The Lower Courts Punch Up

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Mr.

Chief Justice, as please the court.

It's an old joke, but when an arguing man argues against two beautiful ladies like this, they're going to have the last word.

She spoke not elegantly, but with unmistakable clarity.

She said,

I ask no favor for my sex.

All I ask of our brethren is that they take their feet off our necks.

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

We're your hosts.

I'm Kate Shaw.

I'm Leah Lippmann.

And I'm Melissa Murray.

And even though the temperatures are beginning to cool and the students have returned to school and the pumpkin spice is beginning to return to the land where it belongs, the Supreme Court hasn't yet started hearing oral arguments and they won't until the first Monday in October.

And that means we've got another few weeks of our summer schedule, which means we will start off this this episode with a news segment, and then we will bring you a conversation with a terrific guest, Yale law professor Justin Driver, who will be speaking with us about his new book, The Fall of Affirmative Action.

But first up, news.

And we've been off for two weeks, which means we have a lot to cover.

And since there is so much, we're going to basically group our discussion into a couple of themes.

First, dumb and dumber.

No,

the first one's actually quite good.

They're both good, but they're responding to the bad.

So the lower courts are continuing to hand down important rulings against the administration.

That's good.

And related, lower courts are responding increasingly explicitly, not just to POTUS, but also to SCODIS, including by expressing real frustration from what we are seeing or not seeing from on high.

We'll then talk about some of our favorite justices' recent public appearances.

JK, we do have to cover the recent public remarks by both Brett and Amy, though.

But let's start with the good, the pumpkin spice, if you will, which is the lower courts handing down rulings against the administration.

Because it's been another banner few weeks for the whole law thing, it means it hasn't been a great time for the administration in the courts.

And let's start with an important opinion from Judge Charles Breyer in the Northern District of California in the case involving the deployment of the National Guard in Los Angeles.

So that's what the case grows out of, Trump's decision to send the National Guard to LA back in early June to respond to protests over the administration's wildly aggressive immigration enforcement actions in that city.

Listeners may recall that we were actually on stage in New York during a live show when Breyer initially ruled against the administration, granting a temporary restraining order.

So let's roll that tape.

We might have to interrupt the game.

Oh no,

Judge Breyer decided he wanted to participate in said podcasts.

Okay.

We have a cameo from Judge Breyer.

We have a cameo from Judge Breyer who has ruled that President Trump's use of the National Guard in LA

was indeed unlawful.

Kate, Judge Breyer knows how scared you are of pop culture.

And he's going to your rescue.

I don't mean to be the fly in the punch bowl,

but this is clearly going up on appeal.

And I think Donald Trump right now is thinking, you'll be back like before.

It's my moment.

As Leah subsequently recounted, Judge Breyer found that the government likely violated the federal statute that concerns the prospect of federalizing the National Guard as well as violated the 10th Amendment.

At that point, the court declined to rule on an argument that the government had also violated a different statute, the Posse Comitatus Act, that prohibits the military from engaging in domestic law enforcement.

And as Melissa predicted, the Ninth Circuit later stayed that temporary restraining order, essentially finding that given an appropriately deferential standard of review, which requires only a colorable basis and good faith, it was likely that the president had not violated the relevant statute about federalizing the National Guard when, quote, the president is unable with the regular forces to execute the laws of the United States, end quote.

Okay.

Well, wrong on that the Ninth Circuit, but okay, that's where we were.

Judge Breyer then, in the district court, proceeded to actually hold a trial on the claims that this deployment violated the Posse Comitatus Act.

Remember, the statute he hadn't ruled on initially.

And a key part of the trial was devoted to this question of whether military officers were performing ordinary law enforcement functions.

And last week, in a scathing opinion, Judge Breyer found that the Posse Comitatas Act did apply, that no statutory or constitutional exception to posse comitatas applied, and that the kinds of actions these federalized forces engaged in were clearly law enforcement in violation of posse comitatas.

The court relied on evidence and testimony at trial that established that the government, quote, used armed soldiers whose identity was often obscured by protective armor and military vehicles to set up protective perimeters and traffic blockades, engage in crowd control, and otherwise demonstrate a military presence in and around Los Angeles.

The court described this effort and the president's announced plans to send the military into other cities as designed to create what he called, quote, a national police force with the president as its chief.

Pretty chilling stuff, all told.

So just to drive home how chilling the government's arguments were, Judge Breyer identified some of the things the federal government might be able to do under the kind of authority it is claiming, in particular, if the standard is as deferential as the Ninth Circuit seemed to suggest it was.

So he suggested that the government could say under enforcement of tax laws, you know, the fact that some people underpay their taxes would allow him to deploy the guards.

So too, the fact that businesses continue to engage in pollution in violation of the Clean Water Act or the fact that people show up to hospitals with symptoms of drug use, you know, and are violating federal drug laws.

And he could, and we're going to quote this one here, by quote, relying upon anecdotes from state election officials that voting machines are glitching or that fraud exists, could claim that he is unable to execute the election laws, end quote, and federalize and deploy the National Guard on that basis.

Just, you know, purely hypothetically, right?

I mean, it was very clearly a quite deliberate selection because this specter with elections looming, not just like the midterm elections, but the election on the California redistricting ballot initiative and the prospect of federalized troops in the streets, that's a terrifying potential combination.

And Breyer wants everybody to be clear-eyed about its possibility.

So the court enjoined the defendants from violating the Pasi Comitatus Act, essentially ruling that they could not engage in law enforcement activities, although they could, and a few hundred of them actually do remain in California and in Los Angeles.

So next stop, just as Melissa predicted with the temporary restraining order, next stop with respect to this opinion is clearly the Ninth Circuit.

And I think it's a really good opinion, and I do think it's a very scary case because it could give SCOTUS, if it it goes up the chance to ratify some of the president's i think most chilling assertions of authority and there's much more to say about this case but we have too much more to cover to linger so onward

onward next up if you need more evidence that this has been a very terrible very awful very bad week for the trump administration in the federal courts guess what i've got more news for you Donald Trump lost a very important case in, wait for it, the Fifth Circuit.

Yes, that's right.

The crazy one.

He lost in the crazy circuit.

The case, which was back before the Fifth Circuit after an encounter with the SCODIS shadow docket, marked the first time that a court of appeals had ruled on the merits of the Trump administration's efforts to use the 18th century Alien Enemies Act to justify expelling members or alleged members of the Venezuelan gang Trende Aragua.

The court found that on the record presented, the administration did not satisfy the requirements of the Alien Enemies Act, which gives the president a lot of authority, but only if there has been, quote, an invasion or a predatory incursion.

The Fifth Circuit concluded that this standard was not satisfied here.

There were three judges on the panel.

Judge Southwick, a George W.

Bush appointee, wrote the opinion and was joined by a Biden appointee, Judge Ramirez.

And in their opinion, they reasoned that, quote, a country's encouraging its residents and citizens to enter this country illegally is not the modern-day equivalent of sending an armed organized force to occupy, to disrupt, or to otherwise harm the United States.

There is no finding that this mass immigration was an armed organized force or forces.

End quote.

Inject that into my veins.

I cannot believe this needs to be said, but they obviously have a thesaurus and they know.

So as Melissa said, this opinion was to one.

The dissent was written by SCOTUS Hopeful Andy Oldham, who wrote a very long, very pick me dissent in which the words Article II and President actually appeared in bigger font than the rest of the words in the dissent, which, like, I'm joking, they did not, but that is actually how these guys see the Constitution.

And it was, you know, all in on deference to the president and executive authority.

I will give credit where credit is due.

The dissent did refer to our friend Steve Loddick as, quote, an esteemed commentator.

So I guess stopped clock right this time.

But I will say I genuinely didn't understand.

what this dissent was saying about what remained for courts to do, given the kind of deference he thought the president's determination was owed.

I'm just going to read one or two sentences that I just have looked at a bunch of times and I can't parse.

Quote, I am not arguing that the president has conclusive interpretive power to proclaim that AEA invasions include denying that baseball is our national pastime or double parking at the grocery store.

I am arguing only that consistent with 200 years of president, we must treat the president's extraordinarily fact-intensive application of law to fact as conclusive.

I mean, I think let's just leave it there.

It also had this like very confusing slash confused discursive about how even though the Supreme Court has said due process applies in the context of AEA expulsions, Judge Oldham is like, well, but what if it doesn't?

So yeah.

Having said that, he did, you know, deign to refer to our friend Steve Laddock as an esteemed commentator.

did want to acknowledge that he just took some utterly gratuitous pot shots at an article by Professor Lee Kowarski and Teddy Rave at Texas.

Their articles about how habeas cases can proceed as class actions, and the oldham footnote refers to them as, quote, the most ardent professional proponents of habeas class actions who rely on, quote, an ancient regime to make an argument favored in the faculty lounge, and quote, is just very tired and lame and misleading since he doesn't acknowledge the civil rules about when the rules may rather than must apply in habeas proceedings, but whatevs.

I mean, especially coming from the most ardent professional proponent of muscular executive power.

So there's that.

Anyway, the Trump administration didn't just lose in the Fifth Circuit, it also lost in the Ninth Circuit, where the court affirmed a lower court injunction that blocked Secretary Crispinome's efforts to terminate temporary protected status for more than 600,000 Venezuelan migrants.

But that doesn't mean that Secretary Noam's TPS withdrawal is blocked because the Supreme Court had already stayed the district court's injunction invalidating the TPS withdrawal.

It does mean that this issue and this case is likely to go up to the court's merits docket soon, since if the court doesn't grant CERT and decide the case, the district court's injunction would eventually go into effect.

And obviously, our good friends at SCOTUS would not let that happen.

So, mostly bad news for the Trump administration since we last recorded.

One exception is that the 11th Circuit stayed an injunction issued against the Florida Fascism Facility, also known as Alligator Alcatraz.

That injunction had required the government to wind down the facility.

This two-to-one Court of Appeals opinion out of the 11th Circuit stayed that injunction with two Trump judges in the majority.

Let me just briefly quote from the dissent: quote: Given the applicable burden on litigants who move for a stay, the deferential abusive discretion standard that governs review of a preliminary injunction, and the clearly erroneous standard that limits appellate review of factual findings, the stay motion filed by the state and federal defendant should be a relatively simple denial.

The majority, however, essentially ignores the burden borne by the defendants, pays lip service to the abusive discretion standard, and performs its own balancing of the equities.

You know, it really makes you wonder where judges like the judges and the majority on this panel picked up that they could just ignore factual findings, accord them no deference, and basically abandon the abusive discretion standard.

Where might they have learned that?

I learned it from watching you, Dad.

I mean, SCODUS.

Yeah, SCODUS as dad.

Yeah.

For sure.

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In more legal hot potatoes/slash legal shellgame news, the DC Circuit has sent yet more important matters to the Court of Federal Claims, concluding that litigants brought their claims in the wrong place.

This is just like what SCODIS, or at least some of SCOTUS, said in the splintered NIH case.

So, here, a 2-1 panel of of the DC Circuit with two Trump appointees in the majority and the opinion authored by another next top justice contender, Naomi Rao,

this 2-1 opinion concluded that recipients of the EPA's $16 billion in grants to combat climate change couldn't challenge the cancellation of those grants in federal court, instead had to go to the Court of Federal Claims.

So, the Trump administration here is terminating, again, more than $16 billion in grants, killing many research projects that were already underway, wasting all the the work that's already been done pursuant to those grants because planet Earth is too woke, literally.

No, it's actually just about efficiency.

That's efficiency.

Scrapping existing research is about efficiency.

Billions of actual work done, you know, materials in the ground, but nope.

And that's what the DC Circuit blessed, unless and until there is successful litigation in the Court of Federal Claims, which historically proceeds at a quite slow pace.

So in the meanwhile, they can just full steam ahead cutting health, the environment, and everything.

And a lot, a lot, a lot, a lot has been happening in the D.C.

courts.

So we're going to stay there for a bit.

So remember that whole Humphrey's executor thing?

Turns out the D.C.

circuit does know her.

This is a vague callback to an earlier discussion I had with Melissa's colleague Noah Rosenblum.

When the court decided Trump versus Wilcox, we said, Humphrey's executor, I don't even know her.

Anyways, I thought that was funny.

Humphrey's executor is the nearly century-old decision that says Congress can insulate the heads of multi-member commissions from being fired at will by the president.

That is also the case the Supreme Court has has ghosted on the shadow docket when it allowed the president to fire in violation of federal laws the heads of multi-member commissions, including the National Labor Relations Board, the Consumer Product Safety Commission, the MSPB.

And those cases involved independent agencies that look a whole lot like the Federal Trade Commission, but not the FTC itself.

Well, in this case, the DC Circuit declined to stay a lower court decision that had blocked the president from firing commissioners of the FTC, the very agency that was at issue in Humphrey's executor.

In the vein of lower courts just trying to do their job, the court wrote, quote, Humphrey's executor controls this case.

Recent developments on the Supreme Court's emergency docket do not permit this court to do the Supreme Court's job of reconsidering that precedent because we take the Supreme Court at its word, end quote.

I like the fact that they're basically suggesting the Supreme Court's job is just a gut precedent now.

That's how I read that line, anyways.

And unless and until you do it explicitly, you haven't done it.

Exactly, exactly.

Judge Rao dissented, SCOTA's hopeful, because of course she did.

And the Trump administration has already asked the Supreme Court to stay this ruling on the shadow docket, because of course they would.

In other rulings against the administration, although this one is a little more complicated, there have been more developments in the foreign aid case before Judge Ali.

Remember, this is the case where the district court concluded that the government illegally canceled and paused foreign aid.

These developments are complicated and they're intricate, but we think it's important to talk about them both because they are incredibly revealing about the government's conduct and motives and the Supreme Court's conduct and motives.

So bear with us as we unpack all of this.

Okay, so since we last recorded a two-to-one panel of the DC Circuit with two Republican appointees in the majority vacated Judge Ali's injunction, i.e., the DC Circuit undid the injunction that had invalidated the administration's cancellation of foreign aid.

We'll explain explain the panel's reasoning in a second, but after that initial DC Circuit panel decision, the DC Circuit then amended its panel opinion and order in ways that seemed designed to avoid having the case be taken up on bank, i.e., going to the full DC Circuit.

And indeed, the full DC Circuit denied the petition for en banc review after the opinion and order had been amended.

So, if you want to go deeper on this, Chris Geidner had a really great write-up of this at LawDork.

We're only able to summarize what happened because it's really everything, everywhere, all at once.

But in brief, Judge Ali had concluded that the plaintiffs, foreign aid recipients, could challenge the president and U.S.

Agency for International Development's cancellation of certain grants and contracts on the ground that that cancellation violated the Impoundment Control Act.

That's a federal law that prohibits the president from declining to spend funds that Congress has appropriated.

A two-to-one panel of the DC Circuit, that is that initial panel, concluded that the plaintiffs lacked what's called a cause of action, basically permission to bring suit to raise their claims challenging those funding cancellations.

The initial version of the opinion had suggested there was basically no legal claim the plaintiffs could raise.

So it said any review of these grant cancellations was precluded under the Administrative Procedure Act, but the revised opinion says only that the plaintiffs lack a cause of action to enforce the Impoundment Control Act.

That leaves open the possibility that the plaintiffs could challenge the funding cancellations on the ground that they violate other federal laws, including the appropriations bill that had appropriated the money to USAID.

So at the same time that this is going on, that is that the administration is challenging the preliminary injunction in the D.C.

Circuit, they also asked the Supreme Court to stay the preliminary injunction.

And they did so in part because had the D.C.

Circuit granted on banc review, that would have vacated the DC Circuit panel opinion that had vacated the district court opinion.

So the district court opinion would go back into effect.

Government would have been again subject to the preliminary injunction requiring them to pay out these funds.

Confused yet?

Good.

Okay.

The government's behavior at this point is, to put it lightly, appalling, hideous, terrible.

The government did not seek a stay of the preliminary injunction in the DC Circuit when it appealed that ruling.

Then the government insisted that it needed a stay because of the timing of the DC Circuit's decision, which the government itself had requested.

And they told the DC Circuit that they needed a ruling by August 15th.

But then the government comes back and says, oh, actually, this timing doesn't really work for us and puts us in this predicament where the preliminary injunction might remain in effect.

So then the government demands a stay from the DC Circuit and the district court.

And then they just run off to the Supreme Court.

Fix it, daddy.

So what happened?

The DC Circuit declined declined on bank review, which meant the government didn't need to stay in the Supreme Court since the DC Circuit panel opinion vacating the injunction stood.

But, you know, the case went back down to the district court to figure out if the plaintiffs could challenge the government's actions on other grounds.

And Judge Ali acted with astonishing expediency and care and said they could.

So he rejected the administration's insane pocket recession theory, saying it is impossible to square with the statute and that freezing funds requires action from Congress, not like like a special message from the president.

He also issued this footnote that called attention to the government's conduct

in trying to, I don't know, get the case before the Supreme Court on an expedited basis where they could try to say the D.C.

District Court, they're doing all this horrible stuff and making our life so hard.

So, you know, the footnote said the court expresses concern that defendants' litigation strategy in this case appears crafted with the specific goal of ensuring review at the highest level level occurs in an emergency posture.

To the extent defendants have time pressure and billions of dollars to obligate, that is not an emergency, but a circumstance of their own creation.

Those are excerpts from the footnote, but if this is the sort of thing any other litigant besides the federal government had done, there would be a show cause order for sanctions, honestly.

Does make you wonder why the federal government thinks that it really needs to just go to the Supreme Court on an emergency basis to get what they want.

I wonder.

It's almost like they are manipulating and making up the facts.

All right.

Last update in the first portion of our news segment: big losses in the lower courts.

We haven't actually had a chance to discuss yet, although it happened over a week ago, the federal circuit's ruling invalidating many of Trump's tariffs.

In this case, seven of the 11 participating judges voted to strike down the tariffs at issue.

These were tariffs announced in five separate executive orders, with the court finding these EOs unlawful and exceeding the scope of the president's authority under the International Emergency Economic Powers Act, or IEPA.

These executive orders were predicated on declared emergencies, a number of them, one involving the southern border, one involving the opioid crisis, also referenced to trade imbalances as emergencies.

All of these things the president claims represent a threat to the national security and economy of the United States.

And pursuant to those

announced emergencies, the president announced huge sweeping tariffs on goods from a number of nations.

So, in this opinion, this majority of the federal circuit found that IEPA just did not give the president the authority to issue tariffs like this, particularly given the major questions doctrine.

Oh, snap!

Four of the seven judges made clear in a concurrence that they don't believe the president has any authority under IEPA to impose the tariffs.

The court remanded the case back to the Court of International Trade, that is the court, the lower court that the case arose from, to determine what the appropriate remedy ought to be here, making clear that its ruling would not go into effect until October 14th.

And predictably, the administration has run to Daddy SCOTUS requesting expedited consideration and November oral arguments.

The CERT petition, as you likely would expect, is icon-level crap.

I'll just read, quote, the stakes in this case could not be higher.

The president and his cabinet officials have determined that the tariffs are promoting peace and unprecedented economic prosperity.

These tariffs present a stark choice.

With tariffs, we are a rich nation.

Without tariffs, we are a poor nation.

End quote.

It then goes on to quote Solicitor General John Sauer's letter to the Federal Circuit, in which he declared that the United States, without the benefit of tariffs, are quote, a dead country.

End quote.

I remember we read from that letter and I was like, I cannot believe this is a Solicitor General, but at least, you know, it's a letter to the Federal Circuit.

He hasn't filed anything this crazy at the Supreme Court yet, but oh no.

just you and Hashem.

And he'll literally recycle the same thing.

Like he's quoting a letter he wrote himself.

He was like, this is so good.

I'm going to check it out for another spin.

I cite myself.

Yeah.

I'm also so glad we have our resident thespian back to do these dramatic readings because it just does not hit the same

when it's not you, Melissa.

So true.

Thank you.

I appreciate that.

So, okay.

So in this tariff ruling, Judge Toronto wrote a dissent for himself and three others, arguing that the federal statute says the president can regulate in the face of an emergency and that the statute's prerequisites are satisfied here.

Steve Vladdick had a great write-up of this issue at 1 First Street,

in which he suggested that, you know, this case is going to be added to the docket as well as others.

And this was already a very full term.

And the addition of this plus now likely Alien Enemies Act, you know, the temporary protected status case, maybe a funding case, will be wild.

And yeah, that is going to be a very trumpy term.

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Now, moving on to our next segment, in which we do a deep dive on all of the lower courts expressing frustration with SCOTUS.

So, first up, in the District of Massachusetts, Judge Young issued a heartfelt, or maybe it was just tongue-in-cheek, apology to Justices Kavanaugh and Gorsuch for his inadvertent defiance of their fake and non-existent shadow docket opinions.

I'm going to say it was tongue-in-cheek.

I've really thought it is impossible.

50-50 could be tongue-in-cheek, could have been sincere.

Wait, describe what he said.

Yeah.

Okay, okay.

So, Judge Young, for context, is presiding over the case involving the NIH funding freezes.

And Justice Gorsuch, joined by Justice Kavanaugh, really went after Judge Young on the shadow docket, accusing him of essentially disregarding SCODA's precedent and suggesting that he was part of an epidemic of lower court defiance.

So, Justice Gorsuch wrote this: quote, this is now the third time in a matter of weeks this court has had to intercede in a case squarely controlled by one of its presidents.

All these interventions should have been unnecessary, but together they underscore a basic tenet of our judicial system.

Whatever their own views, judges are duty-bound to respect the hierarchy of the federal court system created by the Constitution and Congress.

Personally, I think he should have just cited South Park.

You will respect my authority.

Well, also, I was just going to say, Neil Gorsuch is a messy bitch who loves the drama, right?

Like, he is making up this conflict.

He decided he needs a plot line, right, in this season of The Real Housewives and whatever, dude.

And we will have the clapback from Judge Burroughs momentarily, which was pretty epic.

But so Young, in his very difficult to read response, so the case is back now before him, the case that engendered this,

you know, kind of nasty.

A bench slap, if you will.

A bench slap.

From, yeah, from the bench to the bench.

It's back before Young.

And at a pre-trial conference last week, he said, quote, it is incumbent upon me on the record here to apologize to Justices Neil Gorsuch and Brett Kavanaugh if they think that anything this court has done has been done in defiance of a precedential action of the Supreme Court of the United States.

He went on to say, quote, I stand corrected and those justices and the entire court can be assured that this court will absolutely obey the precedential decisions of the Supreme Court as I have have done and tried to do throughout all my judicial service.

Now, I made it sound a little snarky.

I don't know what the tone was because I don't think we had audio.

So, I mean, I do think the precedential decisions like might have been a considered choice.

Well, and also, as I have done and tried to do throughout, right?

Per my last email,

which is

I'm pretty sure Young has been on the bench like way longer than Gorsuch and Kavanaugh.

And so, I think that probably wasn't, yeah, accidental either to like quietly invoke his decades of judging, like for reals.

Like, back when judging was more like a law thing um he's like i'm not new to this i'm true to this

um not unrelated is lawrence hurley had an absolutely stunning piece in nbc that included federal judges talking on background to journalists basically shit talking the supreme court airing their frustrations like judges like one or two of them no like 10 of them so a dozen federal judges appointed by democratic and republican presidents including Donald Trump himself.

It was like, basically, Lawrence Hurley was Andy Cohen.

And all these judges were like, it's time for the real housewives of One First Street.

Like, you're a bitch, you're a bitch.

Well, not even Andy Cohen.

This is like when the real housewives.

talk to the press behind each other's backs and are like planting stories.

That's more of this because, so 10 of the 12 judges said the Supreme Court, this is under the story, quote, should better explain those rulings, end quote, referring to the shadow docket.

But the piece continues, quote, they also have a new and concerning effect, validating the Trump administration's criticisms.

A short rebuttal from the Supreme Court, they said, makes it seem like they did shoddy work and are biased against Trump.

Then there are a range of quotes talking about how what the Supreme Court has done is inexcusable and going so far as to say they don't have our backs and somebody is going to die, right?

Talking about the escalating threats against judges and how the Supreme Court hasn't, you know, done anything to temper that.

And they accuse the court of you know, assisting the administration in undermining the lower courts with, you know, some judges talking about them being thrown under the bus.

And, you know, one judge made the helpful suggestion that the Supreme Court should say something like, quote, let's be clear, it's not some crazy opinion, and this judge is not a monster.

It seems reasonable.

To be fair, this was a story in which Hurley reported having talked to a dozen or so judges appointed by a range of different presidents.

So they're Democratic and Republican appointees, and there were some dissenters among the groups.

So one Obama judge noted that the whole Trump derangement syndrome is actually a real issue.

And as a result, judges are mad at what the president is doing or the manner that he's going about doing these things.

And they are, according to this judge, sometimes forgetting to stay in their lane.

Another judge also noted that the Supreme Court has an obligation to explain rulings in a way that the public can understand and that when the court frequently rules for the administration in emergency cases without fully explaining why they are doing so, it sends a strong signal.

And, you know, the court has had strong left-leaning majorities in the past, but what's really different now is the role that these emergency cases are playing in the public discourse.

So, I have some

comments.

Like, what were those strong left-leaning majorities plural?

Yeah, I mean, like, this must be a really old judge

in the 1950s.

Right.

I'd really like to hear more of this, but this story is stunning.

It is so difficult to get judges to talk to reporters.

100%.

The fact that so many of them did so, and the fact that they were willing, again, to speak to them about concerns about the Supreme Court.

I mean, that is a sign.

We've talked about how Justice Jackson is sounding the alarm from inside the Supreme Court.

These are other federal judges also trying to raise the alarm about what is happening with the Supreme Court.

Yeah.

So So at the same time, the Chief Justice, and actually through his counselor, like his chief of staff type, Robert Dow, who's actually also, I think, still a sitting federal district judge in Illinois.

He was, and then he became the counselor to the chief justice, but I do not think he's relinquished his seat.

So I think he's technically still on the district bench.

Wait, wait, how do we live in this world where people just have like eight different federal jobs?

Like Marco Rubio, this guy, like this is two.

Rubio's Rubio's all like five at this point.

Yeah, it's this is bonkers to me, but whatever.

Okay.

But I do think it might be relevant here.

So, so he, in a speech at the Sixth Circuit Judicial Conference, was at pains to clarify that the Chief Justice's criticism of rising threats against judges in his year-end report had nothing to do with Trump and that the Chief Justice really wanted to stay above the political fray.

Now, doing such a great job at that, John.

Just a total of the day.

You're doing great, sweetie.

You're doing great.

So Dow did apparently give a very sobering presentation about the rising threats to judges and did not downplay the seriousness or severity, but went out of his way to make clear that when the chief tried to draw attention to and raise alarm about this, he was not talking about Trump.

And in fact, he drafted all of it before the election.

Okay.

Anywho.

I think the upshot of all of this, the theme, the through line that you might take from this is that I think the district court judges have had it.

And case in point, we got a very important ruling from District of Massachusetts Judge Allison Burroughs.

In that ruling, she found that the administration had acted unlawfully when it rescinded Harvard University's funding.

And the bottom line is, she said, quote, It is difficult to conclude anything other than that the administration used anti-Semitism as a smokescreen for a targeted, ideologically motivated assault on this country's premier universities and did so in a way that runs afoul of federal law.

She sided in the main with Harvard's claims that the administration's funding moves had violated the First Amendment as well as Title VI of the Civil Rights Act and were arbitrary and capricious under the Administrative Procedure Act.

Okay, so the clapback that we referenced a couple minutes ago came in just a hell of a footnote in which I think Judge Burroughs

are using footnote nine saddle.

referring to footnote four of Caroline Products, which is referred to as the most famous footnote in all of constitutional law.

And Judge Burroughs has really given that a run for its money.

It's really quite an epic footnote, in which he really does kind of seem to be speaking for the entire lower federal judiciary.

And it's actually so good that I think we're going to read it in full, although it is long.

So we will just break it up and take a listen.

Footnote 9.

The court is mindful of Justice Gorsuch's comments in his opinion in APHA and fully agrees that this court is not free to defy Supreme Court decisions and is, in fact, duty-bound to respect the hierarchy of the federal court system.

Consistent with these obligations, this court, and likely all district courts, endeavors to follow the Supreme Court's rulings no matter how misguided it may think them to be.

That's the quote of a Supreme Court opinion.

Actually, it's not just her words.

She continues, that said, the Supreme Court's recent emergency docket rulings regarding grant terminations have not been models of clarity and have left many issues unresolved.

California, that's an earlier case, was a four-paragraph percurium decision issued in the context of a stay application.

It cited Bowen as good law, stated that the Tucker Act gave the Court of Federal Claims jurisdiction over contract claims against the federal government, and then stated that the district court likely lacked jurisdiction to order the payment of money under the APA without purporting to explain how the case was distinguishable from Bowen or other related long-standing precedents.

The library is open because that was an epic read.

And she's not dead.

She's just getting started.

She's limbering up.

There's more.

This is a marathon, not a sprint.

It continues: quote: Then in APHA, four justices thought grant termination cases belong in full in the court of federal claims, and four justices thought they belong in full in federal district court.

And the decision was controlled by the vote of a single justice.

The outcome, which no party had requested, was thus inconsistent with the views of eight justices, and again provided little explanation as to how Bowen, which the controlling concurrence again cited as good law, applied or was distinguishable.

TLDR, what the fuck are you doing?

And once again, she's not done.

The footnote continues: quote, this court understands, of course, that the Supreme Court, like the district courts, is trying to resolve these issues quickly, often on an emergency basis, and that the issues are complex and evolving.

Given this, however, the court respectfully submits that it is unhelpful and unnecessary to criticize district courts for defying the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.

End quote.

Middle finger to all the haters.

Yeah.

I was not familiar with the name.

I now am.

Well, I just, I mean, like, this was like, I'm sorry, do you, you must not know about me.

I'm not the one and I am not the two yeah

and i just want to underscore you know this in the nbc story

i love right like highlighting you know what the district judges are doing but like it is significant because the fact that they are willing to go out on these limbs is a sign of just how mess

and bonkers the supreme court is i mean judge burrows is you know the kind of

very centrist middle of the road judicial nominee that Democrats appointed, right?

She is not some progressive warrior.

She's like a U.S.

attorney partner at a law firm, right?

She's not some movement conservative lawyer, right?

Of the kind that Republicans appoint to the bench.

And again, the fact that they have pushed these judges so far is really an indication of just how out there they are behaving.

There is so much of this borough's opinion we could read.

I wanted to include this, which I felt like was very subtle shade as well.

Subtle.

Well, I appreciated it.

A little more subtle on the footnote, which wasn't subtle.

Right, exactly.

So this excerpt was a callback to Justice Jackson's dissent in that National Institutes of Health, you know, APHA case, when Justice Jackson had said this, which she was describing the Supreme Court's work, quote, is Calvin ball, but with a twist.

Here is Judge Burroughs, quote, it may well be that these differences would not distinguish these claims in the eyes of the Supreme Court, although that remains unclear under existing case law.

But this is not Calvin Ball, and there are rules, and quote.

Basically, like I'm doing the law thing, you guys aren't.

It's not my job to predict what crazy shit you all are going to do and come up with a justification you can't even bother to come up with on your own.

Yeah.

Yeah.

Okay.

So, and now, speaking of the galaxy brain geniuses on the Supreme Court, we will now talk about recent appearances by Brett Kavanaugh, who spoke at the Sixth Circuit Judicial Conference, as well as Justice Barrett.

So, Justice Kavanaugh announced at the Sixth Circuit Judicial Conference that he has figured out how to fix the shadow docket.

I'm a listening solution.

I'm listening.

Call it the interim docket.

Yeah.

How long do you think he had to workshop that until he got to it?

Honestly, probably the last 18 months.

I wonder if he had a lot of lists.

Do you think he had a lot of lists of candidates that he's been like marking up and

decided?

Definitely.

I mean, you know, while we're at it, like, why not call it the we're perfect, we're beautiful, we're Linda Evangelista docket.

Like, then there would definitely be nothing to criticize.

Like, I have my own suggestions, right?

Like, Shadow Docket shit show or Scottish shit post.

So his point is just sort of like, we're just riffing here.

Like, call it the end of it.

Like, all of this could change.

Nothing is permanent.

it's it's just kind of the purgatory docket well he basically goes he says that

yeah so so listen it's it gets worse actually so he's not only saying like if we label it something different maybe people will be nicer to us he kind of like gives the game away so this is like the latest installment of the kind of brett kavanaugh can't help telling on himself like series because his remarks included the following admission he says The shadow docket, nay, the interim docket orders are cryptic because five of them can't, quote, reach a consensus or a compromise on a particular issue that might be difficult.

So he says that, like with his mouth, he says that.

Well, and it's just like, how are lower courts supposed to figure out your secret reasons, right?

And among all of your different secret reasons, figure out which ones are controlling.

Because if there is no majority, like you have to pick the narrowest one and you're not even told what any of their reasons are.

This header.

But if you guess wrong, you'll be screamed at by Garsage.

And this big, like, oh my god he admit it uh energy like the meme if you don't know it just google that image and that's brett kavanaugh if justice kavanaugh is accepting other suggestions for what we might call the shadow docket i'm going to offer respectfully for his consideration the following how about the Deion Warwick psychic friends docket where you basically just divine what they mean by using by calling the psychic friends i like deion warwick too much, so I would go with Mistress Cleo or something like that.

I think that works.

I mean, it's basically what he's saying.

Like,

it could all change at any point.

Just you got, you gotta, you gotta follow the vibes.

You gotta be in tune with the vibes.

Yeah, you just gotta be vibing out with them.

Just do the vibe check, right?

And

don't harsh mellow.

Stop asking big questions.

Right.

And I just want to say part of what makes, you know, the Gorsuch-Kavanaugh tirade against district courts, you know, now laundered through Kavanaugh's meaningless civility feints

so appalling is that a mere four years ago, one Samuel Alito was lecturing people about how shadow docket actions and orders aren't precedential.

So we don't have actual audio of those remarks from his speech at Notre Dame because the speech is not on the internet.

But happily

because of a still free-ish press, right?

Write-ups of it are still available.

Kavanaugh is like a perfect encapsulation of civility means I can say anything I want about you, and you have to take it on the chin and smile and tell me what a nice guy I am.

Yeah.

Also, just returning to his struggles, like you can't count to five, you know, I vaguely recall Samuel Alito telling us that the entire disciplining force of appellate courts was working with and finding agreement with your colleagues.

Like that was part of his rant against district courts in the birthright citizenship case.

And yet Kavanaugh says, quote, consistency is a a lot easier when it's one person than when it's nine, end quote.

And it's like, he's like, well, yeah, anyways.

Well, he did say, I think this is true.

He's like, we can do better.

And I was like, that's right.

You could.

Accurate dot gifts.

Want to see some returns on that, but

I mean, he's not wrong.

Acknowledgement is an important early step.

So I guess we do have to give him a tiny grain of credit.

True.

Okay, just a couple more things to cover.

Exciting news.

Justice Barrett has begun her press tour for her forthcoming book, which clearly seems designed to cause Leah to pull out every hair on her head.

CNN had an early report.

It sounds as though in this book, Barrett defends overruling Roe with some recycled talking points about letting the people decide.

We really implore Justice Barrett to keep this in mind when she is asked to strike down the Voting Rights Act.

She also invokes the tired trope that RBG criticized Roe, Ergo.

It was fine for them to overrule it.

Melissa and I, I think, take on both of those arguments in our Dobson Democracy article in the Harvard Law Review, but just suffice to say, we don't find them convincing.

She also defends what I think might be described accurately as creptastic decision making.

So here's a quote.

Before I joined the court, I was sometimes frustrated by an opinion's cryptic language or its failure to resolve fairly obvious points.

Now, Now, I better appreciate that glossing over the issues is often deliberate.

This is some real Brett Kavanaugh energy, ma'am.

Like, we're doing it on purpose.

We're being cryptic and opaque on purpose, and

you'll enjoy it.

But you lower courts, you have to know what we mean

and all of our opacity.

Correct.

Yeah, yeah.

She really seemed to be on the same page as Coach Kavanaugh because she also made an effort to defend the shadow docket.

Quote, as long as litigants continue filing emergency applications, the court must continue deciding them, end quote.

Like, look what you made us do.

Also, nothing tells you you have to grant them.

If you can't fucking agree on a rationale, maybe they haven't shown they're entitled to extraordinary relief.

It seems so obvious, and yet they're not.

And yet, it escapes them.

Yes.

Justice Barrett did take the time to savor some of the big wins.

She wrote how, you know, one time when other justices quickly joined a particularly tricky opinion of mine, her chamber is celebrated with impromptu shamps.

Which opinion was she celebrating?

We don't know.

I think it's Vidal versus Elster.

Could be.

The Trump Too Small

case.

Yeah, just for those who don't remember the name.

It is fun to say.

I was thinking about it.

The timing doesn't work for it to be her majority opinion in Casa, but like the villain energy would just be boundless if she is, you know, she's popping the champagne cork to celebrate removing a key vehicle vehicle for vindicating core constitutional rights for babies, for literal babies.

But I don't think it was that one.

She had a weird Computer Fraud and Abuse Act majority early.

I forget the name of that case.

I thought about Murphy versus Missouri.

Oh, but that was such a weird opinion.

I don't know.

Anyway, there's more to this.

What about Holl versus Burkean, Indian Child Welfare Act?

Oh, yeah.

Okay, I guess she can get a little shan.

I grudgingly

don't mind her having champagne because it dodged, that dodged some really terrible bullets so well you assume that's the one she cracked open the bottle for yeah yeah if she did yeah yeah so i'm going with bidal versus elster okay

could she toast

wait who who who i'm trying to remember did the trump do small guy i think he lost so she'd be toasting the president toasting the inability to mock trump small hands yeah

yeah no this this checks

that's what i'm going with anyway all right all right um justice barrett it should be noted decided to launch this particular book by giving an exclusive interview to noted journalist Barry Weiss.

And subscribers to Weiss's free press had early access to it in a big event.

So there are some highlights.

We are not early access subscribers, but we did manage to get a readout on this interview.

So here are some highlights.

First up, If you were worried, rest easy, folks, Justice Barrett assures us that we are not in a constitutional crisis.

She says, quote, I think the Constitution is alive and well.

I think the country remains committed to the rule of law.

I think we have functioning courts.

Okay, girl.

Okay.

Functioning lower courts.

But we have to talk about the lightning round, right?

So at this lightning round, Weiss asked Barrett to describe each of her colleagues with one word.

Should I, Melissa?

Let's go through that.

Okay.

All right, you be Barry Weiss and I'll be.

okay.

Okay, I'll feed you.

I'll feed you the justices.

Okay.

Roberts.

Chief.

Thomas.

Laugh.

Oh, my God.

I want us to do one.

Sorry.

Okay, sorry.

I was going to stay on track.

But at some point, we need to do our own one-word descriptions of them.

But okay, back to Barrett's.

Alito.

Grandfather.

My eyes rolling so far back in my head.

Sotamayor.

Lively.

Kigan

analytical.

If you're not watching this on video, you are missing an Oscar-worthy performance by one Melissa Murray.

It's true.

Gorsuch.

Out West.

Oh, wait, that's two words.

Two words.

That's two.

Two words.

My bad.

All right.

Kavanaugh.

Sports.

Jackson.

Hmm.

Actor.

Broadway.

Oh.

And

that's a good thing.

Where to even start with this?

I mean,

I took her comment about Alito to basically be like retire bitch,

you know,

you know, the grandfather reference.

It's obviously

files is really the bipartisan consensus that we've all been waiting for.

Yes.

Yeah.

You know, the obvious, I don't know,

disdain, like lack of respect, right?

She showed her junior motion.

To be fair, I may have laced that with more disdain.

Like, I didn't listen.

Well, we know

it was reported as having a long pause.

Yeah.

Right.

And comparing that with what she said, right, about the other justices, I don't think it is unreasonable to infer from that, right, like a lack of respect for her colleague, right, who is doing a better job than anyone, right, at exposing and calling out the Supreme Court's bullshit.

I will just say, you know, so she, for listeners who don't remember this, she did a very brief cameo in the And Juliet production on Broadway.

And I presume.

She being Justice Jackson, not Barbara.

She being Justice Jackson.

Okay.

No, nor Amy Coney Barrett.

No, no, this is Justice Jackson.

They could never.

No.

And

Scalia and Ginsburg used to do cameos at the opera all the time.

Like, not even cameos, like, actually play little roles.

I mean, cameos, I guess.

But, like, this is the thing they did.

They got dressed up, they got on stage, they did a little opera.

It's not that big a deal.

It made me wonder whether in like the right-wing media ecosystem that Barrett, I think, inhabits, they were like, it was so improper.

She like went to Broadway and she shouldn't have done that at Supreme Court justice.

And Juliet is like a kind of reimagining reimagining of Romeo and Juliet.

There's like a young woman of color who plays Juliet.

Juliet's like this empowered character who like doesn't offer self in, you know, lovelorn sort of crisis.

And it's, and there's like a non-binary character.

And like, it's a play that I can imagine, like, the right-wing ecosystem being like mad at.

And

I didn't know they were.

But there was just so much in that, like, that's the thing that sprang to mind in like this, these three years of like fierce dissent and invocation of like Reconstruction thinking and history into constitutional jurisprudence.

Like, she's like, I thought about this cameo

in like this jukebox musical on Broadway.

It was just like, just so wildly like belittling, you know?

One more quick thing.

We often celebrate, obviously, on this podcast, and people elsewhere do as well, like Justice Jackson being willing to talk about what the Supreme Court is doing.

But I think part of what this Barrett thing reveals is like there are costs right for people right who are putting themselves out there to draw attention to what is happening and

I don't think like the Republican justices and the Republican kind of ecosystem will forget that Justice Jackson has done this stuff right a few years down the road even as or if like people who support her do and

Yeah, I just, I feel real like sympathy and empathy for her, like having heard this as well.

I think the way she can deal with this is to basically do what Justice Ginsburg did and invite one of her conservative colleagues to join her in her next Broadway cameo.

And my suggestion would be for Justice Gorsuch because he's giving such frustrated theater kid vibes.

Like he wants to do it.

So just like bring him along, let him be Romeo.

Like a little sing, a little dance.

He'll be fine.

And then they can't, then she's a single person.

We'll skip that performance.

Yeah, she's like, yeah, that's good.

Good advice.

Somebody, somebody get KBJ this advice.

stat

a little broad

um

exactly

so that's all for this news segment we will be back shortly with our interview with justin driver about his new book the fall of affirmative action but first

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We are delighted to be joined today by Justin Driver, the Robert R.

Slaughter Professor of Law at Yale Law School.

We're huge fans of Justin's first book, The Schoolhouse Gate, and we're excited to talk to him about his important new book, The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education.

It pulls off one of the most difficult combinations in being both accessible and nuanced.

Justin, welcome to Strict Scrutiny.

Thanks so much.

I'm really glad to be with you all.

Okay, Justin, let's dive right into this triple sow cow, the perfect combination of accessibility and nuance.

The book traces how the Supreme Court's June 2023 ruling in Students for Fair Admissions versus Harvard and the University of North Carolina dismantled four decades worth of precedent that had credited the limited use of race in higher education admissions.

You describe SFFA as, quote, the most significant judicial opinion involving race in education since Brown versus Board of Education invalidated segregation seven decades earlier.

But you also observe that, quote, despite its significance, SFFA remains profoundly misunderstood.

Can agree.

Let's start with that.

At its core, what did the court say when it decided SFFA?

And how has the decision been misunderstood, mischaracterized, or manipulated in today's landscape?

Yeah, so the SFFA decision eliminating affirmative action was cataclysmic, deeply misguided in my estimation.

It also did not sweep nearly as far as the Trump administration is attempting to suggest that it swept.

That is to say, Chief Justice Roberts' opinion says that what's forbidden for universities to do these days is to consider race qua race.

Those are the three most important words in the opinion, race for the sake of race.

Universities have interpreted this to

prevent them from accessing racial boxes when they are considering applications, and that would be race qua race.

There are other things that might fall into that category.

What remains permissible for universities to do, though, is to make decisions with an eye toward increasing racial diversity.

That is not prohibited, even though the Trump administration sent out a letter on February 14th of all days.

Happy Valentine's Day.

Yeah, exactly.

Saying

if a university decides to say, get rid of standardized test scores with an eye toward boosting racial diversity, that's prohibited.

That claim is belied by the SFFA versus Harvard opinion.

I think it's so important, by the way, to begin where you began, because it has led to a profound downfall, a plummeting of black enrollment at our nation's finest universities.

Okay, so we definitely do want to come back later in the conversation to these kind of on-the-ground consequences of SFFA.

But maybe to take a step back first, as I think kind of the opening characterization noted, the book is like both very practical and also theoretical conceptual.

So maybe let's kind of start with what you are arguing about the opinion's understanding of equal protection and how it both either breaks from or draws on earlier strains in the court's equal protection jurisprudence, right?

Because just, you know, for our listeners, right, what the court says is the equal protection clause forbids universities to do something it characterizes as using race qua race.

So basically, I guess maybe I'll ask you to talk a little bit about your earlier article, The Strange Career of Anti-Subordination, which you use in the book to kind of highlight how equal protection doctrine and higher ed admissions policies policies have long reflected this deep tension between two competing interpretations of equality, right?

So on the one hand, anti-classification, that is like the equal protection clause forbids government to ever classify using race.

And then the other, anti-subordination, something like the idea that what the equal protection clause outlaws is government you know, furthering racial domination, subordination, hierarchy, but not

it doesn't forbid all action by government that uses race.

So can you say more about those labels and categories and sort of how they operate in your view in the SFFA opinion?

Sure.

To begin where you began, SFFA does mark a sea change.

The Supreme Court of the United States had repeatedly considered affirmative action and its constitutionality and repeatedly upheld it, often with ambivalence.

in Bakke itself, in Gruder in 2003, and in the pair of Fisher cases.

Nevertheless, the Supreme Court had repeatedly said that it was permissible for universities to consider rais qua race.

The traditional divide in the Equal Protection Clause is exactly, as you say, between anti-classification on the one hand and anti-subordination on the other.

And the SFFA opinion is notable

because

Justice Thomas uses the term anti-subordination, the first time that that's ever appeared in the U.S.

reports.

A little bit of Princess Bride.

I'm not sure you know the meaning of that word, but you know, anyways, footnotes.

Or maybe he does, or maybe he doesn't.

It's a fascinating move that he makes.

Justice Thomas says, I am, in effect, an anti-classificationist, not an anti-subordinationist, but he routinely speaks in the register of anti-subordination.

One of his defining moves, and we should understand him as a constitutional theorist, I believe, one of his defining moves is to say that the problem with affirmative action is that it does subordinate black people, that it suggests that Black people left to their own devices are not capable of achieving.

This is predicated, he says, on a notion of black inferiority.

That is classic anti-subordination rhetoric.

And so what I was trying to do in the strange career of anti-subordination in this book, The Fall of Affirmative Action,

is to say that the story is more complicated than the one that we learned in law school, that liberals believe in anti-subordination and therefore affirmative action is a-okay,

and conservatives believe in anti-classification and therefore affirmative action must fall.

But with respect to liberals,

many liberal theorists have said that affirmative action does subordinate.

That is to say, Derek Bell, the founder of critical race theory, says that affirmative action can be understood to envelop racial minorities in a cloud of suspected incompetence, he says.

Randy Kennedy, Stephen Carter, and many other people have spoken in this register.

In that part of the book, I am attempting to engage my colleagues here at Yale Law School and throughout the academy who say, well, anti-subordination means affirmative action is A-O-K.

And I do try to, of course, weave in

the litigants at issue in SFFA thinking about Asian Americans and subordination and how it plays out with respect to that group.

As you note, critics from both the left and the right of affirmative action have drawn from this anti-subordination theory to raise challenges to affirmative action.

And of course, when you are talking about the badge of inferiority, right, that they allege, you know, is stamped on minority applicants as a result of affirmative action, it calls to mind, you know, this kind of infamous part of constitutional law in Plessy versus Ferguson, you know, where the Supreme Court denied that separate but equal segregation resulted in a badge of inferiority on black individuals.

And I just wondered, you know, in thinking about like these two claims about what produces badges of inferiority and how, you know, when I think about ways in which or possible ways in which affirmative action might lead to a badge of inferiority, it seems to, in my mind, be drawn from a premise that almost assumes that black and brown applicants don't belong and are less qualified.

Whereas, right, like it's not necessarily the result of the policy itself.

It's like the combination of the policy and social facts, namely the Stephen Miller response is like the perfect tell on that.

So, you know, after SFFA is decided, Stephen Miller's America First Legal Foundation sends out these letters to all of the law schools saying that there will be legal action if they're they're not compliant.

But the question is, what would constitute compliance?

What would be the evidence of compliance?

And it's very clear.

And it's enrolling not as many black and brown students.

Right.

And that's not about affirmative act.

I mean, that's not affirmative action.

That's racial hierarchy.

I mean, I think you could look at it at.

places where affirmative action had been eliminated even before SFFA.

So I taught for years at the University of California, Berkeley, where affirmative action had been eliminated through a voter initiative in the 1990s.

And, you know, I still had students, Black students who said, you know, I think my white colleagues think I don't belong here.

And I'm like, well, why would that be?

Like, we don't have affirmative action.

Well, I think it's because of the tenacity of racial superiority.

Yeah.

I think that's exactly right.

Edward Bloom, the founder of SFFA, has gone around and said, in effect, we should be happy about Black students at MIT falling from 15% of the class to 5% of the class, because that 5% of Black students, they will know they made it in through the front door and they should have their heads held high.

I think Melissa is exactly right.

The experience of California is instructive here when

students at UC Berkeley who were admitted decades after California got rid of affirmative action say that they are treated as lesser than by their classmates.

They're not invited to join study groups.

Indeed, they're not even believed to be students at UC Berkeley.

There's a phenomenon people refer to as, you know, sprolling while black, being on Sproul Plaza.

Sproul, Sproul, Sproul.

Sproul Plaza, pardon me.

Thank you so much.

So they are, you know, walking around the plaza and they're not

being handed out the leaflets because people believe that they're not students at all there.

If you're being black, it means you're not a student.

And I think that you all are exactly right.

The Trump administration here

is

being motivated by an idea that there are too many black students on elite college campuses.

That is

the driving impulse.

They are now trying to sort of

seize university data.

And they believe that there are just too many black students on these elite college campuses.

Can I just note how insane the double standard is there?

Because they are saying, right, efforts to increase racial diversity, right, are improperly motivated by race, and yet their efforts, right, to reduce the presence of minorities on campus, that's somehow a permissible motive.

It's just, anyways, sorry.

No, it's a really important point.

I've been talking with a wonderful student of mine here who has been pushing me on this issue.

For a long time, conservatives think of, you know, a horrible thing in the area of race is racial balancing.

This is the boogeyman.

We can't have racial balancing.

That's a disaster.

We can understand the Trump administration as engaged in a type of new racial balancing, right?

To say that if the numbers sort of don't fall,

then there is evidence of malfeasance somehow.

So

it's a very distressing time.

So the book is focusing principally on the Supreme Court's shifting visions of affirmative action and permissible uses of race in the context of affirmative action.

But it is worth remembering that affirmative action actually begins in the executive branch, through a series of executive orders launched by the Kennedy administration that was focused on integrating the ranks of federal contractors.

And when those EOs were launched, they were explicitly remedial and reparative, which is to say they were meant to compensate for a very long history in which racial minorities had been excluded from the ranks of federal contractors.

And at least initially, and at least until the Supreme Court intervened in Baki, remedial or reparative interests were a big part of the underlying ethos of affirmative action programs and permissible.

Baki intervenes and suddenly diversity becomes the cry de corps for affirmative action programs.

I guess I'd like for you to sort of tease out what is gained or lost in the jurisprudence and on the ground when diversity becomes the watchword for affirmative action and the ethos that underwrites affirmative action.

Yes.

So Justice Powell's opinion, the controlling opinion in 1978, says expressly that racial remediation is not meant to be the justification for affirmative action, that that is impermissible.

Instead, elevating the Harvard College model that said that a farm boy from Idaho brings something to Harvard College that a Bostonian cannot, so too, with a black student in comparison to a white student.

You know,

the belief in diversity,

although it may have started as an effort to offer a palatable solution, one that could sort of gain credence and acceptance,

did become quite

ardently believed on universities.

I think that they pledge allegiance to diversity in intense ways.

I wrote a study a long time ago now with some empirically minded scholars trying to revive the diversity rationale.

I know that many people dislike it, but we examined the adoption of diversity policies on law reviews.

This is at a time when law reviews were being sued because of their racial composition.

And we looked at the effect of citations

before and after the adoption of diversity policies to see what would happen.

And

we found that the adoption of diversity policies actually increased citations by 25%, a statistically significant figure.

So, one of the difficulties in SFFA is Chief Justice Roberts says, Well, how do we really know how to measure diversity?

This is impossible to measure,

ignoring our article in the Columbia Law Review right before his eyes.

So, I think that this idea that diversity is just impossible to measure, there's no metric, Justice Alito Alito says, I think that's mistaken.

So I was actually thinking, I mean, I agree with you, like the whole idea that you cannot measure diversity, that seems to be wrong-handed.

I actually was thinking about some of the arguments that people of color have lodged against diversity: that, you know, why don't we think about this as remediation or a reparative interest?

Like, we were shut out of institutions like the University of North Carolina for many, many years.

And this is an opportunity to correct that.

And the downside of diversity is that it gives credence to the idea that black people or people of color are there only to ensure that white people have optimal educational outputs or outcomes.

And I think that's concerning.

I mean, I've talked about this with my own constitutional law class as a parent.

Like, that's not why my kids are in school.

So white kids get a good education.

I'm there for them to get a good education.

And so, you know, is there something lost at a granular level when we refuse to acknowledge or grapple with a history where there has been profound exclusion and maybe there is an interest in remediation or repair?

That point is quite well taken.

The notion that black students are there for to educate others or as sort of window dressing, that seems like quite a powerful objection.

I will say that one of the

sort of

ironies of the SFFA opinion is that it may open the door to revisiting racial remediation because of originalism.

And this came up during oral argument.

What does the conservative originalist do with respect to the Freedmen's Bureau?

After all, that would seem to be rather strong evidence, contemporaneous evidence, that efforts to aid Black people pass constitutional muster under the 14th Amendment's equal corporation.

Well, Justin, you just ignore that part.

That's the history and tradition that you can just put aside.

It doesn't matter.

No, no, no, no, no, no, no, no, no.

They don't ignore it.

Actually, Justice Thomas says in his concurring opinion,

the Freedmen's Bureau, that wasn't about race.

Yeah.

Parenthetically, every significant historian thinks that's like crazy, that freed persons was synonymous with black people.

But just take that for the moment.

He says that wasn't about race.

Instead, that was about the status of having been an enslaved person.

Whereupon, you know, Justice Kavanaugh during oral arguments said, but that means that preferences for the descendants of enslaved persons also, that would not be a racial category.

So, one of the proposals that I make in the book is that universities should contemplate adopting preferences for the descendants of enslaved persons, which would go back to the, in many people's minds, the strongest justification for affirmative action about historic injustice and the legacy with us today of that injustice.

But many conservatives have suggested that this

is constitutionally possible, including Michael McConnell, David Bernstein,

and other people associated with the Vala conspiracy.

They're invited to the cookout.

They're invited to the, okay, they're invited to the Mayflower.

They're when the Federalist Society holds its convention.

And so I think that this is an exciting idea.

I hope that universities will take it seriously.

Just want to pause to remind you that during oral argument, Patrick Strawbridge, when fielding that question from Justice Kavanaugh, noted that slavery was too closely correlated with race for that to work.

And we remember, ladies, we said, why would that be?

Why would slavery be so closely correlated with race?

That point is very well taken.

At the same time, if one takes seriously SFFA

versus Harvard, and that what's forbidden is race qua race,

that is not a racial category in modern America.

That is to say, that there would be Black people who would fall into the category of descendants of enslaved persons, and also plenty of Black people who would not fall into that category today.

So, I, of course, am completely committed to the proposition that slavery and race are deeply intertwined in American history.

You don't have to convince me on that front.

But, you know, there are lots of relatively recent immigrants to the country who would not be understood to be descended from enslaved persons.

So we are now in a new era when it comes to affirmative action, and we wanted to talk about some of the practical.

We've already talked about how you have suggested that

people on the left who embrace the anti-subordination theory have failed to grapple with how like affirmative action might implicate their theory.

And in your book, which is also expanded in your recent New York Times op-ed, you similarly observe that with respect to the other side, quote, conservatives have often excoriated affirmative action because they argue it makes racial minorities see themselves as victims, end quote.

But the irony of SFFA decision is that, as you write, quote, Robert's opinion promises to intensify victimizing narratives.

How did Robert's opinion create the conditions for this or like a potential trauma-dumping fad?

And what does that imply more broadly about SFFA's inability to achieve its intended ideals?

Yes, so conservatives have long had affirmative action in their crosshairs.

It seems to me that they have done an inadequate job of contemplating the new regime that was going to replace the old regime.

And so, with respect to victimization, which Shelby Steele and many other conservative commentators have said affirmative action heightens victimization, I actually think that this decision, SFFA, expressly says that it's permissible for applicants to write essays that sound in

moves of racial discrimination, inspiration, or otherwise.

And so this is a new world.

Under the old regime, a black applicant like myself could check the black box and then write an essay about why I wanted to study, you know, Proust or Plato or string theory or anything else.

And under the new regime, because universities universities are prohibited from accessing the racial boxes,

people are strongly incentivized to write essays about their brushes with racial discrimination.

And

that narrative is going to become deeply embedded in the students who are polishing their essays over time.

This is not something just checking a box.

It requires numerous revisions.

And of course, it's going to trouble this conservative idea that the nation has witnessed enormous strides toward racial progress.

This is something that's very important for Chief Justice Roberts and his conservative colleagues, as evidenced by the Shelby County decision.

But here, students are going to be incentivized to say,

you know, this horrible thing happened to me, and this is evidence that the nation hasn't gone as far as people would like to believe.

And so here I am trying to channel conservative argumentation and take their professed ideals seriously.

And I would say that a similar phenomenon could be found with respect to their mismatch idea.

I personally don't believe that mismatch is a significant thing, but they say that it is a big deal.

And I believe that this decision could heighten the mismatch concern.

So the point you just made about this new landscape giving students more opportunities to really kind of flog their victimhood, like, you know, a new sort of oppression Olympics in the essay section of the application process this was the subject of your recent new york times op-ed and i think it was very compelling i wonder what you would say about that theory in light of the recent directives from the administration that universities share their admissions data with the doe going forward because it would seem that that sharing mechanism or that requirement to share data would be a really strong deterrent to universities to admit only students with the right kinds of metrics.

That is to say, really good GPA, really good test scores, and leave aside those students who may be on the bubble, but who write really compelling essays and compelling for whatever reason.

So, do you still think, given this new landscape where schools are going to be obliged to share their data in very explicit ways with the administration, that the same concerns about the essay and the prospect of victimology are as acute?

Listen, if I were offering advice to a high school senior, I would encourage the student to write the essay that they believe is going to enhance their chances.

And very importantly for me,

I really want to make it clear that there's a lot of misunderstandings here.

I write about in the essay that you all have been mentioning, a student from a poor part of Atlanta, an African-American student, DeMar Goodman, who was under the misimpression that SFFA said, you can't talk about race any longer.

And that's exactly wrong.

So it's not that I would say say people shouldn't do it.

I want them to be aware of the consequences of

this new regime.

And with respect to the sharing of the data,

I was deeply troubled by Columbia and Brown University's agreement to hand over the data, which then the Trump administration said we need all of this data.

Not so much because of what the data will reveal.

Admissions officers have exactly as you say, Melissa, a a tremendous amount of discretion over who to admit.

They're not just taking

the sort of highest scores

across the board.

That's not what they're doing.

They're trying to round out a class.

But I was alarmed because of what it signals for the Trump administration.

That is to say, that they are trying to depress black and brown enrollment at these schools, even though Brown and Columbia had already suffered a 40% decline post-SFFA.

So, you know, I think that the nation has a lot of profound troubles right now.

Too many black students on elite college campuses is not among them.

Okay, so can we maybe stay on the where we go from here point?

Because although the book is, as you have been in this conversation, sober about what you describe as the calamitous results of the opinion, it also is very self-consciously not defeatist, right, about what universities remain squarely able to do within the confines of SFFA.

And so, you've already talked about potentially offering a preference for individuals who are descendants of enslaved persons, and you talk a little bit about some of the potentially practical difficulties of implementing, but you don't think that any of that is insurmountable.

Can you talk a little bit more about other kinds of mechanisms that you do think remain squarely lawful after SFFA?

And then, maybe do you want to respond a little bit to kind of a skeptical listener who says, well, there's already challenges to other kinds of preferences that either schools or other kinds of institutions are trying to devise that are not on their face about race qua race, but the Stephen Millers of the world would nevertheless like to take down.

Sure.

Let me tell you about three other ideas.

There are a lot of ideas in the book, but let me tell you about three, apart from the preference for the descendant of enslaved persons.

A preference for people from low opportunity areas.

I make the claim that universities could set aside, even have a quota of 10% of the class for people from low opportunity areas.

There's a wonderful publicly available resource.

called the Opportunity Atlas by Raj Chetty and John Friedman, where they take census data and pay attention to numerous factors that are correlated with disadvantage, including teen pregnancy, incarceration rates,

family income, these sorts of things.

And preferences for students from those areas would be valuable.

There's a wrinkle to that one, though.

I think it would make sense to have 80%

of the students from low opportunity areas come from urban areas and 20%

from rural areas.

Because if you just say low opportunity, I don't believe that's going to have the intended effect.

But that is not race qua race.

Chief Justice Roberts says directly in the opinion, preferring somebody because they live in a city is different than race qua race.

Okay, second, a preference for tribal members would also be available.

Too often, we speak only about black and brown students in this area.

Native American enrollment plunged after the end of affirmative action out in California.

And the Supreme Court of the United States has said preferences for tribal members is not a racial category.

It's not the same thing as Native Americans generally.

And so that's another option.

The third option would be for these universities

who have ivory towers that cast long shadows over black and brown neighborhoods to form partnerships with local schools

that have a high black and brown enrollment.

And that is just like the Texas 10% plan in many respects, which has not been understood to violate the Constitution of the United States.

So can we focus on the impact of SFFA on the enrollment of minority students in elite colleges over the course of the last two years?

It has raised concerns about potential ripple effects of the decision in business, in politics, and leadership.

Basically, The argument is that this decision is going to have real consequences on the fabric of a pluralistic democracy, just because the numbers have become perilously low in just two years.

For those who want to feel more optimistic or to support a more positive future for all of us across the board, are there broader correctives that might be implemented that we all could participate in?

Yes.

So I think that you're exactly right that we are looking at a

lost generation of Black students on elite college campuses.

And

Princeton, by the way, just reported its data.

And

this year's first year class went from 9% Black to 5% Black.

So I worry that there are many more shoes to drop over time.

You know, the book is focused on

universities, elite universities, because what happens in those courtyards plays a disproportionate role in shaping what happens throughout the country as a whole.

So I really am trying

to focus on what tools remain available to universities to enroll significant numbers of black and brown students.

You know, sometimes when affirmative action comes up, people say, oh, it's just such a late intervention.

You know, we need to

get involved in the K through 12 environment.

And, you know, maybe there is some force to that argument, but nothing's prohibiting people from getting involved in the K through 12 environment with the existence of affirmative action.

And so the idea that now in the aftermath of affirmative action, I haven't seen people racing headlong to redistribute funds or start up these sorts of programs.

So it always struck me as a bit

beside the point when people make these arguments.

And I guess one of the other things that I do want people to appreciate about affirmative action is that it has made tremendous contributions

to our nation.

In 1960, Harvard, Yale, and Princeton had 15 Black students total out of 3,000,

one half of 1%.

You flash forward a decade later, It's right around 300 black students.

And what happens there, exactly as you say, Melissa, is going to shape what happens in the business world, in the world of academia, in the world of the legal profession and beyond.

And so given the declining numbers, we're going to be dealing with this for the decades to come.

So as part of our effort to end our episodes on a more positive note, Justin, we've been inviting our guests to share things they have read, watched, seen, or

otherwise enjoyed in the last week.

So would you mind sharing your recommendations with our listeners?

Sure.

So I've had a couple of occasions to revisit some things over the last week.

I'll tell you about two of them.

One is a book by Rick Rubin titled The Creative Act, a Way of Being.

This is the great music producer, Rick Rubin.

I'm quite confident that he didn't write it to help my little life as a law professor, but he- Or did he?

He really does democratize creativity and not talk about I was in the recording studio with this particular person, but instead the mindset of those of us who are involved in trying to create.

So it's made a tremendous positive difference in my life.

I constantly think about the mindset of abundance versus the mindset of scarcity.

We want the mindset of abundance.

The other thing that I just reread the other day is a law review article written by Randall Kennedy of Harvard Law School, who was my professor back in the day, my dear friend today.

He's written a lot of great law review articles.

I'm going to recommend Martin Luther King's Constitution.

It's a Yale law journal publication from 1989, not nearly as heavily cited as racial critiques of legal academia or his piece on McCleskey versus Kemp, but it is a model

sort of law review article in that he's engaged in thinking about the Constitution outside of the courts and taking seriously Martin Luther King, who lacks a legal degree,

engaged in legal decision making.

So I just reread that the other day and I commend it to your listeners.

All right, those are terrific recommendations to end the conversation.

That is all we have time for today.

The book, once again, is The Fall of Affirmative Action, Race, the Supreme Court, and the Future of Higher Education has a very nice cover.

The author is Justin Driver.

Justin, thank you so much for joining us today.

Thank you.

I really enjoyed the conversation.

And thanks to our incredible intern, Jordan Thomas, for his help in preparing for today's episode.

My student.

Yes.

Train him up for us to do that.

You train him.

So beautifully.

Thank you.

Thank you.

Truly wonderful.

Thank you.

And since Justin offered up some of his favorite things, I think it's only fair that we provide you with some of our favorite things from this week.

So Kate, why don't you go first?

Sure.

So, I will first recommend a new essay by Alexandra Petry, who is now at The Atlantic, who's got a great piece titled, Apologies.

You have reached the end of your free trial period of America.

I'll just leave it there.

Wonderful piece.

Hilarious and dark as she so often is.

And then, two others we've already mentioned, I don't know, at least twice during this conversation, but our friend Steve Lodick and his One First Street newsletter is always a must-read.

I thought his latest bonus installment about like holding on to law and refusing to give in to kind of nihilism and hopelessness was like very bracing and energizing.

And I highly recommend it if you are feeling down about the prospect of law in this moment as is a reasonable response to the lawlessness of so many players in the landscape.

So great piece.

And then finally,

the insane piece of New York Times reporting that dropped either Thursday or Friday, I just read it today, Friday.

about this SEAL Team 6 mission to plant a listening device in North Korea that went horribly wrong back in 2019.

I mean, it is just an absolutely riveting read.

And it's also terrifying to contemplate that that all happened in 2019 when there were still people in the military leadership willing to stand up to President Trump compared.

to now after the installation of Hexeth and the purge of so many top military leaders.

So I think everything is going to go great with future clandestine missions, but definitely read that piece.

Well, we'll read about the clandestine missions in Signal, so don't worry about that.

We'll find out.

So, my recommendations are one piece I've already mentioned, Chris Geidner's Law Dork Post explaining the machinations in the DC courts over the foreign aid funding case.

Also, I wanted to highlight some additional posts by Steve Vladic at one first.

One is playing the justices for fools.

This too was about the DC foreign aid litigation.

And then Kate appeared on Ezra Klein's podcast

last week when we were off.

And I thought that was just a fantastic episode.

Thank you.

Oh, yeah, that worked out well.

We dropped it.

That episode dropped like the day that we were dark for the holiday.

So completely inadvertent, but yeah, that did work well.

Sorry for that.

I think we're just going to start calling it the strict scrutiny Ezra Klein crossover and let him correct us.

Okay.

Anyway, he will correct us, I think.

Anyway, so my favorite things this week are as follows.

First of all, I loved Secretary Bildebert, that is Secretary Robert F.

Kennedy Jr., who was at a hearing before members of the Senate last Thursday.

And all I can say is, listeners, pop your corn and settle in because it is a scene.

Bernie Sanders ranting, Maria Cantwell, who I don't think is prone to hyperbole, calling RFK Jr.

a charlatan on the record.

Amazing.

It was fantastic.

It's basically like a Schaden Freuda sound bath.

So just let it wash over you.

It's fantastic.

And if you loved that, you will also love New York Magazine's Reeves Wideman's in-depth story about how almost all of the Kennedy family are actually really appalled with RFK Jr.

and may want to excommunicate him.

I'm here for all of this drama.

Highly recommend it.

In addition to those, I loved Hysteria's episode this week.

They had an installment of their series, This Fucking Guy, and this time it was about Nancy Mace of South Carolina.

And I learned so much.

It was just absolutely fantastic.

I am also reading Sarah McClain's These Summer Storms, which Leah recommended to me.

Loved it.

Loving it right now.

Also read the Gwyneth Paltrow biography.

I know, the unauthorized.

And I'm telling you, I will not, I love Gwyneth.

I will not hear a word against Gwyneth, but I will read them.

So there's a lot here.

This is great.

So that's all for this week.

But next week, we will be back with a very special segment with a very special first-time guest.

We are super excited about.

So stay tuned for that.

Strict Scrutiny is a crooked media production hosted and executive produced by me, Leah Littman, Melissa Marie, and Kate Shaw, produced and edited by Melody Rowell.

Michael Goldsmith is our associate producer.

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Production support comes from Madeline Harringer, Katie Long, and Ari Schwartz.

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And thanks to our digital team, Ben Hethcote and Joe Matoski, our production staff is proudly unionized with the Writers Guild of America East.

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