Ketanji Brown Jackson Sounds the Alarm

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Hello, and welcome to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it.

I'm your host for today, Leah Littman.

After we recorded today's episode, Donald the Dove, the peacemaker, announced on TrueSocial that he had bombed Iran.

The post read, quote, we have completed our very successful attack on the three nuclear sites in Iran.

A full payload of bombs, all caps, was dropped on the primary site.

Now is the time for peace, also in all caps.

Thank you for your attention to this matter, end quote.

You're welcome, because we are going to give this some attention.

At the request of some of the friends of the pod subscribers, we wanted to offer a quick legal primer on issues surrounding the use of force.

This is not to suggest that the legal questions are somehow more important than just how dangerous and unwise it is to launch bombs on a foreign sovereign.

Our friends at Pod Save the World have explained this well, but the legal issues surrounding the use of force do underscore how much this administration is corroding our separation of powers and democracy.

Because this topic is so serious, we needed to discuss it in an even-handed, level-headed way.

And so I am delighted to be joined for this conversation by a true expert, Beck Ingber, Professor of Law at Cardozo Law School.

Beck served as counselor on international law in the Office of the Legal Advisor at the Department of State for two years, where she was previously an attorney advisor.

Thanks for joining the podcast, Beck.

I'm very happy to be here.

Okay, let's dive right in.

As a general, very high-level background, the Constitution gives Congress the power to declare war and to raise and support armies, and it makes the president the commander-in-chief of those armies.

As Steve Vladek observed at One First, if you're not subscribing to OneFirst, it's about to become even more indispensable, the federal courts actually used to review a range of questions about military operations during wartime.

But since the 1960s, the trend has been toward more solo presidential action.

And it was in response to one of those solo presidential actions, Nixon secretly bombing Cambodia without notifying Congress, that Congress passed the War Powers Resolution of 1973.

Beck, what does the War Powers Resolution do?

So when Congress passed the War Powers Resolution, they had really two overarching goals in mind.

So the first one is that they wanted to reset the constitutional balance of powers that you just alluded to, right?

So they wanted to clarify and remind everyone that the Constitution actually gave them the power to declare war and that the president was supposed to serve sort of more of a ministerial function as the commander-in-chief.

But they relatedly also wanted to create a sort of alarm system for Congress so that they could get more information from the president.

And they learned this well during the Vietnam War.

And ideally, they wanted to find out whether or not we were going to be heading down a war path before it would, of course, be too late for them to weigh in, or weighing in would be politically

impossible for them to do at that point.

So, they did that in part through reporting requirements and through this 60-day limit on the unilateral use of force.

But in terms of resetting the constitutional balance, they actually laid out in the War Powers Resolution Congress's understanding of

what is the exceedingly narrow context under which the President can use force.

And namely, those are when Congress has declared war, when Congress has given him statutory authorization to do so, neither of which are here today,

or a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

So that third category is the only unilateral power that the president has under Congress's understanding, right?

And that is the power to respond to a true attack on the United States.

So what are the administration's legal arguments for the strikes against Iran?

Well, typically when the U.S.

government uses force, they...

They give the public an explanation of why their actions comport with law.

And usually they're so transparent.

Well, sometimes they're more transparent than perhaps we'd like them to be.

But we don't have any signal chats telling us what their legal theory is here.

But usually it happens formally through the reporting requirements under the war powers resolution that I just mentioned.

But often we also get statements from the administration and we often get an OLC opinion, the Office of Legal Counsel in DOJ when it's released.

So I've been trying to piece together what we've seen from the various speeches and tweets, honestly,

that hint at the various legal arguments the administration may be contemplating.

And on the domestic side, and here the main overarching question is procedural, right?

Here the question is who gets to decide when to take us to war?

Does the president have the authority to use force here unilaterally, or is this question really in Congress's court?

And, you know, I think there's no question that as a constitutional matter and including under Congress's understanding of it as laid out in the War Powers Resolution, the decision whether to use force in this context against Iran was not one that the president could make unilaterally.

On the international plane, the main overarching question is actually substantive.

So, the background rule here is, at least since the UN Charter, is that states cannot use force to settle mere disputes.

So, there's a default rule, and the default rule is a ban on using force.

And there are narrow exceptions to that, like when the Security Council authorizes force or when a state is acting in self-defense.

So, if a state can use force that is necessary and proportionate to repel an armed attack by another state, and that includes an armed attack that is imminent, meaning meaning you don't have to wait until the bombs are actually dropping on you in order to repel them.

But short of that specific scenario, there's actually a lot of disagreement, as you can imagine, about what imminence requires.

And where this concept of imminence begins and ends is often the whole ballgame in terms of disputes about whether a state's truly engaging in lawful self-defense.

In this case, there's one more point that's relevant here, which is the collective self-defense.

So under the Charter, and this is relevant because it's actually the only legal terms that I've heard come out of the administration thus far.

So under the Charter, there's a concept called collective self-defense, and that means the state, a state can come to the aid of another state that is itself the victim of aggression.

So for example, Ukraine, international law permits the United States and other states, if they, or I should say would permit, right, states to use force in aid of Ukraine against Russian aggression.

And that one seems to be at least part of the argument that this administration is making, at least as a matter of international law.

So how are these legal determinations usually made?

And does it seem like that process is happening here?

So normally as the policymakers are contemplating a course of action, the lawyers would be simultaneously feeding analysis into that process.

And over the last several decades, through many presidential administrations, this was organized formally through regular lawyers group meetings that would be chaired by NSC Legal, and that would feed into the policy processes, such as the principals and deputies committee meetings.

And this process would include lawyers from the Justice Department, usually OLC, DOD

Office of General Counsel, the State Office of the Legal Advisor, as well as lawyers from the intelligence community.

And OLC in particular has played stronger and weaker roles at various points, but certainly on any significant decision to use force like this one, OLC would absolutely be expected to weigh in and would typically produce a legal memo with its views on the legality of the course of action, often though not always with the expectation that it would at some point be released publicly.

Now, I would assume, based on some of the little

almost terms of art that have been thrown around by this administration, that lawyers have been consulted through this process.

But given the insight that we've gotten from those signal chats we were talking about into the quality of the policy process, I find it hard to believe that these decisions are being informed by truly rigorous legal analysis, let's say.

Yeah.

So I think in the past, you know, the Office of Legal Counsel, as you were saying, has offered theories for when presidents can use force unilaterally.

So can you describe how that theory differs from what is envisioned in the War Powers Resolution?

Yeah.

So there are two different lines of OLC theory on when presidents can use force unilaterally, and they've largely actually played out under different administrations, but there's been some convergence.

So one is a self-defense theory, and that might seem like a more classic sort of repel attacks theory that the framers had in mind when they contemplated that there would be some opportunity for the president to act unilaterally.

But there are some OLC memos that actually remain on the books, in particular memos

from the early Bush administration days in the wake of 9-11, that view this concept exceedingly broadly and would have, for example, permitted the president's actions to invading Iraq in 2003 without congressional authorization.

Now,

those memos were written and they were made on the books, but Congress ultimately did authorize the use of force in both 2001 and in 2002.

And so the president didn't actually act on the breadth of those authorities.

So that's one set of theories.

The other is the one that actually we see more often.

And this is a theory that relies on the declare war clause of the Constitution, actually, in my view, as an authority and not just as a constraint.

And the idea here is that the use of force falls along a spectrum where war is a constitutional threshold.

And as long as they don't cross that threshold and act in a way that would be war in a constitutional sense, the president has power to act unilaterally.

So under this theory, OLC takes a chop on whether it's war in the constitutional sense.

And the way they do that under several administrations is

you know, analyze whether the nature, scope, and duration of the hostilities, and that includes the likelihood of escalation, amount to war in the constitutional sense.

And the president can only act unilaterally if it falls below that threshold.

Okay.

So it seems like from what has been unfolding that the legal questions and maybe also the policy decisions are being based more on vibes than on anything approximating law or facts.

You can kind of hear that from the VEEEP here.

And President Trump trust the U.S.

intelligence community and its assessments.

Oh, of course we trust our intelligence community, but we also trust our instincts.

And you can hear the same from Secretary of State Marco Rubio, who the Democrats confirmed unanimously.

Are you saying there that the United States did not see intelligence that the Supreme Leader had ordered weaponization?

That's irrelevant.

I think that question being asked on the media, that's an irrelevant question.

But that is the key point in U.S.

intelligence assessment.

You know,

yes, it was.

That's the political leverage.

I'm talking about the message.

I don't know what the intelligence is.

I think it's a March assessment.

And that's why I was asking you if you know something more from the US.

That's also

That's an accurate representation of it.

That's not how intelligence is read.

That's not how intelligence is used.

Here's what the whole world knows.

Forget about intelligence.

So it seems like the information we are getting about what is happening is also vibes rather than facts.

So as Senator Warren pointed out on Blue Sky on Sunday, quote, last night, Trump said Iran's nuclear program was completely and totally obliterated.

This morning, J.D.

Vance says we will permanently dismantle that nuclear program over the coming years.

Elsewhere has reported that maybe it wasn't severely damaged.

Anyways, I guess we'll find out someday.

But back to the legal slash legal-ish arguments.

So some brush clearing.

You mentioned the authorization of use of military force that Congress passed in 2001 related to the war on terror and 2002 that was then relied on for the invasion of Iraq.

Why don't those laws provide a basis for the use of force here?

Yeah, I'm really glad you asked about that because that's often a source of confusion for government lawyers in some cases as well.

Not usually for the government lawyers who are actually involved in the decision-making, thankfully.

But the 2001 AUMF, which was passed in the wake of the 9-11 attacks, specifically references those who organized and carried out the attacks and those who harbored them.

And so it was widely understood to refer to Al-Qaeda and the Taliban.

This is not an open-ended use of force.

The 2002 AUMF, Congress passed this one to authorize the president to use force against Iraq.

And here, this is actually an example of the president checking that domestic procedural box.

He had domestic legal authority, but the invasion was nevertheless unlawful as a matter of international law.

And then there are other examples, like, for example, Libya, where the opposite was the case.

So, really, you know, it's important to question whether or not the president has checked both boxes.

It's not like an either-or situation.

But there's been, over the years, so much talk about how much power Congress gave the president in the 2001 AUMF, and that's in part because presidents since that time have used that power for conflicts reaching far beyond the initial one that compelled it.

And all of that is true, and there's room for criticism, but nevertheless, all presidential administrations have tied those uses of force to al-Qaeda.

And we just need to be very, very clear.

In this case, there is absolutely no plausible basis whatsoever to claim that Congress authorized the president to use force against Iran under either of those statutes.

Okay.

So then, how about the war powers resolution?

You mentioned that that law limits the use of force for more than 60 days.

Does that, by implication, authorize the president to use force for less than 60 days?

That's another great question because it's another misconception.

So the war powers resolution says that when the president uses force unilaterally and recall the limited circumstances under which they thought he could do so, then he has to submit a report and he has to stop using using the armed forces within 60 to 90 days.

There's actually a little wiggle room under the statute.

So it's a further constraint on the use of force that

they viewed the Constitution as already granting the president.

And in fact, they were quite explicit as saying that this statute was not intended to give him any more power than the Constitution already provided.

But some, including OLC, actually, have read this as an authority.

Oh, you've mentioned 60 days.

Well, of course, that means that the president can do anything within that 60 days.

And that might be exaggerating exactly what they're saying,

but they have viewed it as evidence of Congress's understanding that the president could act unilaterally.

YOLO OLC.

I don't know.

I feel like there's an acronym in there somewhere, anyways.

So

JD Vance says we're not at war with Iran.

We're at war with Iran's nuclear program.

He added that we don't want war with Iran.

We actually want peace, something Trump's two social posts also gestured toward.

We all know, Beck, that one and done bombings are definitely a thing and definitely work.

Are they legal under domestic law?

Like, is anything he's saying relevant to these legal questions?

Well,

there are both legal and policy implications to these words that might explain why administration officials are trying to avoid saying we're at war.

And on the legal side, as a domestic legal matter, recall that OLC has this theory that as long as the use of force falls below the threshold of war, it's within the president's constitutional power.

So, it may be that the administration is sort of holding on to that and thinks that if they can wave around these words, that that would somehow

keep them below the threshold.

But this is a fact-based information.

In which case, it doesn't seem like an assessment.

It seems more like an excuse, but yeah.

Right.

And so

it's certainly, right, this isn't the first time they've used, either tried to use the word war or tried to say something isn't a war in this case for the purposes of invoking law, right?

So interestingly, in other contexts, like the Alien Enemies Act context, they're deploying words like war and invasion in order to invoke the power that comes along with it.

So in both cases, they're trying to tell us that two plus two, which we can clearly see with our own eyes, equals five.

But, you know, as I said, these are fact-based inquiries.

These aren't things that you could just turn on or off based on the words you're using.

Yeah, it has a very war is peace, but we're always at war with Eurasia kind of valence to it.

And already it seems like this idea that this is just a one and done, you know, below the level of war is already being subject to some slippage, at least on the president's True Social account, which posted later on Sunday, quote, it's not politically correct to use the term regime change, but if the current Iranian regime is unable to make Iran great again, why wouldn't there be a regime change?

MIGA, M-I-G-A, exclamation mark, exclamation mark.

But lest you're worried about another forever war, J.D.

Vance has this to say.

I certainly empathize with Americans who are exhausted after 25 years of foreign entanglements in the Middle East.

I understand the concern, but the difference is that back then we had dumb presidents.

I was surprised that they couldn't come up with a better distinction than that.

Well, they'll keep trying.

They're probably workshopping it over Signal.

So, you know, Beth, you've kind of alluded to international law, and I know Trump doesn't give two shits about it, which is part of why I want to talk about it.

But what does international law have to say about the president's use of force here?

You mentioned the UN Charter, self-defense, and collective self-defense, but anything else that kind of frames this?

Yeah, and actually, this is where the whole one and done idea, if we believed it, right?

And of course, they're immediately undermining the statements by suggesting that there might be further strikes.

But if we believed it, it actually does have relevance under international law.

So as I mentioned, you know, the background rule is the use of force is unlawful, but states can use force in self-defense self-defense that is necessary and proportionate to responding to an armed attack, to basically repelling the armed attacks as long as they need to do so.

And if they're genuinely doing so, like in the case of Ukraine, other states can come and lawfully use force for the same purposes.

The U.S.

government's international law theory here seems to be, from piecing together the statements of officials and HegSeth saying some version of self-defense and collective self-defense on behalf of Israel relies on an argument that we're using necessary and proportionate force or would rely if we were actually lawyering it properly, would rely on an argument that we are using necessary and proportionate force to repel an actual or imminent armed attack by Iran.

There's been, I just want to dispel one thing because there's been a lot of chatter about past attacks by Iran.

And so I want to just mention the extent to which those are relevant.

They are relevant, but they're not relevant because international law permits reprisals in any way.

It does not, right?

So we can't attack someone just because they attacked us.

There's no tit tit-for-tat legal theory.

But they're relevant because they do go to the question of whether Iran has intent and capability to strike, whether it's us or Israel.

And therefore, whether these strikes are strikes or Israel strikes because we're acting in collective self-defense, according to Hex of Israel, were necessary to repelling such a strike.

So those are fact-based questions.

And, you know, obviously I don't have access to the intelligence that would be required to answer it.

And I think even if

you're just forget about that, so no big deal.

Right.

I mean, if I could just trust his instincts.

But my sense from watching these issues, so I just want to be

careful in how I analyze it.

But my sense from watching these issues play out historically and from what I've seen of the legal arguments in the past is that both countries are likely operating under legal theories of imminence that are fairly aggressive, let's say.

And that's especially so in this context because the question involves one of nuclear weapons.

So stepping back, one last question.

I think a lot of people had the intuition that presidents have been pushing the boundaries of executive power on unilateral use of force for a long time, using force without congressional input or approval.

But at least to me, this still feels like a meaningful escalation from what we've seen in the past.

You know, are there things that strike you as different about this latest episode from what has come before?

Yes,

I think both of those things are true.

So I have long been a critic of U.S.

government views on the use of force and war powers, both international law and domestic.

And it's long been my view that even when acting in good faith and with good intentions, presidents have aggrandized power and pushed the legal envelope further and further over time.

And they've done so with the aid of U.S.

government lawyers who also acting in good faith and with good intentions have

believed their job to be providing the flexibility that they could find under the law for the president to act.

But I think there are some major distinctions here.

And one is that I'm not sure that the U.S.

government has ever, ever taken strikes of this magnitude and against another state without congressional authorization.

And the other, which is an overarching one, seems to be the total lack of legal guardrails inside the U.S.

government right now.

Now, these guardrails are, you know, when I talk about guardrails, these are the same government lawyers whose very existence and their ability to write up fancy legal opinions and arguments in court may have over time mollified both the courts and Congress and perhaps aided their reticence to get involved in these places, right?

Like we've got it, the fourth, you know, the bureaucracy is handling it and therefore we don't need to get involved.

But now

Even those internal constraints appear to be gone.

And in the meantime, I think Congress at least has lost its muscle memory to engage.

So we know this administration's tolerance for legal constraints is low and its tolerance for legal risk is high.

And that's true even in areas where the courts tend to get involved.

But here, you know, in both the international law context and in the constitutional separation of powers context, law is policed through a mix of norms, internal checks, responses by Congress, public outrage, and much of that has been muted or just plain exhausted in just a few months under this administration.

I think it's an opportunity for the old school separation of powers to re-engage on these issues, perhaps.

But I think, you know, as members of the public, we have to demand it of them.

Yeah.

So on that front, it does seem like something else that's missing to me is like an absence of public discussion about the possible bases for this strike.

And it also has an element of arsonist fireman to it in that he pulled out of the Iran deal,

you know, when the Department of State had certified Iran was in compliance and now is insisting, well, because they might develop a nuclear weapon, I get to launch these strikes.

But again, that's just my unlearned observation.

No, I think that's an essential component of it.

And I'm glad you raised it because we didn't even address that.

And of course, that's in the background.

But it does feel like yet again,

you know, this administration is trying to create an emergency or is creating an emergency that it then claims enormous power to resolve.

Beck, thank you so much for joining.

Where can people find you if they want to learn more?

For my personal views, you could find me at Blue Sky at Beck Ingber.

But in my day job, I am a professor of of law at Cardozo Law School.

Thank you again, Beck, for joining.

Thanks so much for having me.

While everything is going to shit, I wanted to note that there are currently four undecided Supreme Court cases from the March sitting on the Voting Rights Act, Planned Parenthood, non-delegation, and a statutory deadline case.

And the following five justices haven't written yet in that sitting, meaning they'll likely be the ones writing the opinions in these cases.

Alito, Kagan, Gorsuch, Kavanaugh, and Barrett.

Womp, womp.

Oh.

And there's also a chance that Justice Thomas has a First Amendment case about porn.

And now for more good news.

Our episode about how businesses get to challenge regulations, kind of whenever and wherever, rather than how Congress intended, how tobacco companies get to sue the FDA in the wild, wild Fifth Circuit, if they so please, and how fuel producers get to sue the EPA in a ruling that, according to Justice Jackson, quote, will no doubt aid future attempts by the fuel industry to attack the Clean Air Act, end quote.

And, she adds, quote, gives fodder to the the unfortunate perception that moneyed interests enjoy an easier road to relief in this court than ordinary citizens, end quote.

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Hi, everyone.

It's Leah.

Kate and Melissa are unfortunately unavailable for recording, but don't worry, I'm not alone, or even on a frosting-induced sugar high.

On the latter, you'll have to take my word for it, but on the former, I'm stoked to be verifiably joined by returning guest Steve Vladdick, professor at Georgetown Law and author of the indispensable one-first substack, and first-time guest Mike Sachs.

Mike is a former legal journalist who is now running for Congress out of New York for Republican Representative Mike Lawler's seat in particular.

I figured we needed a boost of energy, something to be excited about.

So how about a possible congressional representative who knows what's what on the federal courts?

Welcome to strict scrutiny, Stephen Mike.

Thanks for having us.

Yeah, thanks, Leah.

This is our first or annual or semi-occasional DEI for men with good personalities episode.

So I literally think this is the third time I was trying to remember that we have had an episode with two straight cis white men.

But one of those prior episodes did involve Steve, and that worked out okay.

So I think this will work, but we'll see.

If it doesn't, I'm going to hold it against all white men, though.

The good personality requirement might cut me off, though.

So, you know, Karen, no one asked Karen about that.

So here's the plan for today.

We're going to chat Supreme Court actions and then some legal news.

So boys, are you ready?

Ready.

Start your engines and may the best queen win.

So, we got a bunch of different opinions last week, both Wednesday and Friday.

We're going to quickly cover most of them so you can all be up to speed on what it takes to finish a Supreme Court term.

These aren't huge opinions, but we're going to nerd out a bit because all of them have interesting angles and nuggets if you know where to look.

First up, got the opinion in Nuclear Regulatory Commission versus Texas.

This was a six to three decision authored by Justice Kavanaugh with Justices Alito, Thomas, and Gorsuch in dissent.

The bottom line line here is few.

The lower court, the Fifth Circuit, because it's always the Fifth Circuit, had held that the NRC does not have the authority to license certain sites for nuclear waste storage, authority it had exercised for decades.

So this had enormous potential for disruption.

But the Supreme Court said the parties who were complaining here, a private facility in the state of Texas, weren't authorized to challenge the licensing decision.

So the court reversed the Fifth Circuit, always a good sign, and basically said, not today, Satan, on undending our entire system of storage of nuclear waste.

Gorsuch, joined by Thomas Otolito, would have said, yes, today, Satan, and so dissented.

Steve, what am I missing?

Not much.

I mean, I think the only two things I would add, Leah, are,

first,

this was one of those Jim-Ho specials where the Fifth Circuit had

relied upon a really fairly preposterous application of the major questions doctrine to hold that the Nuclear Regulatory Commission lacked the power to double whammy, Jim Ho, major questions.

Well, but second, I mean, I really do think that there's a theme that,

you know, this term has been dominated so much by Trump and by all the emergency applications.

But if we were to just look at the so-called merits cases, to me, the most overarching theme of the term is the Fifth Circuit behaving badly.

You know, by my count, I think it's 16 of the cases the court granted Sertiari in.

18, if you count the appeals in the Louisiana redistricting cases, came from the Fifth Circuit.

That's basically a quarter of the docket.

And, you know, at least to this point, the Fifth Circuit's not doing very well.

And here's another example of why, mind you, with the court finding a procedural reason to get rid of the Fifth Circuit's ruling, as opposed to saying actually they were wrong on the merits.

And so, you know, I would prefer reversals on the merits because I think some of these opinions are really like remarkably either bizarre or wrong-headed or both.

But, you know, when this is the court you have, this is the result you can get.

Steve, I'm a little bit worried that Edith Jones is going to print out a transcript of this episode and bring it in a manila folder to the next Federal Society event with that remark about the Fifth Circuit.

I've been trying to give her more fodder because, you know, for her clerks who hate listening to this podcast, there was a letter to the editor in the Wall Street Journal on Friday by me about how the Trump administration had judge shopped in Reid O'Connor's simple judge division in Wichita Falls.

That's definitely going in the folder.

So, you know, we'll see if they can figure out how to make this transcript go in there too.

So speaking of judge shopping, we also got the cases about where entities can file challenges to various EPA and FDA actions.

That's the Environmental Protection Agency and Food and Drug Administration, and specifically whether the suits must go to the Law Forward, DC Circuit, or whether they can instead be brought in the What is law, don't know her, Fifth Circuit.

So on the EPA cases, which were a pair of cases, EPA versus Calumet Street Port Refining and Oklahoma versus EPA, the Supreme Court kind of split the baby.

Both opinions were authored by Justice Thomas, and the court adopted a two-step test to determine whether an EPA action had nationwide scope or effect, which requires cases to be filed in the DC Circuit, or whether an action instead was locally or regionally applicable, in which case it could be filed in a regional circuit.

Koffkoff, the climate disaster, that is the Fifth Circuit.

Under the two-step test, courts first ask if it's nationally applicable or regionally applicable.

The two cases involved two different actions, denials of exemptions for individual small refineries from a renewable fuel program, and in the other, denials of state implementation plans for the Clean Air Act.

Both actions, the Supreme Court said, were local and regional because they applied only to particular entities.

But at the second step of the test, the Supreme Court said the former had nationwide scope or effect, and the latter was regionally and locally applicable.

That's because the denials of the refinery exemptions were based on a determination that, as a legal matter, applies throughout the country and would have had nationwide effects too, and that that determination was the most important part of EPA's reasoning.

Steve, what were your reactions to this kind of test-ish that the court adopted?

I might be jumping in the gun a bit.

I will say, I think the test in the EPA cases a little bit self-serving.

And basically, you know, if we want the relevant regional court of appeals to have the case, we'll find a way to let them.

And if we don't, we won't.

This is jumping ahead a bit.

I was much more troubled by the venue analysis in the FDA case

because it seems to me that...

I know.

But so it seems to me that like this was venue day at the Supreme Court and not just venue day because if we throw in diamond alternative energy, I think you get venue and standing day.

And it is just,

I mean, we don't have the time to do this justice, but the lengths to which the justices will go

to basically facilitate the ability of litigants that they like to bring lawsuits where they want them to be able to bring them, I think is, you know, I mean, Justice Jackson called them out on it a little bit in one of her dissents on Friday, but I'll just say.

A little bit.

Yeah, a lot.

I mean, you know, not as much as footnote 12 in the ADA case, but But I'll say...

Steve, you're jumping way ahead.

Give us a sec.

Okay, I'm sorry.

Spoiler alert.

I just want to say, though, I mean, I mentioned a couple minutes ago, I mean, insofar as one of the themes of this term is how the it's, you know, cleanup on aisle Fifth Circuit.

It seems to me that the justices ought to be appreciating that these two things are related and that the easier that they're going to make it for litigants to basically steer cases into the Fifth Circuit, the more they're going to have to clean up messes that the Fifth Circuit makes.

I mean,

how you can look at those two things and not see a connection is what I really don't get in these cases.

You know, let me go galaxy your brain here on you guys.

Not just this term, but last term, we're all about cleanup on aisle five.

And I was going to use that term too, Steve.

My bad.

But it's not just about cleanup on aisle Fifth Circuit.

It's about setting the Fifth Circuit up as a foil to say, hey, we're not those guys, right?

They're MAGA.

We're not quite MAGA.

And the Supreme Court uses the Fifth Circuit to make itself look good.

I mean, the Fifth Circuit is the one that takes the first action to do so.

But for the past two terms, this term and last term, this court has brought terrible things to bear on the Merits in cases.

Terrible.

But they are saying, but you can go with this or you can go with those guys over there.

And in that way, this is more of Roberts trying to make his court seem to look reasonable, seem to get the headlines of a moderate court at the end of the term, even when they're doing wildly immoderate things on the things that actually truly matter to the supermajority.

But the galaxy brain stuff is this.

They are shunting things to the Fifth Circuit only so that then they can get those things back on the merits and say, no, sorry, Fifth Circuit.

And we saw that with the tobacco cases as well.

That was a note in, I think, Jackson's dissent from that case.

You know, yes, we can send this, we'll send this thing back to the Fifth Circuit, but remember, we still cited against tobacco folk on the merits from the Fifth Circuit's decision there.

Yeah, well, so on that galaxy brain analysis, I think even if the Supreme Court can't totally control what cases they have to take from the Fifth Circuit, given that because of how crazy the Fifth Circuit acts, I don't think the court has a choice about whether to take some of their cases.

But what I do think they have a choice over is whether to tell the Fifth Circuit to knock it the fuck off and actually go out of their way to tell them they are out of line.

And they have yet to do do so, even when they reverse the Fifth Circuit.

And friend of the pod, Sherilyn Eiffel, has kind of described the relationship between the Supreme Court and the Fifth Circuit as like the parent who spoils the child and never actually disciplines them.

And therefore, I think is enabling this bad behavior.

So, anyways, since you both have already alluded to it, we also got the FDA opinion about where to file challenges to FDA actions or some of them.

And in that case, FDA versus RJ Reynolds, the Supreme Court went all in on go ahead with regional circuits.

So the Supreme Court said that retailers who would sell a new tobacco product, if not for the FDA's denial order, may seek judicial review of the order in the place where said retailer resides.

This essentially allows entities to pick where they will challenge an FDA denial order, Koffkoff, Fifth Circuit, since you can always find a prospective retailer.

So more forum shopping on matters of public health.

And the Fifth Circuit is going to help these guys make America healthy again by requiring us all to inject ourselves with ketamine, drink raw milk, and do other things too.

So, this was a 7-2 Baird opinion.

And Justice Jackson, joined by Justice Sotomayor, dissents.

You know, I kind of think the Supreme Court has gotten the message from the Republicans in Congress that forum shopping is bad when Democrats do it and good when tobacco companies do.

Mike, you had already kind of alluded to Justice Jackson sounding an alarm to that effect.

Did you want to explain a little bit more kind of what she had said?

So yeah, Justice Jackson in her dissent in this case continues along her path towards being the avatar of what the Supreme Court can be,

should we will it.

Every time she writes separately, almost every time she writes separately, since she's joined the bench, she has focused on the democratic process.

She's focused on deferring to Congress and what Congress intends.

She's deferred to the will of the people, absent clear constitutional restraints.

And this is something that we don't get anymore in this judicial supremacist Supreme Court.

So I've been tracking this for some time, and every time I read anything she does, I go immediately to Control-F Congress.

I go immediately to her first and last paragraphs, which then in these cases.

Congress, what's that?

Yeah, correct.

In each of these cases, she just goes full bore on talking about the will of Congress, not the will of the court.

And sometimes this is kind of a thing that the dissenting majorities do back and forth when they're doing statutory interpretation.

But she comes at it with such force and with such authority that it's clear when she's she's writing, she is actually taking seriously Congress's will.

So she just keeps going consistently to talk about what Congress intended.

And that has been her when talking about federal laws has been her lodestar in ways that is refreshing at this point with a Supreme Court that all too often inserts its own interpretation, its own understanding, to pursue it to its own right-wing agenda when reading our laws.

Steve, I know you mentioned you were especially troubled by the the venue analysis in the FDA case.

So I also wanted to give you a chance to add to why that was.

The really, really short version is just that it is so easy for a large corporation that wants to sue to challenge a regulation under the majorities analysis to find any mom-and-pop retailer, a gas station that sells vapes,

and thereby sort of pick whatever court in the country they want to spring their lawsuit in.

And

in a world in which we had a normal distribution of federal judges across the United States, that might not be so troubling in a world in which I think even the folks who are more positively disposed toward the Fifth Circuit than I think the three of us are would have to admit the Fifth Circuit is an outlier.

All this means is that more and more of these cases will be brought in the Fifth Circuit when it's this set of regulations, right?

And in

the first or the fourth circuit when it's in the other direction.

And that just seems like it's only going to exacerbate these litigation trends that we're seeing, where, you know, instead of randomness in the lower courts, litigants are really able to manipulate to the maximum extent, you know, the best possible judge or at least the best possible bench to get their case before, which by the way, just puts more pressure on the Supreme Court.

Yeah.

And you mentioned that it's big corporations who are going to be able to do this.

And I think that speaks to the point that you and Mike were gesturing toward earlier that I know we're going to come back to, which is which kinds of litigants the Supreme Court favors and gives more power to control their cases.

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So, unfortunately, that decision wasn't the only attack on administrative agencies we got last week.

These guys were not going to let Doge and Big Balls have all the fun.

So, I wanted to talk about two together.

One is the Supreme Court issued the opinion in McLaughlin Chiropractic Association versus McKesson.

The formal holding in the case is that a federal law, the Hobbes Act, does not bind district courts in civil enforcement proceedings to how an agency interpreted a statute, But the practical effect of that ruling is to allow parties to challenge an agency's order.

Well, after the order has gone into effect in litigation in which the government is not a party and in another court where they can choose to sue.

So, the judicial review provisions of the Hobbes Act require agency orders, like the federal communication orders at issue here, to be subject to the exclusive review of the Court of Appeals in pre-enforcement suits.

But these guys were not going to let that get in the way of a good time.

So, as Justice Kagan noted in her dissent, this holding subjects all administrative schemes and the many businesses and individuals relying on them to the ever-present risk of disruption.

This was a six to three Kavanaugh opinion with the Justice Kagan dissent, the very definition of an unfair fight.

Just one sampling, Justice Kagan's footnote: quote: the majority's response relegated to a footnote is hard to make out.

Yeah.

Unfortunately, we're still more fun and done with the deep state.

So the next decision is diamond alternative energy versus EPA, where Brett the Builder said, fuck climate change.

But Steve, do you want to actually summarize what the court said?

Sure.

I mean, so it's an Article III standing case, at least in theory.

And the question is whether the sort of this alternative energy group in California had the power or had the right to challenge the EPA's approval of certain attempts by California at the state level to to regulate various forms of emissions and other pollution.

I will say, Lee, what I find striking about

not just the majority opinion in Diamond Alternative Energy, but its authorship is this is the same Brett Kavanaugh who wrote the majority opinion in TransUnion saying, no, standing is super limited and we have to be very wary about it.

And here it's like, oh, you actually have some like indirect way in which you think the EPA's approval of this other thing is kosher or not kosher?

Go to court.

I will say I am relatively sympathetic to broad theories of Article III standing, so I'm less troubled by the result in Diamond Alternative Energy.

What I find really exasperating about it is actually the inconsistency, right?

That you have the majority opinion written by Justice Brett Kavanaugh, who wrote the majority opinion in TransUnion versus Ramirez, where a 5-4 majority struck down a statute

that authorized particular plaintiffs to bring lawsuits against credit protection agencies when they were were maintaining databases with incorrect information.

It seems like you can't be like super anti-standing when it's consumers and super pro-broad theories of standing, you know, when it's these energy companies trying to indirectly challenge what California is doing.

And I think most of the justices are being.

I'm not doing the usher, watch this.

Yes, you can.

I think it's just that like the conservative justices don't see

how much they like are sympathetic to standing when they're sympathetic to the litigants and how much they're not when they're not.

Well, except Justice Jackson made them see that today, didn't she?

In her dissenting.

Well, and so, but no, but so this is why I found Justice Jackson's dissent in Diamond Alternative Energy so freaking useful

and something that's already going on in my federal court syllabus for the fall.

Oh, for me.

Right.

Because, you know, I mean, and I really think this has been a theme in Justice Jackson's opinions this entire term, but it really came out last week, is that she is like calling things as she sees them.

Yeah.

And, you know, in Diamond Elsewhere Energy, that means like literally accusing the majority of recognizing stand-in for litigants, you know, for big, for basically money, business interests, and nobody else.

Now you have sort of attempts to rationalize these doctrines that seem to be completely

just incoherent when it comes to why some people get to sue and why others don't.

So I want to just make two extra points about this particular case, bringing us back to

this case, the EPA case.

One is about the case itself, and the other is about the makeup of the majority.

So, this case has been going on for a couple of years now, but it goes back to when 2013, the Obama EPA, let California lead the way on vehicle emission standards.

And then Trump comes in office in 2019, then says, nope, sorry, reverses.

Then in 2021, the Biden EPA reinstates the 2013 Obama rule.

And then in 2022, Republican state AGs and fuel companies sue to restore the Trump rule because they weren't going to get it

back in through the political process.

And then the DC circuit said no standing for the fuel companies, which is how it came to hear, and rejected the suit from others as well.

So what happened now is Trump's back in office.

And multiple times in both the majority and then in Jackson's dissent, the justices acknowledge that Trump is about to reverse course again.

And yet, as Jackson noted, this court still decides to jump in and make a hash and a mess of standing analysis when they could have just said, you know what, we're not going to even rule in this case.

I think even the Trump administration said, please don't weigh in at this point.

We're on our way towards rescinding the rule.

So this is the court again jumping in to make a hash of things, but let's just note the majority here was seven to two.

You had Kagan with the majority.

And in Friday's cases, Kagan was showing herself as a conciliator, trying to, I don't know, you know, find common ground with the supermajority.

in ways that she did not on the issue that she really truly cares about, where it was 6-3, and she wrote the dissent on a matter of administrative law and extending Loper Bright outward towards towards towards new issues.

And she made that perfectly clear.

But in other cases, she was siding with the supermajority here or siding with conservative right-wing results.

So I wanted to note one thing about the majority and then one thing about the Jackson dissent.

But I know we have a lot of other things to cover.

So just quickly, because this was a Coach Kavanaugh opinion, my eyes and ears were subjected to the following hypothetical, quote, if the government prohibits aluminum bats in Little League, then aluminum bat manufacturers, not only Little League, might be objects of the regulation.

This was just an aside on a legal theory he didn't even address.

And, Steve, you had mentioned that he might have had a special guest in the courtroom, supposedly, Kim Mulkey.

And I wondered if that's why I was subjected to that terror.

But, second, the thing about the dissent, the Jackson dissent, which we've already alluded to, she makes pretty remarkable claims about how the court can at least least be perceived to be favoring the fuel industry and corporations.

So she writes, quote, I worry that the fuel industry's gain comes at a reputational cost for this court, which is already viewed by many as being overly sympathetic to corporate interests.

She acknowledges, you know, some researchers have suggested the reputation is unfounded, but at the end of the day, like that.

perception is pervasive and the mere appearance of favoritism can undermine confidence in the integrity of the judiciary.

I appreciated that call out.

You know, that is also definitely going in my fed courts class as well, Steve.

So just, I think that that was part of the pro-democracy, you know, concern, Mike, that you had been highlighting.

Anti-billionaire capture.

Yeah, it's terrible.

Yeah, exactly.

So another case in which that theme came through was Stanley versus City of Sanford, a 7-2 Gorsuch opinion.

There were some concurrences in the judgment.

There, the court held that a retiree cannot bring a suit under the Americans with Disabilities Act if they, quote, do not hold or desire to hold an employment position, end quote, that they're capable of performing with a reasonable accommodation.

So here, Stanley retired because of a disability, and then after she retired, she sued her employer because of changes they made in their policy on health insurance benefits for retirees.

But at that point, the Supreme Court said she didn't want the job, and therefore she can't sue.

So Justice Thomas had a concurrence that we do have to talk about.

Welcome to our now recurring segment of we need to talk about Clarence Thomas's concurrence or conclarence.

What was the concurrence, Mike, and why was it so striking?

Oh, geez.

Okay.

And this was joined by Justice Barrett.

We need to remind ourselves of this as well because of all the chatter over the past couple of weeks of Barrett somehow slipping left because she's not always with Trump.

We need to remember that she is fully on board with the right-wing legal movement's agenda here.

And in this, in this Clarence Thomas concurrence, he writes separately to express My concern with the increasingly common practice of litigants urging this court to grant certiorari to resolve one question and then after we do so pivoting to to an entirely different question.

That's exactly what Mississippi did in Dobbs and Thomas and Barrett weren't exactly complaining about it then.

If we remember when Dobbs came to the court, Ginsburg was still alive.

And the question that Mississippi put to the court was about its 15-week ban and whether to, I think, erase the viability line or really revise the undue burden standard in Casey.

It was geared towards Roberts, then the median vote, to uphold the 15-week ban and strike the penultimate death blow towards Roe, but not the ultimate one.

But then Barrett came to the court, and the court was considering whether to take the case for a very long time.

And the moment they then agreed to hear the case, Mississippi, in its merits brief, then said, oh, never mind that.

Let's overturn Roe.

And what did the Supreme Court do, including Justice Thomas and Justice Barrett?

They went along with that.

They did the very thing that Thomas and Barrett, in this very opinion, is big mad at the litigants doing here.

So just the hypocrisy and the lack of self-awareness is obscene.

Maybe this was hypocrisy week at the court, although that seems like more than one week,

you know, from what we are seeing.

So this was another case where there was a Jackson dissent that I think sounded some of her concerns with the court's project and whose interests the court was favoring and how they were going about it.

So, there was a remarkable footnote.

And even though her dissent was joined by Justice Sotomayor, here she spoke only for herself.

And instead of reading this footnote, I am instead going to share with our listeners the following jam of the summer, which is friend of the pod Ellie Mistahl putting this footnote, footnote 12, to music on TikTok.

And we all need this energy right now.

So here you go.

The majority's contention that I reject pure textualism as insufficiently viable to secure the result I seek stems from an unfortunate misunderstanding of the judicial role.

Our interpretive task is not to seek our own desired results, whatever they may be.

And indeed, it is precisely because of this solemn duty that, in my view, it is imperative that we interpret statutes consistent with all relevant indicia of what Congress wanted, wanted, as best we can ascertain its intent.

A methodology that includes consideration of Congress's aims does exactly that, and no more.

By contrast, pure textualism's refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences.

By finding answers in ambiguous text and not bothering to consider whether those answers align with the other sources of statutory meaning, pure textualists can easily disguise their own preferences as textual inevitabilities.

So, really,

far from being insufficiently pliable, I think pure textualism is incessantly malleable.

And that's its primary problem.

And indeed, it is certainly somehow always flexible enough to secure the majority's desired outcome.

Mike and Steve, I know, I mean, like, this footnote is a banger.

I don't know if you wanted to share particular reactions to it.

I mean, the last sentence is amazing.

I'll let Steve handle this one, though, if he wants to.

No, I mean, I think it's just...

Jackson, I mean, again, she's saying what I think so many of us have been thinking, and she is is distilling into accessible prose what really are, in many respects, the central analytical critiques of the dominant methodological commitment, or at least the dominant purported methodological commitments of the justice in the majority.

And, you know, more power to her.

And I'm curious as to sort of Sotamayor not joining in this footnote because she doesn't agree with it or because she actually wanted to like let Jackson have it for herself.

Yes.

Right.

And sort of not sort of, you know, take credit for what really is an unusually strong accusation of methodological manipulation by one of the justices.

I think to some degree, Sotomayor, because this was this a Gorsuch opinion?

Yeah.

Yeah.

I think Sotomayor, to some degree, still likes to hold on to her friendemyship with Gorsuch when it comes time for certain criminal justice issues.

Now,

Jackson joins those two.

Justice also joined.

Yeah.

But I think there's something to what Steve just said, because this footnote is is consistent with, again, Justice Jackson's vision of the future of a pro-democracy Supreme Court.

She says, quite literally, she says, it is imperative that we interpret statutes consistent with all relevant indicia of what Congress wanted, as best as we can ascertain its intent.

And then she just goes and says, pure textualism is result-oriented garbage.

That's how she ends it.

It's a straight-on assault.

on Gorsuch and his pure textualism.

But it's also a defense of the modality of statutory interpretation that conservatives have spent the last 40 years vilifying, which is, you know, looking like, yes, legislative history is imperfect.

And yes, legislative history can be manipulated.

But there are reasons why it is legitimate to ask what the context is in which words are adopted.

And it's just, you know, it's, she really is, I think, you know, in some respects, claiming the mantle of like intellectual leadership

for the, you know, not on everything.

I mean, I think I still, I think it's still Justice Kagan on some of the other stuff.

And I think it's still Justice Sotomayor on, you know, criminal procedure issues, for example, but on like methodology.

Yeah.

This is like Jackson really, I think, step in with the business.

She is the alternative voice.

It's vision.

It's vision.

I think Kagan and Sotomayor arrived at the bench in a defensive crouch in the pre-Dobbs era.

And Jackson is the justice for a post-Dobbs era with a court that

for those who no longer believe in judicial supremacy for good or for ill.

And also for those who don't think the battle or war will be won by trying to compromise.

And instead we need something entirely new.

That's also where I see her coming in.

I just want one quick thing about the Thomas concurrence and then just before we run past it, which is just there should come a point, right, where the justices have to stop pretending that they are ignorant of all of the discussion of what the court does.

I mean, right, there is so much work being done out there right now about how often the court is reaching questions the parties didn't present, about how often the court is rewriting the question presented to answer whatever they want to answer.

You know, for Thomas to say, this is not what we do,

is, you know,

it's galling.

Yeah.

So two quick opinions I'm going to quickly summarize before we get to another that has an Alito dissent that is worth pausing over.

So one of the opinions, Fold versus Palestinian Liberation Organization and Palestinian Palestinian Authority, is where the PLO and PA were sued under the Promoting Security and Justice for Victims of Terrorism Act.

The law designates those entities as defendants that shall be deemed to have consented to jurisdiction in Anti-Terrorism Act litigation.

The law subjects them to jurisdiction on the theory that they pay salaries for terrorists in Israeli prisons and families of deceased terrorists, which promote terrorism, and because of their activities on United States soil.

The Supreme Court said that did not violate the due process clause because a statute reasonably ties the assertion of jurisdiction over the PLO and PA to conduct involving the United States and implicating sensitive foreign policy matters within the prerogative of the political branches.

This was a unanimous opinion with a Justice Thomas concurrence in the judgment that I actually blessedly think we don't have to talk about.

In Puru versus Richards, the Supreme Court held that parties are entitled to a jury trial on Prison Litigation Reform Act exhaustion questions, which are about whether plaintiffs exhausted their administrative remedies for legal violations that occur in prison, at least when that issue is intertwined with the merits of a claim that requires a jury trial under the Seventh Amendment.

Here, the issue of exhaustion was linked with the underlying merits because the plaintiff had said there were threats of retaliation after they reported a sexual assault claim and that those threats deterred them from seeking future recourse, i.e., from further exhausting their remedies.

This was a five-to-four opinion by the Chief Justice, joined by Justice Gorsuch and and the Democratic appointees.

Okay, final SCOTIS opinion.

In Esteris versus United States, Justice Barrett, in a 7-2 opinion, held that district courts, in considering whether to revoke a defendant's supervised release, may not consider retribution vis-a-vis the defendant's underlying offense.

The statute setting out preconditions for imposing supervised reliefs does not include that sentencing factor, which is listed in 3553A, the statute about imposing the initial sentence.

The opinion was 7-2.

The dissent was authored by Alito, joined by Gorsuch.

Justices Sotomayor and Jackson filed concurrences.

They don't think courts revoking supervised release can consider retribution for any purpose.

And Sam Alito really needed to take an emotional lap before filing this dissent.

So here's the opening: quote: Veteran trial judges often complain that their appellate colleagues live in a world of airy abstractions and do not give enough thought to the practical effects of their holdings.

Today's decision is likely to earn the rank of Exhibit A in the trial bench's catalog of appellate otherworldliness.

End quote.

Raise your hand if you're a trial judge and you have felt personally attacked by Sam Alito.

Notice everyone raising their hands.

So Sam Alito is the guy in the hot dog suit meme.

Like we're all trying to find the guy who did this because we could play a game where we go around and name examples of Sam Alito not giving two shits about trial judges.

I would start with his opinion in Alexander versus South Carolina Conference of the NAACP,

or there's New York versus Department of Commerce.

Like, this guy just doesn't care about fact findings that don't go his way.

Also, the only two former district judges on the court voted the other way, Sam, and that didn't give him pause.

Also, I don't understand why Sam Alito was so angry.

So, Wired reported that one of Martha Ann Alito's favorite flags, the Appeal to Heaven flag, a popular symbol for Christian nationalists that was waived by January 6 rioters, was raised over the Small Business Administration headquarters in the last two weeks.

Apparently, they're knocking back Martha Rita's at the SBA.

And I'm pretty sure Melissa manifested this at our live show by engaging in some Martha Ann erasure by admitting that she, Melissa, had forgotten about the whole freak flag flying thing.

Now to more SCOTIS adjacent legal news.

So the Ninth Circuit formally stayed Judge Breyer's order that found Trump's federalization of the California National Guard unlawful.

So that order returning control of the California National Guard to the California governor is not in in effect and isn't going to go into effect.

So, Steve, what did the Ninth Circuit do and how concerned should we be about the decision?

Yeah, I mean, I think, I mean, what the Ninth Circuit did is it basically said that given where we are right now, it is not clear that the plaintiffs have that strong, the plaintiffs, Governor Newsom, has that strong a chance of winning on the merits with regard to the claim that this random obscure federal statute, 10 USC Section 12406, doesn't allow for the federalization of so far 4,000 members of the California National Guard for what they've done to date, which critically, at least as of now, or at least in the posture in which the Ninth Circuit decided this, did not include what we might call ordinary law enforcement activity.

The case was already back before Judge Breyer Friday afternoon, with California now arguing that there has been some law enforcement activity.

And so there's been, in California's view, a violation of the Posse Comitatus Act, this 1878 statute that prohibits using the military domestically for law enforcement without specific congressional authorization.

Leah, I don't see the Ninth Circuit decision as really foreordaining what happens on the preliminary injunction.

I think it's just saying

we need more.

Like, you know, before we can really hold that any of this is unlawful, right, we need more evidence that something is happening beyond just federalizing the National Guard.

So can I ask you about that?

Because obviously I agree that this decision doesn't say anything about the posse comitatus issue.

That is, it only addresses this kind of threshold question of activating the guard.

It doesn't say anything about what the guard might be doing.

But are you saying that this decision doesn't even foreclose Breyer doing kind of like the same thing for other reasons or based on additional evidence based on the activation issue?

So, I mean, I think it makes it harder, right?

So, you know, granting a state of a TRO, right, is not necessarily saying there's 100% chance we're going to rule for President Trump on the merits.

It certainly makes it harder.

And so, I think Judge Breyer would need pretty good reasons to say that the federalization itself was unlawful for the purpose of the preliminary injunction.

I will just say, and I think Leah betraying my own views to a degree.

I've always thought that the much larger concern here is the law enforcement piece of it.

am not as bothered,

I'm not as bothered in the abstract by the notion that presidents should be allowed to federalize the National Guard in some circumstances without the governor's consent.

I think that's not just a fair reading of the statute.

I think it's a good reading of history.

To me, the issue is what are you using the National Guard for?

To my mind, what you're using the National Guard for is basically inextricably linked to this activation question.

Like, if you think the president is kind of federalizing the National Guard based on the idea that there has been some, you know, legal violations, right, vandalism, disorder, that is like ordinarily the purview of state and local law enforcement and that efforts to do something about it kind of are just inextricably related to that traditional law enforcement.

Mike, it looks like you wanted to say that.

Yeah, I think this ultimately came down to a level of deference to the executive as the executive, not to the executive as Donald Trump.

And this panel, which was one of the normie,

they said one is a normie Trump judge in the Ninth Circuit, a Trump judge in the Ninth Circuit, and then a Biden judge, was unanimous in extending this presumption of regularity to the executive.

And I think what Judge Breyer did was say, you're not regular.

This is not normal.

But when it gets to the Ninth Circuit, maybe their view was that at this point, well, at least for Judge Sung, the Supreme Court will probably

do what the other judges of the Ninth Circuit wanted to do.

So let's not stick my neck out here in ways that the Supreme Court could then say otherwise.

But really, this comes down to presumption of regularity.

We talk a lot about this.

And this is a hard question for judges, because on the one hand, we have a deeply irregular president who acts in consistent bad faith.

And it's plain for all to see.

But when it gets laundered through the court system, the courts have to look at it at this president, or they insist they must look at this president through the lens of just a theoretical executive.

This is what we saw with the Supreme Court, at least with John Roberts' position in Trump v.

U.S.

That runs headlong into letting a would-be autocrat run rampant through this country, so long as he can pull some statutory authorization that requires courts to defer to the executive.

And that's messed up.

But on the other hand, if you don't presume regularity, then when the worm turns, then if the next president who is a Democrat has to pull a little rock

and a court says, well, no, that's irregular too, and we won't let the president activate the National Guard in that regard,

that's another consideration.

But then we have to remember that, at least at this point in our political history, Republicans are deeply irregular, and

both in how they act in power and how their judges act

when they don't have political power.

And there will be no fair play.

Republican judges will extend a presumption of irregularity to a regular Democratic administration in ways that now,

at least, Judge Sung in this case was extending a presumption of regularity to a highly irregular president in this case.

Steve, I know you are going to have to bounce.

So, I want to give you the chance to say more about the Ninth Circuit decision and this issue before you have to go.

Sure.

I mean, so first, let me just say I'm really glad that someone from my fall 1L small group other than Stuart Rhodes is now making the news.

Jennifer Sung, fall 2001 Rubenfeld small group for the win.

And boy was that, yeah,

that's a whole, that's a different episode.

So I think, I mean, Mike's exactly right that the whole issue here is the presumption of regularity.

I will just say that I also think it is entirely proper, given how the Supreme Court has been behaving on emergency applications, for circuit judges who are not just in the bag for whatever President Trump wants to do to be thinking about how to put these cases in the best possible posture for if and when they go to the Supreme Court.

And it seems like, you know, Mike, I agree that figuring out when the presumption of regularity can and should be overcome is perhaps the dominant tricky question of the moment.

I think a national security case about using military force is not going to be first.

for John Roberts, Brett Kavanaugh, and Amy Cody Barrett.

And so, you know,

part of this, again, is my own biases.

I actually am less troubled historically by, you know, using the military domestically in some circumstances.

And part of it is also

that I think in the broad strokes of things, the place where this becomes a big problem is not just the federalization, but if it's, if we're doing, so let me back up a second.

If it's okay for the president to use troops, for example, to protect the federal courthouse in Portland, as President Trump did, right, in 2020, then I think the question is, what's happening in L.A.

that's different?

And there are answers to that question.

And that's what, and that's, and there are good answers to that question.

And I'm on the side that this is different, but it's different not simply because he said, let's have troops to protect federal functions, right?

It's different, to me at least, because of largely what's happening on the ground.

That's why, Lee, I think the preliminary injunction hearing and proceedings are so important.

Yeah, no.

I mean, Judge Breyer acknowledged that he did not have before him at the time

as to whether these National Guardsmen were performing ordinary law enforcement functions, and that would be very important to have, you know, in any proceedings on this issue about whether the National Guard are being used properly.

Steve, thanks so much for joining us.

Thanks so much for having me, Leah.

Mike, great to be with you too.

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Mike, we are going to proceed onward with legal news.

And here it is legal news that's kind of like other Supreme Court actions that relate to developments in the lower lower courts that we wanted to highlight.

So the Supreme Court ordered a state court to take another look at whether New York's abortion health care coverage requirement, the law requiring insurance to cover abortions, violates the religious rights of anti-abortion entities.

The reason why the court ordered reconsideration, though, is kind of what raised a red flag, and that's the Supreme Court said the lower court had to take another look at the case in light of the Supreme Court's decision in Catholic Charities, the decision that held unconstitutional a rule requiring religious entities to engage in proselytization in order to be eligible for a state tax exemption.

There, that is, in Catholic charities, the court reasoned that the anti-proselytization rule discriminated against certain denominations that don't allow for proselytization.

Suggesting Catholic charities is relevant here to a law requiring health insurance coverage for abortion is concerning because it's holding open the possibility that a rule protecting abortion rights discriminates against denominations that object to abortion.

And that's basically exactly what we warned about when we discuss Catholic charities, as you can hear here.

I think we'd be remiss if we didn't point out all of the ways in which this decision, despite its efforts to hem in this out-of-control majority, may still pave the way for more significant changes in First Amendment doctrine.

So here's a question.

What other conditions will the Supreme Court say discriminate between different religions or different religious denominations?

What about a non-discrimination condition?

Would the Supreme Court say that that discriminates against certain denominations, provides an opportunity to distinguish between different denominations?

What would this decision mean in the context of religious hospitals or organizations that are affiliated with a church?

And I don't think this is an abstract question because over the last couple of years, there have been a number of hospital consolidations under hospital corporations that are affiliated with the Catholic Church and the Baptist Church.

I'm thinking of Dignity Health, for example.

What rules can states apply to those kinds of organizations and their work going forward?

And the Supreme Court is not the only Republican-controlled federal court that's digging into the anti-abortion, anti-feminist aspects of the Republican Party's agenda.

So, the country's chief scientist/slash chief immigration officer slash chief financial regulator, yes, Matthew Kasmiric, a district judge in Texas, issued a banger of an opinion that struck down the 2024 Biden-HIPA rule protecting reproductive reproductive health information from disclosure to law enforcement investigators when legally obtained, including in other states, because what we really need right now is more policing women's reproduction.

And because Matthew Kesmerek is Matthew Kesmerek, he had to go a little fetal personhood.

So he wrote, quote, the 2024 rule relies on the Dictionary Act to deny legal status and rights to unborn humans.

In so doing, the 2024 rule is facially contrary to the Dictionary Act's terms, end quote.

Mike, can you remind us what fetal personhood is and why this is not just a threat in Texas?

Fetal personhood is the legal theory that would declare abortion itself unconstitutional throughout the entire country.

That's at bottom what it is.

To expand, it's saying that fetuses are persons under the 14th Amendment, and so their rights would trump women's rights under the 14th Amendment and their reproductive freedom.

A challenge to, say, New York state's strong abortion law as violating the right of a fetus to life.

If a court buys that, then down goes every other state protection for abortion in the rest of this country.

I would call it the reverse Roe.

For years,

for years,

the fight against Roe coming from Justice Rehnquist's pen and Justice Scalia's pen and the Federal Society

was a federalist argument.

It wasn't pro or anti-abortion, as

the justices in Dobbs insisted on in its decision.

No, it was a federalist issue.

It was something the Constitution was silent about.

The Constitution is silent on abortion, therefore it should be a state policy preference.

Or, in Kavanaugh's concurrence, Congress can weigh in as well.

But not courts, not the Constitution.

But

in the Dobbs briefing, you saw briefs by Robbie George and John Finnis, who are leaders of the more theocratic element of the right-wing legal movement,

who've been for years arguing for fetal personhood.

The court and Dobbs didn't want to go there, but that's clearly the next step in the right-wing anti-abortion movement to get by judicial fiat

abortion banned across the country as unconstitutional.

It's really the mirror image of Roe versus Wade for those who were ones screaming that Roe versus Wade was awful.

And anti-democratic.

Yeah.

And this isn't just happening in Texas, right, Mike?

No, it's not.

It's happening here in New York.

So last week, a trio of Republican-appointed federal judges on the Second Circuit Court of Appeals threw out a challenge to New York State's Reproductive Health Act, but gave future plaintiffs a roadmap to establish fetal personhood and have abortion declared unconstitutional.

There's a case called Dovey Hokel, and there was a plaintiff there who sought to represent a, quote, class of viable fetuses in New York against the Reproductive Health Act.

And the argument was that it violated fetuses' right to life and equal protection under the 14th Amendment.

Now, these judges said that this next friend of the class of fetuses she sought to represent

did not have standing because she wasn't able to actually say this fetus got this one fetus or several fetuses were directly impacted by the Reproductive Health Act.

But the court then went on to say that though she failed to identify or otherwise describe any class member in the viable fetus class that she sought to represent, it did say someone at some point, an expectant father, this is another quote, other relative, or perhaps even a non-relative, who describes the viable fetus they seek to represent with sufficient specificity, could walk through the courthouse doors.

Now,

this trio of Republican-appointed judges were coy about what they would rule if they're presented with a proper standing litigant.

But this is the roadmap through the courthouse doors to get into federal court to argue for fetal personhood, at least one of the ways.

So we're seeing it.

It has begun now.

It's wild because this is just three years after Dobbs.

And it is a reminder of how quickly the Overton window shifts and courts' role in that.

And

it's a matter of the composition of the Supreme Court, too, right?

If there weren't five justices ready to go full reverse row this time in Dobbs, you know, all it takes is a few more.

And that's what this movement is hoping for.

Meanwhile, Mandy Kazimarik, Emperor Amarillo, as I like to call him, is trying to still, we're waiting to see whether he's going to resuscitate the case against Mithra Pristone.

Yep.

And he would do so by saying that several states that sought to intervene that are not in Texas can be in his courtroom, even though the Supreme Court threw out the actual Texas-based plaintiffs.

And we're waiting for that to come out.

even as this Trump administration is considering whether to do what Kazimaric was looking to do by court through administrative action and revoke FDA's approval of MIFI.

Yeah, that's the case we've talked about with Emily Amek, where the state's theory of injury is that teenagers are not having enough babies.

So,

anyways,

that unfortunately, you know, is not the only thing happening in the lower courts as fallout from the Supreme Court's approach to sex discrimination.

So, we did an emergency episode last week on Skirmetti with Chase Strangio and talked about how there the Supreme Court or at least the Republican justices signaled that maybe a little sex stereotyping is a-okay totally kosher.

And longer time listeners might be familiar with the case of Brenda Andrew.

That is the woman who was convicted and sentenced to death on the basis of a trial that included some absolutely outlandish instances of sex stereotyping, so much so that the case has been described as an instance where someone, Brenda Andrew, was sex shamed to death.

So Brenda was accused of conspiring to murder her husband.

At trial, the prosecution introduced a bunch of evidence of Brenda's sexual history, suggesting a grieving widow wouldn't have dressed like such a slut, eliciting lurid details about her affairs, showing the jury her sexy underwear, also using that to suggest Brenda wasn't innocent and maybe was guilty of murder.

In what was truly an extraordinary win, Brenda Andrews' lawyers pulled off a nearly impossible feat, convincing the United States Supreme Court to issue a decision signing with a habeas petitioner.

After the U.S.

Court of Appeals for the 10th Circuit denied Brenda's habeas petition on the ground that there was no clearly established law prohibiting sex stereotyping, yes, you heard that right, the lawyers at Phillips Black convinced the Supreme Court to send Brenda's case back down to the 10th Circuit on the ground that the 10th Circuit had erred by defining clearly established law too narrowly.

Well, the oral argument in Brenda's case happened in the 10th Circuit.

The question in the case, again, is whether Brenda's trial was so infected with sex discrimination and sex stereotyping that her conviction and sentence violate the Equal Protection Clause of the Constitution.

Let's hear how some federal judges decided to engage with that issue.

The argument starts out this way.

Mr.

Greenfield?

Ms.

Greenfield.

Always love to hear a federal judge starting out a sex discrimination case by assuming there must be a man arguing.

And that's not all.

Peep this exchange.

It was relevant for him to say

that she had told him she hated her husband and wished he were dead.

You agree?

Correct, Your Honor.

That's a remarkable statement for a woman to say to a guy.

That kind of sounds like a sex stereotype to me.

But Mike, you're a man with a good personality.

What do you think?

Oh, man.

Yeah.

I wouldn't say that.

Nope.

Yep.

That is definitely just locker talk.

Okay, so we will be watching to see what happened.

Natalie Greenfield, who argued the case on behalf of Brenda Andrew, was phenomenal.

Definitely worth listening to the argument.

A little bit more on sex stereotyping.

The always classy New York Times decided that the day after Scrimetti was the perfect occasion to publish a long, excruciatingly long piece, second-guessing the decision to challenge bans on gender-affirming care for trans people and to have that case get to the Supreme Court.

I think the best commentary on the piece came from a Blue Sky account whose handle I'm now blinking on, which said, quote, if only trans people had been politically savvy and gave up their own humanity so that the Democrats could lose by one percentage point less, end quote.

Also, the piece is kind of a remarkable self-own because in some ways the story in the piece is how the law is forged in response to and against the backdrop of politics and public opinion.

The New York Times poses something along the lines of why take this case to the court when the public and states leaned into anti-trans backlash.

You know, that public opinion thing they're talking about, like the Times, the New York Times had a hand in shaping it with their obsessive anti-trans coverage.

So the piece is not quite the own they think it is.

And the New York Times coverage was cited seven times in the majority opinion in Skirmetti itself.

Okay, so

two other pieces of legal news.

Mike, we have to go back to the Fifth Circuit.

I'm sorry.

There was a recent Fifth Circuit ruling, although you're going to like this, Judge Jones, that managed to be both bananas and not bananas.

So I know you had wanted to highlight this.

So do you want to give a quick summary of the ruling and what wasn't bananas about it?

Sure.

So this was a challenge to the federal ban on guns in your schools.

And what's not bananas is the Fifth Circuit upheld the federal ban on guns in schools.

Whoa.

Right.

And that's always perhaps an open question with the Fifth Circuit.

You know,

the panel here was,

well, you know, that's why.

They gave it to one of the Trump judges to write, but it wasn't a fully Trumpy panel.

But, you know, Jim Ho would have had a ball with this.

Okay, so that sounds inoffensive slash harmless.

So, what was the bananas part of the non-bananas opinion?

The bananas part was the part where they had to follow the Supreme Court's bananas ruling in Bruin.

Is that enough alliteration for everybody?

I could have put a little bit more in there.

So, Bruin bananas.

Bruin bananas.

Those sound like bad bananas.

The decision from the Fifth Circuit, instead of just saying, you know,

bans of guns in your schools make sense, which is how these laws were upheld for all of American history until just the past decade, If that, after Bruin a couple years ago?

Is that instead, they had to go for the unfathomably stupid reason that a 697-year-old English law was sufficiently analogous to the ban.

And not just any law, the Statute of Northampton, which we literally created a Second Amendment drinking game around, given the Supreme Court's fixation on that law as like the lodestar of the Second Amendment.

No, that you heard the Statute of Northampton referred to over and over again, starting with the Heller decision in 2008.

I was in the Supreme Court room when that decision was handed down.

I was Nina Totenberg's intern, and I was listening to it, and I was jotting down the Toten turn.

I was jotting down

all of the things that Justice Scalia was saying and things that Justice Stevens was saying.

And I kept hearing the statute of Northampton and the fundamental right of self-defense in the home.

And

thus began this totally bananas Second Amendment jurisprudence that,

what, 14 years later, the Supreme Court codified in Bruin to make sure that any contemporary or even 100 or 150-year-old restriction on firearm use has to be measured according to either the Statute of Northampton almost 700 years ago or what the founders were looking to do in 1791.

And that's no way to run a country.

That's no way to have a democratic process.

And there's no way to keep people safe, period.

Yeah.

Just want to say we could use more members of Congress who know how to pick up disturbing signs from the federal courts, you know, before they actually materialize in a brewed bananas bombshell, and, you know, more generally to understand like what is going on in the federal courts.

Yeah,

hands raised, a raising hands moment of this episode, the second one.

So, you know, speaking of disturbing signs, there's been a deeply concerning trend, like more than one actually, among Donald Trump's judicial nominees.

So Jay Willis at Balls and Strikes highlighted how multiple Trump judicial nominees are answering questions related to the 2020 election results, which surprise, they are basically unwilling to say was a legitimate victory by Joe Biden.

So Senator Durbin asked nominees, quote, did President Trump lose the 2020 election?

To which all five nominees said the exact same thing, quote, President Biden was certified as the winner.

To the extent this question seeks to elicit an answer that could be taken as opining on the broader political or policy debate regarding the conduct of the 2020 presidential election, my response is that it would be improper to offer any such comment as a judicial nominee.

End quote.

Mike, this seems bad.

Yes, it's very bad.

This is the MAGA version of what we saw in Trump 1.0, where every Trump judge put forward would refuse to answer whether Brown v.

Board was properly, was rightly decided because they knew that was the next question would be, was Roe versus Wade rightly decided?

And they'd wanted to hide the ball on that.

So they just decided to not answer about Brown v.

Board.

But no, this is that version because anyone put forward by Trump has to pledge fealty lest they have their nomination pulled.

And they have to plead fealty to the animating mythology of this administration, of its second time around, which is dude never lost.

Now, you know, that might create some problems for the 22nd Amendment, because if dude never lost a second time, then he shouldn't be in office this time.

But these people aren't thinking that far ahead.

In fact, they're probably thinking far enough ahead to, I don't know, create a pathway for a dude to run again in violation of the 22nd Amendment.

Exactly.

Like if he's already serving a a third term, why not a fourth, fifth, sixth, seventh, eighth?

And there's a Trump judge in the 10th circuit who's already talking about that, too.

Oh, yeah.

So I like, you know, how you frame this as like a MAGA trend from Trump 1.0 to 2.0 because, you know, Trump exchanged a vice president based on their unwillingness to overturn the results of the 2020 election.

And he is now exchanging judicial nominees because, again, a bunch of federalist society judges refused to overturn the results of the 2020 election.

And it seems like he wants to replace those ones with Lawless Hacks, who would do something different in a future election.

Can I tell you what really deeply terrifies me?

Oh, please.

We can all agree that.

I love not being able to sleep at night.

Right.

We can all agree that whether Trump runs again and courts let him, or whether Vance runs, or some other Republican runs,

and say that person does not win the electoral college, we can probably all agree that J.D.

Vance being up on the rostrum on January 6, 2029, would do what Mike Pence refused to do on January 6th, 2021.

Now, there's been a law passed in the meantime

saying that one, a vice president presiding over the Senate as constitutionally required, must

go full ministerial in that moment that Pence did as well.

But you can also imagine that Justice Jackson warned us, right?

Yep, and you can also imagine that Vance will say, sorry, no, that law is unconstitutional.

And you can then see this case going to the Supreme Court because that law requires an expedited movement towards the Supreme Court.

This Supreme Court saying, political question, guys, fight it out.

And we are in, if we think we're in the bad place now, and if we think we're going to be in the bad place every single day of this administration leading up to then, and we kind of will given this administration, it gets worse and worse.

That's going to be a bad place.

And we need to keep our eyes open, not only in the courts, but all around, to make sure sure that should those guys try that stuff, we're aware of the anti-democratic forces trying to lock the voice of the people out of our own self-determination.

Again, just want to suggest it would be very helpful to have members in Congress who foresee the bad things the Republican Party might do rather than telling us all the Republican Party is a bunch of normies and refusing to see what is before their eyes until it blows up in our faces.

And speaking of the bad place, Mike, why did I learn about these responses from judicial nominees from a reporter at an independent media site rather than from fucking Senate Democrats screaming to high hell about this?

I think weren't Senate Democrats not there in the room a lot of this?

Yes.

Yeah, that was part of it.

Yeah.

That could be one of them.

But yeah, that's a credit to independent reporters being there.

Having been a reporter myself once, being in these rooms,

we got to respect and realize that those are the eyes and ears of our government when those in the government aren't sending the message out to the rest of us.

Yeah.

Okay, so we like to try to end these episodes on positive notes now by saying the things we enjoyed reading this past week,

or watching or seeing.

So

I am going to start and I will say the thing thing I enjoyed reading the most was that a judge has ordered the release of the Colombia protester Mahmoud Khalil from ICE detention.

This just broke as we were recording, and it's possible there will be additional developments, but I think that is a very welcome thing to have learned.

Mike, you want to add anything?

I do.

Oh,

for those of you who are people not watching on YouTube, Mike, what are you holding up?

I am holding up your book, Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes by Leah Littman, co-host of the podcast, Strict Scrutiny.

Some people have given me shit for using that as my author descriptor rather than like constitutional law professor or something.

No, it's always about the pod.

And I'm keeping this up here until you

turn off the video.

I'm just going to hold this here

so that your listeners who can know I'm holding this here and your viewers who see my holding it here will continue to see it and buy the book.

Really, it's been just astounding and amazing seeing how successful you've become and how influential you are.

Thank you.

So really, I'm proud to know you and I'm very grateful that you asked me to be here on the pod today.

And also, for those of you listening for you to read, I'd say check out mikesachs for congress.com.

Learn about the campaign, learn about what I'm about, and, you know, join us.

Mike, thank you so much for joining.

Thanks for having me.

Piece of housekeeping before we go: the Crooked Store has a bunch of great new merch.

Mike, you really don't have to keep holding the book as I'm reading this.

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Nothing warms our hearts hearts during this dark time like seeing our merch in the wild.

So when you wear it, make sure to snap a pic and tag at crooked media on Instagram so we can respectfully stan you.

Pick up your new favorite summer fit at crooked.com slash store.

Strict Scrutiny is a crooked media production.

Hosted and executive produced by me, Leo Lippman, Melissa Murray, and Kate Shaw.

Produced and edited by Melody Rowell.

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