of the few mothers on the court. The other is obviously Justice Katanji Brown Jackson. But what seemed to come across in her question, and she asked a lot of questions about the applicability of strict scrutiny, and it seemed to suggest that as the mother of teenagers, she's pretty consumed, maybe even preoccupied with the challenge that many parents face of trying to regulate her children's consumption of online content, and that this is especially challenging given the availability of pornography online. And so here's a clip of her exchange with the petitioner's lawyer.

[Leah Whitman]

Well, I mean, let's see. In. In Ashcroft 2, the court, you know, expressed anxiety about the fact that technology moves so fast that the five years between the district court findings in that case and the case being at the Supreme Court, you know, that technology may have moved beyond the record at that point. It's been 20 years since Ashcroft, the iPhone was introduced in 2007. And Ashcroft was decided in 2004. I mean, kids can get online porn through gaming systems, tablets, phones, computers. Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with.

[Unknown Speaker]

So.

[Leah Whitman]

And I think that the explosion of addiction to online porn has shown that content filtering isn't working.

[Unknown Speaker]

I think the precedents are very clear here. But I also think that this kind of common sense approach to the regulation of pornography with regard to the First Amendment is going to be really appealing to some members of the Court and maybe even with many members of the public. David French had an op ed in the New York Times this week that talked about, like, you know, what's up? I'm agreeing with Ken Paxton. This is weird. I think the real question here, and I wish that the lawyer for the petitioners had made more of this, isn't about what these precedents necessarily mean in the context of pornography. But if you loosen up strict scrutiny here because it is pornography and because you are concerned about online access reminders, what then does that mean for First Amendment jurisprudence in other contexts where the speech might not necessarily be objectionable to the public, but could still be objectionable to someone like Ken Paxton? So I mean, the question here to me isn't like, how do you regulate pornography and whether strict scrutiny should apply. The question is, if you relax strict scrutiny here because it is pornography, what then will you be able to regulate going forward, irrespective of the First Amendment? And I'm not sure that came out as sharply as it could have.

[Leah Whitman]

Well, so I actually think Justice Kagan pretty pointedly framed that issue as we'll get to later on. But, you know, back to this idea of the Court's cases pretty clearly say strict scrutiny applies when you are restricting pornographic material as to adults. Justice Sotomayor was not impressed with her colleague's suggestion that the Court should just abandon its cases because porn slash technological changes, as you can hear here. So the answer to Justice Gorsuch is let's treat every medium under the scrutiny.

[Unknown Speaker]

That applies to the people affected, correct? Yes, Justice Sotomayor. So that's strict scrutiny.

[Melissa Murray]

That is strict scrutiny. For us to apply anything else would.

[Leah Whitman]

Be overturning at least 5 precedent.

[K. Shaw]

That's my count as well.

[Leah Whitman]

There are a host of cases. I'm not going to rattle off all five. I'll just note two. You know, Sable, for example, involved a federal law that prohibited dial a porn telephone services containing constitutionally protected material for adults, but that were inappropriate for minors. And strict scrutiny Applied even though the government said it was trying to protect minors. You know, more recently there was Ashcroft, where a federal law prohibited online transmission of content that's obscene for minors absent age verification. The court applied strict scrutiny. And again, those are just two of the examples. Yeah.

[K. Shaw]

And if I can just say something to go back to the Justice Barrett question for a minute, there's just like a, a real question, I thought that was called by the case, not just what Melissa, you were saying, which I totally agree with, that this case is about much more than just porn. It's about the First Amendment, like much more broadly. But also are they doing law here or no? Because a lot of the questions were like, eh, it seems like maybe this is fine because it's really hard otherwise to use filtering or use blocking software. So I mean, that's a fine conversation for the Texas legislature or the US Congress to be having, you know, with a constitutional sort of backdrop. But the backdrop part was what I wasn't sure. It kept falling out of the conversation as they were talking about, like, how to deal with this problem of porn, which is just not something that judges are supposed to be doing. And, and just to be fair to them, if you're in strict scrutiny land, it is actually reasonable to ask about, you know, what the government interest is and then what the different ways government might use or adopt to pursue that interest. So it's not like it's never reasonable for them to ask questions, but the register in which they were asking them was really the register of pure policy and not law, as far as I can tell.

[Unknown Speaker]

Can I say, like, I think if you read this argument alongside their recent decision in the TikTok case, I think you get a better sense of what they understand their role to be in this scenario. So if you recall when we did that emergency episode on TikTok, we highlighted the Frankfurter quote that the court identified in and used in the TikTok case. Like this whole idea, like, like we have to sort of think about not embarrassing the future. We have to think about how to update certain rules in light of changes in technology. I don't think that they think this question is one for the Texas legislature or one that should be hashed out in the political process. I think they understand themselves to be in a situation where technology has changed. They have a set of existing rules, and it's their duty to figure out whether the rules should stay as they are and be just applied as they would be to this new technology or if they should be modified somewhat. And you Know, the whole discussion that you just identified, Kate, about, you know, should there be content regulation? There are all of these different ways that the government might achieve its interests without unduly burdening speech. They were talking about this, and Justice Barrett kept going on like, content regulation is just really hard. It doesn't work. We have an IT department here at the Supreme Court that doesn't work. I think they understand themselves to be living this problem right now, and they have a role that. That is perhaps complementary to the legislature, but they get to say how the existing rules should be applied given changing circumstances. And I think that's just like, that's just how they're thinking.

[K. Shaw]

Dose of pragmatism is, I think, honestly, generally a good thing. But, like, if this court could be trusted to exercise a degree of humility, it would be one thing, but because it is not, I am just very nervous about them legislating from the bench to like, you know, recycle an old phrase based on their idiosyncratic experiences and sort of dressing it up as enduring legal principle. But anyway, back to the cases that Leah was just, just taking through. There was one Justice, Sam Alito, who wanted to fixate on not those cases that Justice Sotomayor mentioned, but another case called Ginsburg, and he offered some idiosyncratic theories about what that case held. So Ginsburg upheld the conviction for selling what the opinion actually called, quote, a girly magazine. That's in the opinion, although it's in quotes in the opinion, to a minor. The case said that when states restrict miners access to indecent materials that aren't obscene for adults, the laws are subject to rational basis review and not subject to strict scrutiny. But that's really just about restricting sales to kids. And Sam said, ha. But the law also affected adults because the shopkeeper who was challenging his conviction was an adult. And then the briefs in the case talked about burdens on adults. So Sam says, ergo, we can apply rational basis to this Texas law.

[Unknown Speaker]

The problem, of course, is that, as Justice Sotomayor and every other justice who apparently is literate and reads on a regular basis pointed out in the Ginsburg opinion, unlike the briefs that were filed in the case, the opinion only resolves the question of what standard of review is applicable when a statute is challenged on the ground that it restricts minors access to pornography. So, in other words, Ginsburg, the opinion never specifically addressed what should happen when the law burdens adults. And Sam Alito was basically in rare form. That was just sort of a warm up for him. He was in rare form during this argument, as the opening to this episode suggested. So let's replay this clip and this exchange between Alito and Mr. Schaefer, who represented the coalition.

[Melissa Murray]

So one of the parties here is. Is the owner of pornhub, right?

[Leah Whitman]

Yes.

[Melissa Murray]

And what percentage of the material on that is not obscene as to children?

[K. Shaw]

Well, your honors, I. If we're talking about the youngest minors, I would agree that most of it is. And that is how we read.

[Melissa Murray]

Is it like the old Playboy magazine? You have essays there by the modern day equivalent of Gore Vidal and William F. Buckley, Jr. Not in that sense.

[Leah Whitman]

This is yet another great example of what it means for a workplace to have masculine energy. I'm pretty sure. I also frankly loved the lawyer's response. Not in that sense. Like, what do you say to that question? I thought that was perfection. I don't know. Do you all have others you want to add to that clip? Because there are more related clips that I want to add here.

[K. Shaw]

Yes. Okay. There are two that I thought we needed to throw in. One was at a certain point, he seemed to be seeking more information on other porn sites. Like he knew pornhub, but he wanted to know what the other ones were so he could like have those names down.

[Melissa Murray]

All right, let's go down to. What's the second most popular porn site.

[K. Shaw]

Your honor, I don't. I don't have the.

[Leah Whitman]

You don't know.

[Melissa Murray]

You represent these people.

[Leah Whitman]

A part of me wondered, is he hoping to get a recommendation for flag related porn?

[K. Shaw]

I mean, I'm sure it's out there. People are into everything.

[Unknown Speaker]

He had the same kind of energy he had in 303 creative, where he was just like all black Santa. Ashley Madison, like, you're just like, what are you. What, what do you do on the weekends? Like, what are your hobbies?

[Leah Whitman]

Right. Remember in the 303 creative case, which was about a wedding website designer, he brought up Ashley Madison, and I think this entire co. You forgot that case.

[Unknown Speaker]

I remembered on my brain.

[K. Shaw]

I didn't remember. It was in the 303.

[Leah Whitman]

It is raising some real.

[Unknown Speaker]

And then Black Santa.

[K. Shaw]

No black Santa, obviously.

[Leah Whitman]

Well, yes, black Santa. I mean, that was just to refresh our listeners. Him throwing out this absolutely outlandish, offensive hypothetical about a black, black Santa being forced to take photographs with kids in KKK costumes. I mean, that is, as Melissa notes, the energy he brought to this argument. And should we offer another clip in this register?

[K. Shaw]

There's one.

[Unknown Speaker]

Why not? Greatest hits.

[Melissa Murray]

Just to clarify, with respect to point one. So if a particular website has some hardcore or pornography that is obscene as to minors and then it has, you know, videos of somebody reading Lady Chatterley's Lover or something like that, does can the latter be segregated at this point?

[Leah Whitman]

I want to reiterate the apology from up top. You know, we did warn you this episode has a lot of Samolito and porn. A grouping of words you never want to hear in terms of what he's.

[K. Shaw]

Fishing for in some of these questions. Not the sort of flag content. But I was wondering whether this was like him looking for a recommendation for some dramatic readings by Rege Jean Page, who for more recent listeners, was our intern in early seasons of the show.

[Leah Whitman]

Or so we claim.

[K. Shaw]

Not actually.

[Leah Whitman]

So we did want to cover some of the other justices interventions in this case. Some serious and interesting, some not. I'll start with another one of Brett Kavanaugh's contributions. You can guess what category that falls into. So Brett Kavanaugh wanted everyone to know that Europe uses age verification systems for indecent material. So therefore, obviously it's constitutional foreign law. Obviously very appealing source of law to him. Also not sure he knows this, but Europe has a massively better system of data privacy protection. So those laws are less burdensome. But no matter.

[Unknown Speaker]

It was like in the Dobbs oral argument where the Chief justice noted that in Europe and other systems, the timing for terminating your pregnancy is much earlier than in the US And Julie Rickleman had to remind him. And they also have socialized healthcare, so this isn't like super burdensome for a lot of different reasons.

[Leah Whitman]

Yeah.

[K. Shaw]

So surprising that they would just like fixate on one thing and yank it totally out of context. I think that's the only thing that matters.

[Leah Whitman]

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[Melissa Murray]

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[K. Shaw]

You'Ll get great service that is easy and reliable, all at the touch of a button. Get a quote today. Restrictions apply. Okay, so let's turn to some of the other justices. Justice Kagan had some really useful interventions which seem to very pointedly frame the calculus and the consider considerations in the case. Both harken back to things we were just talking about. One was really about age verification systems and whether they're better and more effective and also whether filtering technology is better. And still another was about kind of how easy or difficult it is to bypass or evade filtering technology. And then another one, which really seemed to capture the issues in the case, asked Deputy Solicitor General Brian Fletcher, who was arguing in support of the group that was challenging the law, how to think about the risks of what the Court might say, including in other domains.

[Unknown Speaker]

So on the one hand, Justice Kagan pointed out that the Court could say here that strict scrutiny applies. But because many people think that the state must and should have ways of restricting access to minors, courts might be applying a more watered down or tepid version of strict scrutiny. And that might in turn affect how the strict scrutiny standard is applied in other contexts where it should be more robust. And you know, this is sort of what I was getting at and I wish that that the lawyer Schaeffer for the coalition had made this point. But she really kind of stepped in and lawyered some of his stuff for him.

[Leah Whitman]

She did, and it seemed to like register with her colleagues. She did so very effectively.

[Unknown Speaker]

She did point out as well that if the Court said intermediate scrutiny applied, which is a less rigorous form of scrutiny than strict scrutiny, then the Court might be opening the gates to a lower level of scrutiny in other content based restrictions other than restrictions on porn for minors and that could have real repercussions for the development of First Amendment jurisprudence. And so she basically asked, which one is worse here? And that actually might be the question that the court decides to resolve in this case.

[Leah Whitman]

What didn't seem to be on the table, naturally, is what the Fifth Circuit did, which is to apply rational basis review, the lowest level.

[Unknown Speaker]

No one seemed to be talking about.

[Leah Whitman]

Rational basis or the lowest level of scrutiny. You know, listeners, nothing the fifth Circuit says or does is right on the law is a good rule of thumb to generally have. You know, a listener asked, why does it matter what standard of review applies? It matters because it affects the degree to which courts examine the justifications for the law, whether the law advances those aims and whether the law has less restrictive, that is, you know, less burdensome mechanisms, or even if the aims are worthy. Right. How important the aims are, justifications are. It just. It makes it more difficult to uphold the law if you apply a more rigorous form of scrutiny. So all of this, that is the options on the table versus what the 5th Circuit did, led to Justice Jackson highlighting a straightforward way to resolve the case that I thought was kind of amusing.

[Unknown Speaker]

It's because it seems to me that you've asked us to apply strict scrutiny in a circumstance in which it would have been, and easy, as the government suggests, to just say, wrong standard 5th Circuit and send it back. There was also an excruciating moment in the Texas SG's argument that came about from Justice Jackson's questioning. So we're not going to play that clip here because it's very long. But Justice Jackson simply asked the Texas SG about what the court's decision in Packingham versus North Carolina meant for this case. And packing him is a First Amendment case about social media and technology where the court invalidated a state law that made it a felony for a registered sex offender to access a social networking site that permitted minor children to be on the site. So this case would seem to have a lot of things to say about children and technology and social media and the Internet and the First Amendment. And the Texas SG responded that he hadn't read Packingham. And I have to say, this was an easy mistake to make because the case was not cited in the briefs for this case, but it was on point. But this is kind of an understandable mistake to make. And to be fair to Justice Jackson, she was very gracious about it and explained it and then allowed him to respond. But did you not cringe for him?

[K. Shaw]

It was very painful, I have to say. I respected the decision to just say, like, you know, I did not read that before today. I read everything. As opposed to like trying to bullshit your way through the exchange. Like, oh, yeah, I don't, I'm not sure it really speaks to this qu. You know, he didn't try. He was just forthright. And I at least appreciated that. But yes, I definitely did cringe. All right, moving on. The court also heard argument in an important sentencing case, Hewitt versus United States. @ issue in Hewitt is the proper interpretation of the First Step Act. Hewitt concerns a practice known as stacking. So a Federal law, section 924C prohibits using or carrying a firearm in connection with certain crimes. Before the First Step act, prosecutors used to be able to to stack 924C convictions in pretty outlandish ways. So let's say you were holding a gun While you sold three bags of drugs within a 20 minute period, one, and then the other, and then the other. The prosecutors might say those were three separate 924C crimes. And the law used to say that judges had to stack those sentences such that if you had one 924C conviction, you'd get five years, and then if you had a second, you'd get 20 years on top of that, a third, it's an additional 20 years. So this resulted in just savagely long sentences.

[Unknown Speaker]

And the First Step act curbed that practice. And it applied the new, more reasonable rules not only to offenses committed after the act was passed, but also, to quote any offense committed before the date of enactment if a sentence for the offense has not been imposed as of such a date, end quote. The question here is what it means if a sentence has not yet been imposed. Does it apply only to a defendant who is originally sentenced after the First Step act, or does it include a defendant who is originally sentenced before, before the First Step act, but then their sentence was vacated such that they had to be re sentenced to a new term of imprisonment after the First Step Act's enactment.

[Leah Whitman]

So that issue had divided the lower courts. As a court of appeals, Judge Amy Barrett had said the act did not apply to resentencings, whereas Judge Bebus on the Third Circuit, who was a former full time criminal law and criminal procedure professor and actually is still teaching at Penn, where he's, Kate's colleague, had said that it did. I obviously think he's right. Right. And so does the federal government who agrees that the law applies to resentencing. So the Supreme Court appointed an amicus to argue it does not. And of course, the Court went with their usual type, a white male, former SCOTUS clerk.

[K. Shaw]

Yeah, they do have a type here, Hu. It comes down to whether you think a sentence imposed refers to a historical event or an operative sentence. The federal government and the defendant emphasize that the law is written in the present perfect tense, which they said connotes an ongoing condition. That is an operative sentence.

[Unknown Speaker]

And this led Sam Alito to make this remark.

[Melissa Murray]

Well, it's always fun to talk about grammar and usage.

[Leah Whitman]

Not as much fun as porn, I guess. What a textualist, that guy.

[Unknown Speaker]

The breakdown between the justices seemed to be that Justice Barrett, Kavanaugh, Alito, and maybe, possibly, probably the Chief justice were with the court appointed amicus here, and Justices Sotomayor, Gorski, and Jackson were all with the defendant. It's unclear where Justice Thomas was on this. He maybe wanted to pursue a third theory about whether a sentence was vacated before or after the act. And, you know, I guess we'll see where that leads. And that means the real question is, where is Justice Kagan on all of this?

[Leah Whitman]

She seemed to be kind of on the fence. She did bring up what she described as a somewhat unique amicus brief filed by Senators Durbin, Grassley, Booker and Lee, who were the sponsors of the actual act. And as she observed, not guys who link arms very often. And their brief pretty emphatically said they understood the text and purpose and background rule to be that the act would apply to resentencings. There were also other pieces of evidence, some of which she invoked, that favor the defendant and federal government's position. One was pressed most effectively by America's public defender, Justice Ketanji Brown Jackson. She explained, the normal rule is laws don't apply to people who committed an offense before the law was passed, but were sentenced after. But Congress had changed that rule here. And in modifying the usual rules, Congress expressed that it wants the law to apply to sentencings, which include resentencings. And she pointed out applying the law to resentencing wouldn't actually disrupt any finality interest because those defendants have to be resentenced anyway. The other key point, which the federal government seemed to distance itself from at some point, strangely, is the idea, a principle of sentencing law, that a sentence that was imposed but has been vacated is not a sentence at all. It is voice void. So we'll see what these guys are going to do. As RuPaul says, don't it up. They probably will.

[Unknown Speaker]

The court also heard a federal criminal case, Thompson vs United States, about whether 18 USC Section 1014, which prohibits making a false statement for the purpose of influencing certain financial institutions and agencies prohibits making a misleading statement. At least that's what the court thought the case was about when it granted certiorari. Because it seems the court once again fail to realize that a case didn't actually present the question that the Justices were trying to decide.

[K. Shaw]

So here are the facts of the case. Patrick Thompson sought to refinance mortgages on his home. He borrowed 110,000 from Washington Federal. He later borrowed another 20,000 two years later and then 89,000 three years later. Washington Federal subsequently failed and was taken over by the fdic, the Federal Deposit Insurance Corporation. And in a conversation with the loan servicer, after he received notice of what he owed, Thompson expressed confusion about the amounts. Looking at the balance, which was for over 200,000, he said, I borrowed a hundred thousand, and I mean I borrowed the money, I owe the money, but I borrowed a hundred thou. 110. I think it was 110,000. I want to quickly resolve all this and you know what I owe. He had a similar conversation with FDIC contractors in which Thompson talked again about the $110,000 loan.

[Leah Whitman]

So Thompson was charged with false statements to both FDIC and Planet Home Lending on the theory that Talking about the $110,000 loan implied that that was the extent of it. And the justices seemed to think that he made a false, not a misleading statement when he did so because his statement conveyed, signaled, or meant that he owed only 110,000, not the full 200,000 plus. Even Justices Jackson and Sotomayor, who are often the most open to arguments by criminal defendants, raise that possibility. And there were debates in the argument about what exactly is the difference between false and misleading, or what it might mean for a statement to be false in context. Or did the court below say people could be convicted for misleading statements? But at the end of the day, it seemed that most Justices thought the defendant made a false statement. And the government's lawyer, Carolyn Flynn Go Blue seemed to make headway in convincing the Justices that the jury was instructed that they should convict if they found the statement false. False.

[Unknown Speaker]

The court also heard argument in Watsig versus Halliburton Energy Services. And this was a case about whether a voluntary dismissal without prejudice under Federal Rule of Civil Procedure 41 is a final judgment order or proceedings under Federal Rule of Civil Procedure 60B, such that a court can relieve a party or its legal representative from said final judgment order or proceedings.

[Leah Whitman]

Last but not least was a case where Friend of the Pod Sam Alito also really showed out and that is an important anti discrimination case. Case Stanley vs City of Sanford, Florida. This case involves a firefighter, Karen Stanley, who was still working when her employer, the city, changed its benefit plan from one that provided health benefit subsidies to disability retirees until age 65 to a plan that terminated subsidies two years after retirement. While she was on the job, Stanley developed Parkinson's and decided to retire. And two years after she retired, the city discontinued her health insurance insurance.

[K. Shaw]

So Stanley sued, arguing that the new policy and the policy change discriminate against her on the basis of disability. The United States agrees and is supporting her. The case is a little strange in that it seems the geniuses on the court once again didn't quite realize they were taking a case that didn't necessarily present the question that they were interested in answering. They thought they were taking the case to answer whether a former employee can sue under the ADA if an employer alters post employment benefits in a discriminatory way after the employee retires. Here, however, the employer altered the benefits package while Stanley was still employed. That matters because the ADA prohibits employers from discriminating against a qualified individual who is someone who can perform the essential functions of employment that such individual holds or desires.

[Leah Whitman]

At the time of the allegedly discriminatory policy change. Stanley was a qualified individual. She was an employee at the time of the alleged discrimination, though she didn't feel the effects until after. Deepak Gupta, who was representing Stanley, did a great job hammering this. But the harder question would be what happens if an employer changes post employment benefits on a discriminatory basis for someone who is already a retiree?

[K. Shaw]

So part of the argument here was devoted to, well, should we just resolve the case on narrower grounds? As Justice Kagan pointed out, it quote, seems a little bit odd to decide the bigger broader question when as to this particular person, it's academic. The justices also noodled over whether the narrower ground was technically preserved in the courts below. It probably was, but that was a topic of discussion.

[Unknown Speaker]

We wanted to highlight one particularly cringe worthy rage inducing moment from our friend Trito. We'll play the clip and then we'll explain why it is really something, I.

[Melissa Murray]

Think that all of what you said makes sense. There was a period during her employment when she had a claim for disability discrimination. The period between the onset of her disability and her retirement. At least toward the end of that period she was agree. I think it was predictable that she might face this situation situation after she retired. And so there she was aggrieved And I think there was sufficient injury, a sufficient threat of injury, in fact, to give her article 3 standing. But that doesn't get you home because she didn't file on that claim within the prescribed time. So what you need is the Lilly Ledbetter act to save you. And the outcome would depend on how you read the Lilly Ledbetter Act. It could be read as sort of an extension of the statute of limitations which would allow her to pursue that claim at any point in the future when she is not getting the benefits to which she thinks she's entitled. That's one way to read it. But another way to read it, which does have support in the statutory language is that the act does not extend extend to the statute of limitations. It says that an unlawful employment practice occurs when an individual is affected by application of a discriminatory compensation decision or other practice.

[Leah Whitman]

So record scratch, what is going on here? The name Lilly Ledbetter should sound familiar. She was the plaintiff in a major anti discrimination case that was about whether she could sue because her present day salary was substantially lower than her male cohorts due to discriminatory practices from decades ago which had continued to infect her salary. Guess who wrote the opinion saying she could not sue for said discrimination.

[K. Shaw]

I know, I know.

[Leah Whitman]

Sam Alito. I know you know that. That was for our listeners. Now guess who disagreed with Sam Alito about whether people like Lilly Ledbetter could sue Congress, who passed the Lilly Ledbetter Act. And guess who's now trying to undermine the Lilly Ledbetter act by giving it a crown cramped, crabbed interpretation such that it doesn't benefit victims of discrimination. Sam Alito.

[Unknown Speaker]

So last week we played a Kagan throwback clip. And there's another Kagan throwback that seems really on point for this one. So this clip is from Jarkesy versus Sec.

[K. Shaw]

Nobody has had the, you know, chutzpah, to quote my people.

[Unknown Speaker]

That's real chutzpah. Sam Alito has chutzpah. He really does. No fragonia and chutzpah. Plenty of put it on a flag.

[K. Shaw]

Yep.

[Leah Whitman]

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[Melissa Murray]

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[K. Shaw]

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[Melissa Murray]

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[K. Shaw]

All right, so let's move on to the opinions. We got two unanimous opinions we're going to briefly mention. The first was in EMD Sales versus Carrera, and the court concluded that a preponderance of the evidence standard applies when employers are seeking an exemption from the Fair Labor Standards Act. Justice Kavanaugh wrote that opinion and his friend Lisa Blatt, who testified in favor of his confirmation, prevailed. So nice for her. The second opinion was in Royal Canaan vs Westchlager. There the court held that when a plaintiff, after removing a case to federal court, amends their complaint to delete the federal claim that enabled the removal, the federal court loses supplemental jurisdiction over state claims and the case has to be remanded. Justice Kagan wrote that opinion.

[Leah Whitman]

And now for some quick additional court culture. So as we were recording this episode, the fifth Circuit issued its much anticipated DACA Deferred Action for Childhood Arrivals decision. Unfortunately, the decision is largely as we predicted. A majority of the 5th Circuit concluded that at least portions of the DACA program, which protects from deportation people who are brought to the United States as children and allows them to seek authorization to work, are illegal. So it concluded that the policy can forbear from enforcing immigration law. As to DACA recipients, that is a national announced that the administration will not prioritize their removal, but it concluded that the benefits portions of the program, that is the authorization to work, eligibility for Social Security, that those portions are illegal. Now, the court did limit its ruling to Texas, the lead plaintiff in the case. Not entirely clear what that means in this context. And it also put the decision on hold, that is DACA recipients won't immediately lose their work authorization. But it does tee that issue up and honestly, potentially the entire validity of DACA for the Supreme Court, which is terrifying because the last time DACA made its way to the Supreme Court, that was when the Trump 1.0 administration attempted to end the program by a 54 decision, with Chief Justice Roberts joining the then four Democratic appointees. The court invalidated that rescission. But the dissenters in that case, Justices Thomas Alito, Kavanaugh and Gorsuch, pretty strongly signaled their view that DACA is illegal. And now that Justice Barrett has replaced Justice Ginsburg, there's a real possibility the Supreme Court could be on the verge of ending the DACA program.

[Unknown Speaker]

All right, some more uplifting news also from 5th Circuit adjacent land. Judge Matthew Kaczmarek, also known as America's next top research scientist, is apparently really jealous us that Eileen Cannon, America's next top SCOTUS judge, is getting all of the attention. And so he took that personally because no one puts Matthew Kaczmarek in a corner. I wonder if he knows that Dirty Dancing is entirely catalyzed by the need for an illegal abortion. Probably not. Anyway, so Judge Kaczmarek went ahead and issued a ridonculous ruling in which he allowed Idaho, Kansas and Missouri to continue to press the lawsuit lawsuit challenging mifepristone, one of the drugs used in the medication abortion protocol that keeps the suit alive because remember, the Supreme Court said only that the private plaintiffs, the doctors and dentists who didn't want to prescribe or use mifepristone didn't have standing. They didn't say on the merits that the challenges to medication abortion and the FDA's regulation of medication abortion were baseless. So Kacmaric's ruling keeps this case alive after the plaintiffs dismissed their case.

[K. Shaw]

And importantly, it puts the defense of medication abortion in the hands of the Trump administration. At best, this means that John Sauer, who's the Solicitor General designate, will be writing the briefs to defend it. At worst, it means the administration could go ahead and agree and team up with the states to press the position that abortion medication was wrongfully approved or should have additional restrictions placed on it. Now, that wouldn't mean the case would end there. The drug manufacturers who had intervened earlier in the last round of litigation could still defend against the lawsuit. But the point is that by prolonging the case, Kaczmarek and the Supreme Court have created the possibility of jeopardizing medication abortion access. After the election, during the Trump administration, and actually very, very early in the Trump administration, Kazmark also allowed the suit to continue in his court even though none of the new plaintiffs are the state of Texas. I actually don't understand why Texas isn't in on the action, but it is other anti abortion states, not Texas, that were the subject of this order. And I mean, Kacmerk, like Cannon, contains multitudes and, you know, I worry he's just getting started. Wait, Leah, were you gonna say, do you have a theory? Would you know why Texas is not in the same.

[Leah Whitman]

I don't know why Texas is not. I was just going to say that Ken Paxton is experimenting with other vicious anti abortion litigation as we will touch on in a second. So, you know, limited number of cases in which he can be on the lead on, probably.

[K. Shaw]

Yeah. And if you can have other states somehow with no real business being in Texas, convince Kacmark to let you proceed, then you may as well. No harm, no foul tensions elsewhere. Yeah, probably not.

[Leah Whitman]

So, other pieces of news we wanted to note, we got some new grants. The Supreme Court decided that it wasn't set to do enough damage this term. So they added a few other doozies, slapping October term 2024 and saying we can fit a few more bad boys in here. So let's go through some of the cases the court added.

[Unknown Speaker]

First up is an Affordable Care act case. Braidwood. Remember the Affordable Care Act? Remember how it narrowly survived in the first Trump administration? Well, guess what, it's back. And this time health insurance coverage for preventative services could be taken away. The case is a challenge to the structure of the Preventive Services Task Force. This is the entity responsible for designating what preventative services health insurers must cover under the aca. And the case has been brought by an employer who objects to having to cover prep, which is the pre exposure prophylaxis drugs which minimize the risk of contracting hiv. The employer also objects to covering contraception, another preventative service that is covered under the aca. If the employer is successful here, this would disable the mechanisms by which insurers are told what preventative services must be covered. And again, that has real repercussions for a range of medication services, including not just prep and contraception, but other kinds of preventative services that many Americans need. So yikes.

[K. Shaw]

Yep, they did deny a cross petition raising a non delegation doctrine question. So I guess, you know, small mercies. But they did take up a case involving a challenge to a state tax exemption, which is a religious charity, arguing that it is constitutionally entitled to a state tax exemption because we are a Christian nation. That's not technically what they argue, but kind of is. That's a reference to an old Supreme Court case, the Church of the Holy Trinity. One more case they took up a case about who gets to sue the EPA because everyone is clamoring to do so now. And one more, a case about whether doctors and patients can challenge a state's decision to defund Planned Parenthood by kicking Planned Parenthood out of the Medicaid program. This case will essentially decide whether states can kick Planned Parenthood out of the Medicaid program without repercussions, because the other possible enforcement mechanism to challenge the decision to do so would be the federal government withdrawing Medicaid funds. And we all know the Trump administration isn't going to be out there safeguarding women's health care. So this challenge is the only way that states are going to be prevented from essentially kicking Planned Parenthood out and making it impossible for it to do its work in states where it's desperately needed. Excellent.

[Leah Whitman]

And on Friday, the court agreed to take up a parental rights case, Mahmood vs. Taylor. This case is about whether it violates parents religious rights when schools instruct their children on gender and sexuality in ways that contravenience the parents religious beliefs. So it's going to be something for the Supreme Court to uphold that parental rights claim at the same time that it probably will uphold bans on gender affirming care for minors, where it is admittedly not directly addressing a parental rights claim, but still.

[Unknown Speaker]

Now, we've mentioned Ken Paxton a few times, but I wanted to call back a development that occurred a little earlier this year that we haven't had time to get to. Texas Attorney General Ken Paxton has been doing the most recently, not just with this pornography case that we recently discussed here, but also with regard to abortion. So he's the same guy who personally threatened hospitals with liability if they provided a medically necessary abortion to Kate Cox. This time he is again pressing this anti abortion stance by initiating a lawsuit against a New York doctor who Ken Paxton alleges helped a Texas woman obtain an abortion via medication abortion. The case is seen as a test case for how much anti abortion states can extend their laws beyond their own borders and into blue states. And it's also a test to see exactly what blue state shield laws can do. And a side note here is that this abortion came to light because the father of the fetus reported it to the authorities. So ladies always choose a bear.

[Leah Whitman]

In fact, Carolyn Kitchener at the Washington Post just released a story about how anti abortion groups are pushing for men to basically report on their girlfriends and wives and partners. So this is part of a concerted strategy. We also wanted to briefly note, I know this episode is long, but a major figure in the Supreme Court world, Supreme Court Bar Tom Goldstein, who was the founder of SCOTUS blog, was recently indicted on multiple counts of tax fraud. The indictment alleges he used money from his firm to pay off personal and gambling debt debts and also women that he was engaged in personal relationships with and also that he didn't report income from gambling. Again, a major figure in the Supreme Court world. I think a pretty shocking indictment that we at least wanted to acknowledge.

[K. Shaw]

A grab bag of a few other things we wanted to mention before we wrapped. As they were headed out the door, Senate Democrats released a report titled An Investigation of the Ethics Challenge at the Supreme Court. You know, the title could have been tweaked, I think, and improved dramatically if it had read the ethics challenge that is the Supreme Court or the ethics challenge of the Supreme Court. But it's close.

[Unknown Speaker]

Good at it.

[K. Shaw]

Yeah, they didn't ask. So report documents the vast largess bestowed on Clarence Thomas, noting that, quote, the number, value and extravagance of the gifts accepted by Justice Thomas have no comparison. In modern American history. This includes 20 rides in Harlan Crow's private jets. 7 times Thomas or Thomas's family stayed at a particular Crow resort, Camp Topridge. So much of this is known, but it's still useful to have it in one place.

[Unknown Speaker]

The report also concludes that friend of the pod Samuel Alito created the appearance of impropriety when he failed to recuse in some cases. It also places some blame on Chief Justice John Roberts, noting that Roberts, quote, refused to appear before the Senate committee and rather than investigate the conduct consuming the court produced a non binding statement on ethics principles and practices of the justices purported to follow. End quote. All true, I guess. But fear not, America. If you really care about judicial ethics and penalizing judges for doing bad things, you should take solace on the fact that some federal judges are in fact being disciplined for criticizing Justice Sam Alito. An investigation concluded that a district court judge engaged in misconduct when he published an essay in the New York Times arguing, arguing that the display of flags associated with the Stop the Steal movement at House Alito breach judicial ethics rules. Again, the problem here wasn't the flag. The problem was writing about the flags. That was the impropriety. So just, just so you're clear, how.

[Leah Whitman]

About some good court culture? Like good news, which we actually have some.

[Unknown Speaker]

So it seems that some folks are catching on to the Supreme Court. A Gallup poll from the end of last year found that that public confidence in the American legal system has plunged over the last four years, putting the United States in the company of countries like Venezuela, Syria and Myanmar. And between 2020 and 2024, confidence in the judicial system dropped by a staggering 24 percentage points to 35%. Wow.

[Leah Whitman]

I am still taking this as a send strict scrutiny to more friends challenge. But we did want to recognize John Roberts and company for some well deserved recognition they received, namely a Golden Duke Award. John Roberts and the conservative justices won the Golden Duke Award for best scandal General interest where they beat out Donald Trump, Senator Bob Menendez and the billionaire owners of the Washington Post and LA Times. Congratulations, sirs. We know you worked for it.

[K. Shaw]

And finally we covered on our year end episode KBJ's star turn on Broadway. We wanted to treat you now to some highlights from her appearance in the musical and Juliet which the show has now posted to Instagram.

[Leah Whitman]

Welcome to the first day of rehearsal. Thank you. So excited to be here. This has been a dream of mine.

[Unknown Speaker]

I got the eye of the tiger dancing through the fire.

[K. Shaw]

Cause I am a champion and you're.

[Unknown Speaker]

Gonna hear me roar.

[K. Shaw]

Show me the meaning of being lonely. Is this a feeling I need to walk with? Tell me why I can't be there when you are there's something missing in my heart.

[Unknown Speaker]

Sorry. Did you all Date Romeo. Yeah.

[Leah Whitman]

Oh, we used to do more than date.

[K. Shaw]

He used to come to my balcony all the time.

[Unknown Speaker]

I did it. I made it to Broadway.

[K. Shaw]

We hope that brought a smile to your face.

[Unknown Speaker]

And now for a little housekeeping before we go. Cricket's friends at Vote Save America Action and Crooked Ideas have set up a disaster relief fund to benefit those impacted by the horrific wildfires in Los Angele. And it's super easy for you to make one donation that's then split among incredible charities doing important work for our neighbors and first responders in Los Angeles. Among those charities are the Latino Community foundation, the Los Angeles Regional Food bank, the Los Angeles Fire Department Foundation, United Way of Greater Los Angeles, the California Community Foundation, Wildfire Relief Fund, and Inclusive Action. Thanks to you, We've raised nearly $154,000 for these great grand groups so far. And you can continue to make this a broader effort by learning more and making a tax deductible donation to this.

[Leah Whitman]

[e-mail] relief while California is racing to contain wildfires as weather conditions improve, MAGA leaders are blaming diversity, equity and inclusion for the crisis instead of focusing on real solutions. And this isn't new. Many companies are also rolling back DEI programs as the new Trump administration approaches. That's why this week on Assembly Required, Stacey Abrams and NYU law professor Kenji Yoshino tackle the myths, legal arguments and share why DEI is not the problem. It's a solution. Listen to this episode now on the Assembly Required feed.

[K. Shaw]

Strict Scrutiny is a crooked media production hosted and executive produced by Leah Lippman, Melissa Murray and me, 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 Herringer and Ari Schwartz. Matt de Groat is our Head of production. Thanks to our digital team, Phoebe Bradford and Joe Matoski, our production staff is proudly unionized with the Writers Guild of America East. Subscribe to strict scrutiny on YouTube. To catch full episodes, find [e-mail] strict scrutiny podcast. 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.

[Unknown Speaker]

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[Leah Whitman]

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[Unknown Speaker]

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[Leah Whitman]

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[Unknown Speaker]

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[Leah Whitman]

Trading terms apply. Payoff Phone requires smartphone purchase and port in with new smartphone line on select plan. Must provide most recent bill showing payoff amount of eligible phone. Additional terms apply.