The Agonies of Brett Kavanaugh

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Speaker 4 Mr. Chief of Justice, may it please the court.

Speaker 4 It's an old joke, but when an argument man argues against two beautiful ladies like this, they're going to have the last word.

Speaker 5 She spoke not elegantly, but with unmistakable clarity. She said,

Speaker 5 I ask no favor for my sex.

Speaker 5 All I ask of our brethren is that they take their feet off our necks.

Speaker 2 Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your host today.
I'm Leah Littman.

Speaker 3 And I'm Kate Shaw. And we're without Melissa today, but don't worry, she'll be back next week.
And listeners, we are still recovering from Crooked Con in DC last week. We got to meet a ton of you.

Speaker 3 We got to catch up with old friends from various corners of the worlds of law and politics and organizing. We got to take in the maggification of DC with our own eyes.

Speaker 3 That last part, pretty bleak, but the rest of it was honestly really energizing and invigorating and we loved being there.

Speaker 2 And before we get going on this episode, I wanted to put in an early episode plug for our California live shows. We have so much fun getting to meet all of you and do this craziness with our people.

Speaker 2 And we've heard from you all that being in an audience among other smart, cool people who are also outraged and invested is a good time.

Speaker 2 Also, I bring surprise gifts for our VIPs if you haven't heard, but you won't know about them

Speaker 2 unless you're there.

Speaker 2 This is also our very first tour on the West Coast.

Speaker 2 And I personally really wanted to be invited to LA and I want to be invited back and San Francisco, but Southern California is like my sole home because of the donuts mostly.

Speaker 2 So if you haven't already gotten your tickets for our California live shows, get on it.

Speaker 2 You can join us at the Herbs Theater in San Francisco on March 6th, then at the Palace Theater in LA on March 7th. Get your tickets now at crooked.com/slash events.

Speaker 3 So we are really looking forward to that.

Speaker 3 And as great as it was to get to do a live show in DC at CrookedCon, the constraints of live shows always mean we are somewhat limited in the legal news that we're able to cover.

Speaker 3 So we have a lot to catch you up on today. We are going to start with some breaking news.

Speaker 3 We will then turn to debriefing the oral arguments from the November sitting that we haven't had a chance to discuss yet. We did talk tariffs, but not the others.

Speaker 3 And we will end by noting some significant cert grants and denials. Okay, first up, the news.

Speaker 3 Let's start with briefly bringing you up to speed on the developments since we last recorded involving the lawsuit seeking to compel the administration to abide by the law that requires them to pay SNAP benefits even in the event of a government shutdown.

Speaker 3 So, Leah and our friend Steve Vlodick brought you up to speed on this litigation last week.

Speaker 3 And as a reminder, Justice Katanji Brown Jackson entered an administrative stay to give the First Circuit the chance to act on the administration's request to block a lower court that had directed the government to pay those food benefits.

Speaker 3 Okay, that's that's where we were last we talked.

Speaker 3 Then on Tuesday night, the full Supreme Court extended the stay that Justice Jackson had previously entered, and eagle-eyed court watchers noticed that the language the unsigned order used suggested that the full court might have done the extending without Justice Jackson referring the matter to the full court as is customary.

Speaker 3 Justice Jackson, in fact, noted that she would have denied the extension and she would have denied the administration's application.

Speaker 2 And I think this difference in wording is some additional evidence in support of Steve and my view of Justice Jackson's administrative stay, which, just to refresh your memory, was that Justice Jackson basically did the best she could and the most she could and acted very strategically, given that she was operating against the backdrop constraint of the reality that if she didn't do something to pause the lower court order obligating the government to fully fund SNAP, five of her colleagues just would have taken it out of her hands and done something worse.

Speaker 3 So she headed that possibility off, and then the court ordered additional delay seems to have had its intended effect, which is that Congress has now passed legislation ending the shutdown and at least temporarily funding the government, although, of course, we could be back here in a couple of months.

Speaker 3 And then on Thursday, the federal government filed a letter with the Supreme Court noting that it was withdrawing its application because the application was now moot.

Speaker 2 And though it seems much longer ago, because this week has been a year, if not several,

Speaker 2 on Sunday, that is not this past Sunday, but the one before, Trump issued pardons to more than 75 people involved in the Stop the Steal movement, January 6th, you know, the efforts to overturn the results of the 2020 presidential election: Rudy Giuliani, Mark Meadows, Sidney Powell, and more, which is a little odd because these people are facing state charges, which presidential pardons aren't effective against.

Speaker 2 Presidents can't pardon people of state crimes.

Speaker 3 Like full stop,

Speaker 2 full stop, they can't, and yet, and yet,

Speaker 2 I feel the need.

Speaker 3 I heard a little

Speaker 2 Clarence Thomas Sam Alito potentially doing the Usher meme. Watch this.
Just

Speaker 3 or can you?

Speaker 2 Or can you, right? Just asking some questions, says Neil Gorsuch.

Speaker 3 And yeah, so. Yet another thing that like courts have not definitively said because people haven't even tried to, presidents haven't tried to pardon people for state crimes because you just can't.

Speaker 3 And yet they want to walk right through that, you know, potential opening.

Speaker 3 I think this is a very long shot possibility, but I think you're right, Leah, we should not rule anything out.

Speaker 3 So there is that question, like, will there be some effort to try to make presidential pardons of state crimes great for the first time?

Speaker 3 But there's also the question of like, why these pardons now, right? Like, they have done so much.

Speaker 3 And it's been 10 months. And so I really, I don't know that I have a theory on timing.

Speaker 3 I mean, I do think there is one possibility, which is that this is about sending a message that the president will have the backs of people who run election interference for him this time around, since the midterms are becoming front of mind.

Speaker 2 Yeah, and former USA Dick kind of suggested as much on social media, talking about the pardons or referring to the pardons. He said, no, MAGA left behind.

Speaker 2 You know, another possibility is this is a warm-up act for a potential pardon of Ghana Maxwell.

Speaker 2 And on

Speaker 2 that point,

Speaker 3 yeah, so if if you were under a rock this week, you may have missed in

Speaker 3 the middle of the day. Like real, real great choice.
Please

Speaker 3 directions to that rock. I want to join.
I'm going to pick a favorite week for people who could read

Speaker 3 or people who follow the news. No, it was bad.
I have things burned into my backs of my eyeballs.

Speaker 3 I can't unsee.

Speaker 3 But if you need a refresher or were under that rock or just were looking for our take, we will give it to you, which is that this week we saw a release of a significant tranche of Epstein's emails.

Speaker 3 Now, these are not the Epstein files in the possession of the Department of Justice. These are many, many emails in the possession of the Epstein estate.

Speaker 3 But this is an enormously significant story for a number of reasons.

Speaker 3 One, the horrifying nature of Epstein's conduct, much of which we knew, but we got some additional detail. on.

Speaker 3 The reality, which is just like splashed across the page, that he was protected for many years, didn't face consequences for sexual abuse and trafficking.

Speaker 3 All of those things are really driven home by the contents of these files.

Speaker 3 And then also, this is really important because Jeffrey Epstein conspiracies have featured very prominently in right-wing conspiracy circles and Donald Trump's political machinations for many, many years.

Speaker 2 And I almost feel the need to apologize to those conspiracy theorists, right?

Speaker 3 Like,

Speaker 3 oh, on some level, you're absolutely right. Yeah.
Right? Like,

Speaker 3 the details, you were all. The details were off, right? They moved.
They moved off. You were speaking in code, right?

Speaker 2 The people involved, not who we were alleging, but like the underlying metaphority.

Speaker 3 Yeah, there was a ring to protect child abusers that had participation by people, men at the highest levels of government and the worlds of business, finance, et cetera, academia. Yeah,

Speaker 3 that's basically all right. Yeah, there's a little wrong about the personages.

Speaker 3 So the emails add to, I think, our understanding of Epstein's activities, the relationships he had with powerful individuals, many of whom seem, even though making reference in quite oblique ways, but pretty clearly to have been quite aware of his sexual abuse of minors, some going so far as to basically seem to joke with him about it.

Speaker 2 Yeah. And I have been trying to put my finger on why this has just made me feel ill.

Speaker 2 Some of it is just the gut-wrenching aspect of having to read a bunch of powerful, connected, wealthy individuals like seek to acquire more powerful connections and wealth by going through this known sex trafficker like as late as 2019, after the Miami Herald broke the stories about his conduct, after his initial plea deal.

Speaker 2 And, you know, all of this, the emails are being released on the heels of an election whose results, we have been told repeatedly, are attributable to the Democrats' overemphasis on women's rights to the exclusion of men's feelings and men's lonelinesses and like the excesses of the Me Too movement, which apparently went a little too far in trying to hold people accountable for sexual misconduct.

Speaker 3 Yeah.

Speaker 3 And I think this is probably clear, but just to be crystal clear, we're talking here about the presidential election, not last Tuesday's election that, you know, unexpected, you know, was a sort of a rare bright spot in actually resulting in some important Democratic victories.

Speaker 3 But of course, that's what Lee is saying is maybe like the prevailing account of at least one of the key factors in returning Donald Trump to power.

Speaker 3 So that is one thing that's just unbelievably, endlessly galling about these revelations.

Speaker 3 There are also the efforts to downplay these discoveries in certain circles that were very fixated on Jeffrey Epstein for a very long time.

Speaker 3 And I think their efforts to downplay these new revelations make clear that this was never really about sexual abuse or sexual exploitation, right?

Speaker 3 This was a political smear, a way to try to hurt Democrats, to gin up fears about trans people and gay people and women in the workforce, and not actually about protecting girls and women.

Speaker 3 And we want to highlight just a few things that have been picked out among these documents for a bunch of reasons. So, Leah,

Speaker 2 so one concerns Larry Summers, who in the year of our Lord 2017 had the impulse to email Jeffrey Epstein, who by this point had pled guilty to crimes.

Speaker 2 And Summers emailed him to complain about society being too hard on men who engage in sexual misconduct.

Speaker 2 And I'm just going to quote this here, quote, I'm trying to figure why American elite think if you murder your baby, it must be irrelevant to your admission to Harvard, but hit on a few women 10 years ago and can't work at a network or think tank.

Speaker 2 Do not repeat this insight in all caps. And again, the idea that you go to Epstein for counsel about the excesses of holding people accountable for sexual misconduct.
I mean, I just know.

Speaker 3 Well, you knew you already had a receptive audience. So if that's if you wanted somebody to like, you're doing great, sweetie, like, I think that's probably why.

Speaker 2 But I think that that speaks to like these people wanted to be charmed by epstein like that's what they found attractive about him because if you read these emails the guy can't spell he can't punctuate he's not clever right like the appeal is he is engaged in these horrendous activities and getting away with it It is really hard to, if you, and I mean, there are so many thousands of pages.

Speaker 3 I think I only scratched the surface, but what the appeal is remains completely opaque to me, right?

Speaker 3 There is, because, you know, surely all of these people who spent all this time cozing up to this person, obviously lots of theories did, was he blackmailing all of them?

Speaker 3 Like, what other nefarious reasons were there? And one explanation that has been offered is that, like, he actually was just wildly charming and people were drawn to him and his charisma.

Speaker 3 And it's not there.

Speaker 3 It is not. None of those things are true.
So it's got to be one of the very nefarious explanations because the charisma story doesn't hold up. Yeah.

Speaker 3 Yeah.

Speaker 3 So it is not the topic of all of the emails, but there is an over-representation in these emails of guys talking to Jeffrey Epstein about sexual misconduct to get advice, maybe at a point in their life when they had gotten caught up in some sexual misconduct related trouble.

Speaker 3 So one case in point, one Ken Starr,

Speaker 3 who emailed Epstein in 2018, seeking Epstein's counsel after Starr was fired from his job as the president of Baylor University for not investigating sexual misconduct. Starr signed his email.

Speaker 2 Hugs.

Speaker 2 It's just so many layers of weird. And, you know, the

Speaker 2 content revolving around sexual misconduct is so omnipresent because who does Ken Starr bring up in these emails with Epstein?

Speaker 2 Judd Rubenfeld, the Yale law professor who was accused of sexual misconduct and sanctioned for it. And in some ways, like these documents are like a legal eagle, who's who.

Speaker 2 I mean, Epstein was quite interested in Rubenfeld. He emailed with another professor about Rubenfeld.

Speaker 2 And there are messages between Epstein and Steve Bannon, where Epstein is counseling Bannon on how to discredit one of the women who accused Brett Kavanaugh of sexual assault.

Speaker 2 Epstein suggested, you know, they should say she was on medications that cause false memories or memory loss. It's just grotesque.

Speaker 3 Yeah.

Speaker 3 And then there is the litany of emails concerning Trump. And we should say Trump is not himself writing any of the emails that we have seen.
And it's just.

Speaker 3 hard to know exactly how seriously to take the emails because Epstein, in addition to his many, many other deficiencies, was a bullshitter and a con artist. So who knows?

Speaker 3 But there's just really a lot there.

Speaker 3 How he comes up, yeah, how much he's there and what is said about him. So one example, in 2019, he writes, Epstein does an email to journalist Michael Wolfe.

Speaker 3 And in that email, he says, quote, of course, he, and he is Trump, that's what they're talking about. Of course, he knew about the girls as he asked Elaine to stop.

Speaker 3 And I should say I referred to Wolfe as journalist Michael Wolf. And, you know, that is his profession.

Speaker 3 But these emails really do not sound in a recognizable way as though emails between a journalist and a source, you know, who at some point Epstein was, as Wolf had written about him, much more feels as though Wolfe is helping run PR for Epstein, maybe also kind of encouraging him to blackmail Trump.

Speaker 2 That email was unreal. Like, let him hang himself, and you will be in a position to basically have him owe you just wild insinuations.

Speaker 3 Yeah. Then there's another email in which Epstein wonders to a different reporter from the New York Times why Trump-related material hadn't come out.

Speaker 3 And he asks, quote, Epstein does, would you like photos of Donald and girls in bikinis in my kitchen?

Speaker 3 In another email, Epstein recounts how Trump walked into a glass door once because he was staring at girls. This is at Epstein's place.

Speaker 3 And then there's a 2011 email from Epstein to Maxwell that says an unnamed victim who Republicans have identified as Virginia Duffrey spent hours at his house with Trump.

Speaker 2 So there's just like a lot of noise and smoke there at a a minimum suggesting Trump was aware of Epstein's misdeeds.

Speaker 2 And then also suggestive that like Donald Trump may have been involved in some of this.

Speaker 2 And this has precipitated a complete meltdown by the president who announced that he would both be ordering an investigation into Epstein's ties with people affiliated with the Democratic Party. A.G.

Speaker 2 Pamela Joe Bondi has since appointed a prosecutor to do that. But the president also maintains that this entire thing was a hoax.

Speaker 2 So like how how both of these things can be true, unclear, but like very fake and non-existent vibes, you know, as he characterized the birthday message he sent to Epstein.

Speaker 2 Anyways, like, I know we have to make decisions about what to cover, and this is kind of like tangentially legal news, but it's just so grotesque and appalling.

Speaker 2 And I know some people kind of like rely on us as like a legal-ish or news-ish source. And so, I felt some need to

Speaker 2 talk about it.

Speaker 3 Um, but we do have a lot of legal news we wanted to cover.

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Speaker 3 All right, on with the legal news and then we will get to argument recaps.

Speaker 3 But staying on news for now, so this is an unexpected turn, but the Department of Justice under one Pamela Joe Bondi is enforcing voting rights now. This was a big development.

Speaker 3 What kind of voting rights though, Kate? There's a catch. Don't worry.

Speaker 3 So DOJ has reportedly filed in federal court to challenge the new congressional map the California voters voted for in the most recent election.

Speaker 3 DOJ joined a case filed by the California Republican Party. And I'm going to try to describe this with a straight face.

Speaker 3 The administration claims that what the California voters have done is an illegal racial gerrymander, which evidently they are very offended by.

Speaker 3 So here are some of the horrific allegations they make that led them to file suit.

Speaker 2 So they allege that, quote, they, meaning California Democrats, feared that a Latino voice in Texas is worth one-third of the representation as a white voice and that Texas would slide back to the days of black codes and Jim Crow.

Speaker 2 Like, this is their evidence about it being discrimination, the fact that Californians were worried about racial discrimination against Black and Latino voters in Texas.

Speaker 2 Like, I will wait for DOJ's case against Texas and their gerrymander.

Speaker 2 Still waiting. Yeah, still waiting.

Speaker 2 But speaking of politically driven cases, we wanted to go back to the case involving Representative La Monica McIver, who we spoke with on our last episode at CrookedCon.

Speaker 2 Representative McIver reminded us about the facts and circumstances of of the charges against her.

Speaker 2 The allegation is that McIver assaulted or impeded a federal officer during the, I think, confusion surrounding Newark Mayor Ross Baraka's arrest when McIver went to inspect an ICE detention facility as part of her oversight responsibilities.

Speaker 2 ICE officials she allegedly assaulted subsequently gave her a tour of the facility and DeSota. And then weeks later, Alina Haba announces on Twitter that McIver is being charged.

Speaker 2 McIver, as we talked about, sought to dismiss the charges on the ground that as a legislature, she was performing legislative functions and therefore was entitled to immunity, and that the prosecution is also vindictive and malicious, motivated by political retribution.

Speaker 2 And unfortunately, the district court declined to dismiss several charges on those grounds, although it reserved judgment on one of them.

Speaker 3 So, this is a very disappointing and honestly kind of scary decision.

Speaker 3 Even if a jury subsequently acquits McIver, which we expect they will given the circumstances, it just prolongs the proceedings against her.

Speaker 3 And as we mentioned last week, that means costing her more money and potentially, as these proceedings drag on, deterring other individuals, she said she's not going to be deterred, but other representatives from potentially engaging in additional oversight and dissent.

Speaker 2 There is no transition to this next story because it is just so heinous.

Speaker 2 But there have been more administration-ordered and administration-executed murders. So reports that the 20th known lethal strike, i.e.
execution of alleged narco-traffickers, was carried out.

Speaker 2 This one apparently killed four people.

Speaker 2 The New York Times has also reported that there is apparently a secret memo prepared by the Trump administration that purports to offer a secret legal basis for the strikes.

Speaker 2 The idea apparently being that the United States is legally in a state of armed conflict with drug cartels. This is nowhere near legally plausible.

Speaker 2 It is also supposedly based largely on the assertions and say-so of the Trump administration, that is their characterizations of the facts.

Speaker 2 So, I guess may the identity of these memo authors be revealed so that their names can forever be linked to these murders is all I have to say there.

Speaker 3 Yeah. Okay, also hard to transition out of that one, but next piece of legal news to mention or, you know, news that has a legal component.

Speaker 3 So former UVA president Jim Bryan, who previously announced his resignation from UVA under pressure from the Trump administration, has now released a letter recounting his recollection of the events leading up to his resignation.

Speaker 3 It's 12 pages long. I have been at a conference all day.
It was just released today, Friday.

Speaker 3 But my quick glance suggests this is a very disturbing read that suggests pretty serious misconduct on the part of a number of lawyers at DOJ, on the Virginia Board of Regents, at the Virginia Attorney General's office, and at the law firm ostensibly representing UVA/slash the Board of Regents.

Speaker 2 Yeah, so just some samples, and Ryan released this letter in response to an account that was put forward by the like head rector and I think the Attorney General, but just some samples from Ryan's letter.

Speaker 2 So UVA was apparently limited by the Virginia Attorney General's office and who UVA could retain as outside counsel. And the AG approved only conservative lawyers, one of whom worked on Project 2025.

Speaker 2 There are also allegations in the letter that raise, in my view, serious questions about whether the outside counsel was working in concert with the Virginia AG office rather than representing UVA.

Speaker 2 You know, the current rector and vice rector of the UVA board allegedly, you know, were negotiating with DOJ and wouldn't let Ryan be involved in those negotiations.

Speaker 2 They didn't inform the rest of the board about DOJ's demands for Ryan to resign or inform them of Ryan's resignation until after the fact.

Speaker 2 And it recounts these DOJ threats that DOJ would rain hell on UVA and bleed UVA white. And again, like it's just mob-style governance that some people were affirmatively enabling.
And yeah.

Speaker 3 It just makes makes you wonder what is going on under the surface in so many of the administration's moves that we have yet to learn the full story of.

Speaker 3 So let's move on to argument recaps. The court has just finished two weeks of arguments and we have only had the chance to recap the big tariffs arguments.

Speaker 3 So we're going to break down the others and warning that because there are so many, we're going to have to be pretty quick in our discussion of some of them.

Speaker 3 Before we get there, though, we actually did want to flag something. I guess we're maybe engaging in our own kind of conspiracy theory here, Leah, but I think there might be something to this.

Speaker 2 Tin Hats were right. Tin Hats were right.

Speaker 3 Exactly.

Speaker 3 So after we recorded our last episode, President Trump, who had been curiously actually kind of quiet about the tariff arguments after they happened, finally broke his silence.

Speaker 3 So he took to Truth Social on Sunday night, so a week ago, Sunday, with honestly what really felt like a somewhat like unhinged half of a conversation about how he is losing the tariff case.

Speaker 3 So to wit, I'm going to read his half of the conversation, but it was the only bit we got. So, quote, so let's get this straight.

Speaker 3 The president of the United States is allowed and fully approved by Congress to stop all trade with a foreign country, but is not allowed to put a simple tariff on a foreign country, even for purposes of all caps, national security.

Speaker 3 And then the one-sided conversation goes on.

Speaker 2 This was like an oddly specific recounting of a specific legal argument. Sure.

Speaker 3 That was.

Speaker 2 Really raised red flags to me.

Speaker 2 And then this

Speaker 2 episode continued because on Monday night, he seemed to cast out on John Sauer's performance maybe during the tariff argument. So Trump said, quote, the U.S.
Supreme Court was given the wrong numbers.

Speaker 2 The unwind in the event of a negative decision would be, including investments in excess of $3 trillion. It would not be possible to ever make up for that kind of a drubbing.

Speaker 3 Okay.

Speaker 3 So

Speaker 3 then on Tuesday, Trump floated the possibility of cutting Americans' $2,000 checks, evidently from all the revenue. from the non-revenue-raising tariffs.

Speaker 3 So yeah.

Speaker 3 Anyway, it is certainly possible that all of these are just reflections of a president who is panicking after receiving reports of a rough oral argument for the administration over his signature policy initiative.

Speaker 3 And he's, you know, trying in his, I think, quite ineffectual way to work the refs as they decide what to do about these tariffs.

Speaker 3 But I do think it is curious that it was not until the weekend that this temper tantrum started. And I think it's especially curious because the arguments are Wednesday.

Speaker 3 The justices would have voted at conference on Friday.

Speaker 3 And so this timing does seem to at least tee up the possibility that word has gotten back to him and got back to him over the weekend about the vote at the Friday conference having gone against him.

Speaker 2 I want to see Ginny's texts.

Speaker 2 My other answer is Martha Ann with a fax machine.

Speaker 3 These are two possibilities we just cannot rule out. If Jody Cantor and Josh Gerstein are not on this story, they should be.

Speaker 2 I totally agree. Okay, so on to the argument recaps.
We haven't yet had a chance to discuss. We will start with the week one cases.

Speaker 2 That is the cases heard during the first week of the November sitting. We haven't yet discussed.
And we'll spend most of our week one time on Hensley versus Flora Corporation because...

Speaker 2 Ladies, gentlemen, and non-binary listeners, it happened. In the first week of the sitting, some Supreme Court justices finally got really worked up about some of the injustices of this world.

Speaker 2 What grave injustice do the Republican appointees, or at least some of them, seem motivated by? Lawsuits against military contractors?

Speaker 3 One of the outrages happening at the moment. So, right.

Speaker 3 So, Hensley versus Floor Corp, which is the case that inspired this fit of empathy, at least among some justices, is a case about whether you can sue military contractors who violate the terms of their military contracts.

Speaker 3 So, the contract here concerned Floor Corporation's responsibilities at Bagram Air Base in Afghanistan.

Speaker 3 The plaintiff in the case, Hensley, was injured when one of Floor's subcontractors detonated a suicide bomb.

Speaker 3 Someone, and we will name names, don't worry, got very worked up at the oral argument over the possibility that military contractors like Floor Corporation might face liability.

Speaker 2 That person,

Speaker 2 Brett Kavanaugh, the man who thought roving ice patrols and ice stops are no big deal, he could not keep his feelings in check during this argument. He was seriously out of control.

Speaker 2 So we're going to play a quick montage of some of his interventions during this argument.

Speaker 3 Correct.

Speaker 3 No military contractors, though.

Speaker 3 Can you just answer my question? Is there any difference? There is no conflict whatsoever. Well, footnote 11 of Garamendi says, I don't think that's quite what I wrote, but even if you didn't,

Speaker 3 even if something else is both from

Speaker 3 the film,

Speaker 3 it's a military base in the war zone. I'll stop there, but I want to get that comment out.

Speaker 2 He just had to get that comment out.

Speaker 3 He couldn't stop himself.

Speaker 3 I mean, I hope that this gives you some sense of what a crazy argument this was.

Speaker 3 So just to take stock of who he interrupted, he interrupted the petitioner's lawyer four times over three pages, and that's not all.

Speaker 3 He interrupted Justice Sotomayor, Justices Sotomayor and Barrett, Justice Alito twice, so equal opportunity interrupter, like occasionally.

Speaker 3 He interrupted the respondent's lawyer, that's the lawyer for the military contractor, who he thought wasn't arguing hard enough.

Speaker 3 He interrupted the federal government's lawyer, who same he just didn't think was vigorously enough defending military contractors the way they deserve.

Speaker 2 This is just another occasion to remind people that there are real questions about whether men are just too emotional to be Supreme Court justices because this guy was having an actual melty over the prospect that you could sue a military contractor.

Speaker 2 But please tell me more about how women ruin the workplace.

Speaker 3 The thing that was honestly the craziest about this argument was that it led to a moment that honestly felt like a signal of the end times having arrived at the court, which is something we thought would never happen, which you can hear here, and then we will discuss.

Speaker 3 You should finally get away from the future. Let me ask you, if I might just finish.

Speaker 3 Thank you.

Speaker 3 You're going to have your shot, my friend.

Speaker 2 Just to translate this, Brett Kavanaugh's behavior was so bad, Neil Gorsuch had to tell him that he was being too rude and taking up too much space.

Speaker 2 If this ever happens to you, it is a sign you need to do some deep reflection about how you got to this point and that you need to take an emotional lap.

Speaker 3 I mean, it was insane, but also whatever it is that has gotten him so worked up, like I think we want and need more of in our lives.

Speaker 3 So just live our lives in a way that will lead to Brett Kavanaugh having more meltdowns like that. Like, I think we're still in the middle of the year.

Speaker 2 Preferably in like November 2026, I'd like another meltdown around this time of year.

Speaker 3 Yeah. Yeah.

Speaker 2 Same time this next year.

Speaker 3 Sounds good.

Speaker 3 So the clip that we just played with Gorsuch and Kavanaugh, I think suggests that we may now have, in addition to Kavanaugh stops, right, which are the suspicionless racial profiling driven stops that Brett Kavanaugh seems to think are totally fine, totally cool, totally constitutional, we also may have Kavanaugh stop as a double entendre.

Speaker 3 So not just to refer to ICE's stops. and uses of excessive force, but also Kavanaugh,

Speaker 3 stop when he needs to just take a moment and find his end place. Yeah.

Speaker 2 I have to say the fact that Kavanaugh was so out of control confirms something I feel like we have talked about before, which is the guy is a total wing nut when it comes to executive power.

Speaker 2 Like he loves presidential power and the military. He's so thirsty for authoritarianism.

Speaker 2 You know, during this argument, he went on tangents about how warm and warfighting and combat zones are so within the exclusive power of the federal government, the states can't do anything about it, which was a little terrifying to hear when you realize that the president is invoking the same concepts and language of war and combat as a basis for militarizing American cities and deploying the National Guard and roving ICE patrols.

Speaker 2 It's also just like,

Speaker 3 dude, that's a shared power. Congress has an enormous, like, what are you talking about? Yes, like, there is this move or trope.

Speaker 3 It's commander-in-chief power and like everything else falls away, but like...

Speaker 3 Especially since we are tiptoeing to the edge of like an actual war with Venezuela, like declarations of war, that's Congress, right?

Speaker 3 And lots of other things to do with regulating the military and all kinds of other things. Those are within Congress's purview.

Speaker 3 Like this idea that everything that you could sort of say war around is exclusively within the president's authority is just insane. And yet that very much sounds like where Brett Kavanaugh is.

Speaker 3 So along those lines, as we said in the episode where we previewed this case, one of the questions here intensely is whether the Constitution prevents states from holding federal contractors liable for violating state law.

Speaker 3 This could have huge implications for whether states can hold accountable ICE officers, CBP officers, HSI officers, basically all of these DHS subcomponents are having their personnel terrorize the population.

Speaker 3 And the ability of states to actually hold those individuals accountable under state law is a very real and present question that certainly Brett Kavanaugh was sending very ominous signals about.

Speaker 3 So one other moment from Hensley was just surreal because it involved our friend Sam Alito, and so we had to include it here.

Speaker 3 What I took from your brief is you're saying Boyle's inconsistent with textualism. Who wrote Boyle?

Speaker 3 Justice Scalia wrote. I mean, so you're saying the founding father of textualism doesn't understand textualism.
No, that's not what I'm saying at all. No,

Speaker 3 that's what I took.

Speaker 3 Wow.

Speaker 2 I mean, like, how dare you accuse a great man, Antonin Scalia, who's basically Nietzsche's ubermensch, of any kind of legal flaws or inconsistencies.

Speaker 3 Also, just like Fulton County Smith, I mean, like, Alito in other contexts is perfectly happy to throw Scalia opinions way under the bus.

Speaker 3 Like, it's, I think he just like forgot for a minute that actually he is way to the right of Scalia on a whole bunch of shit. I was like, we could never criticize him.
But

Speaker 3 I felt like he had a weird,

Speaker 3 I don't know, like momentary lapse and he just started repeating Scalia, textualism, founding father. And I don't know.

Speaker 3 That was my read on that. Yeah.
It's very strange.

Speaker 2 It's not great evidence that the right-wing MAGA legal movement isn't a cult

Speaker 3 was another read on that.

Speaker 3 Yeah.

Speaker 3 Okay. So as I think the excerpts we just played make clear, Kavanaugh, Alito, very sympathetic to the contractor, although I wasn't exactly sure how they would like to ultimately write the opinion.

Speaker 3 So they could extend this common law rule under this Boyle case, that's the Scalia case. We talked about it a bit when we previewed this case.

Speaker 3 They extend that as a matter of federal common law or find some sort of constitutionally grounded war powers preemption that Kavanaugh was kind of gesturing towards the Democratic appointees.

Speaker 3 And Gorzich having an oddly normal one seemed pretty clearly on the path to voting against broad immunity. And I just actually wasn't sure where the others were.
So I don't know how to call this one.

Speaker 3 Yeah, me either.

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Speaker 2 Briefly, three other cases from week one.

Speaker 2 One is RICO versus United States, a case about whether the so-called fugitive tolling doctrine applies to supervised release cases, even though it is not in the statute, pitting some justices' punitive instincts against their textualist ones.

Speaker 3 And the facts, recall, involve an individual who improperly left the jurisdiction during a period that she was on supervised release.

Speaker 3 The government argues that this departure, this like absconding, tolled, here meaning something like extended, the period of her supervised release.

Speaker 3 But here, the contrast between the federal parole statute, which does explicitly provide for tolling, and the supervised release statute, a different federal statute that doesn't have any provision for tolling, seemed pretty persuasive to the court.

Speaker 3 And so was what Rico's attorney, Adam Yunikowski, described as this very counterintuitive dimension to the government's argument, which is that they kind of maintained that she wasn't serving her sentence at all during the period of her abscondment, but also that she violated the conditions of her supervised release during that period.

Speaker 3 And it is kind of hard to have it both ways. Yunikowski, I thought, in general, was super effective.

Speaker 3 And in the end, there actually isn't a ton at stake because it turns out, really, whether or not there is tolling only actually impacts the sentence range for several new crimes for which Rico was subsequently charged.

Speaker 2 Court also heard Coney Island Auto Parts, which was part of the civil procedure-heavy November sitting. And the argument was super short, a breezy 40-ish minutes, which never happens.

Speaker 2 The case involves a question about federal rule of civil procedure 60, which governs relief from a judgment.

Speaker 2 So the case arose out of a bankruptcy in which creditors filed suit against a number of entities with unpaid invoices, including Coney Island Auto Parts, with the bankruptcy court eventually issuing a default judgment against Coney Island after they failed to respond.

Speaker 3 So years later, Coney Island says they found out about this judgment when they had a hold placed on their bank account and they moved under Rule 60 to vacate, claiming that they had never been served.

Speaker 3 And so this default judgment should never have been entered. So it had been seven years at this point.

Speaker 3 And the question in the case is whether really that's just too long under the reasonable time standard that some courts, including the Sixth Circuit here, have said applies to motions to vacate void judgments.

Speaker 3 So it's kind of funny, civil procedure case because Lisa Blatt was arguing, there was, of course, at least one entertaining moment, and we will play that one for you here.

Speaker 7 But since, you know, the coming of Justice Scalia in 1986, the court has taken just a different approach to statutory interpretation. And we cite an example of, I think it's U.S.
versus Brogen,

Speaker 7 where all the courts of Appeals had ruled 1001 gives you a right to lie, and this Court just said, you know, we're going to overrule that.

Speaker 7 And I think just last term you ruled against a case I argued when all the courts had gone our way.

Speaker 3 Well,

Speaker 3 speaking of last term

Speaker 3 and lost causes, what do you say about Hewitt and the idea that a judgment that is void ab initio never existed?

Speaker 3 You know,

Speaker 3 we can't see it. It doesn't exist.
It doesn't exist.

Speaker 7 And if it's concededly,

Speaker 7 on its face, it's issued by the Court of Clowns. You have to give effect to the judgment based on race judicata.

Speaker 2 I just love how she speaks to them like they're normal people. Like, it's the best part of it.
Like, you're no big deal. You're just some guy I'm chatting with.

Speaker 3 And somehow they allow it.

Speaker 2 It's a fascinating dynamic. Sometimes.

Speaker 3 It's true. Last term, I guess there were a couple of things that I decided that too much.
this one, they were totally

Speaker 3 fine. Yeah.

Speaker 2 Okay. Onward to another civil procedure case, Haines Celestial Group.
This one involves complete diversity for purposes of federal jurisdiction, remand, and fraudulent joinder. Oh my.

Speaker 2 So the plaintiffs in the case are Texas parents who allege that their son's autism had been caused by heavy metals in baby food.

Speaker 2 They sued baby food manufacturers, Haines Celestial, a Delaware company, along with Sellers Whole Foods, which is Texas-based in state court.

Speaker 2 Hain removed the case to federal court, convincing the district court to remove Whole Foods, which created complete diversity for purposes of federal jurisdiction, i.e.

Speaker 2 all the plaintiffs, all the defendants from different states. And the case then proceeded to a trial that resulted in a ruling against the parents.

Speaker 3 So the Fifth Circuit concluded that the trial court had been wrong to dismiss Whole Foods from the case, meaning there actually wasn't diversity jurisdiction because both the plaintiffs and Whole Foods are Texas citizens, which meant the case should have stayed in state court where the parents should now have a chance to proceed.

Speaker 3 So that's what the Fifth Circuit found. The case is now before the court on the question of the impact of this erroneous dismissal on the plaintiff's chances to proceed.

Speaker 3 And this case actually is a rare opportunity for the court to affirm the Fifth Circuit and also side with some plaintiffs, right, who say they have been harmed, which does seem like exactly what the court is going to do.

Speaker 3 So all of the justices seemed kind of skeptical of a ruling that would prevent these plaintiffs from having their day in state court as a result of this incorrect removal of a defendant from the case.

Speaker 3 And the justices on both sides of the court seem to be be like humming the same tune, which is basically about how the plaintiff is a master of their complaint, which if you took Civ Pro as a 1L, should be a familiar phrase.

Speaker 3 Like Coney Island Auto Parts, this was a strikingly short argument. There were very few questions for the plaintiff's lawyers.

Speaker 3 The whole thing took less than 45 minutes, which was honestly refreshing in an age where there is just such inflation happening, among other places, in SCOTIS argument lengths.

Speaker 2 There was a hot mic moment in this case.

Speaker 3 I missed it. I'm so glad you caught it.

Speaker 2 But one that's way more innocent than the last hot mic moment we captured and covered.

Speaker 2 So, listeners might recall that in the October sitting, this was the last hot mic moment, Clarence Thomas was caught on a microphone saying at the end of the Voting Rights Act argument, where the Republican appointees made clear they're going to nullify somehow, some way, what remains of the Voting Rights Act and blow up the legal protections for minority voters' political opportunities and political power.

Speaker 2 At the end of that argument, Justice Thomas said, see, that wasn't so bad, and got a good chortle, you know, over the whole ending the Voting Rights Act thing before being hushed.

Speaker 2 Um, well, at the end of this argument in Haynes Celestial, the following moment was captured in audio that isn't on the Supreme Court's website, but we were listening real time, and our excellent producers caught it.

Speaker 3 Civil procedure is my new favorite field.

Speaker 3 That's funny.

Speaker 2 So, I think, I think that was the Marshall talking, and it just felt so innocent.

Speaker 2 Like, yes, I too would prefer listening to civil procedure than all of these culture war right-wing grievance fests the court does, which take hours.

Speaker 3 It feels like a normal court, and you can still go have lunch at a week normal hour. Exactly.
I mean, win-win. Yeah.
I think I'm it me. Yeah.

Speaker 3 Okay. So now on to the week two cases.
First up is Lander versus Louisiana Department of Corrections.

Speaker 3 And this is a case about the availability of of damages under a statute called Erlupa, the Religious Land Use and Institutionalized Persons Act.

Speaker 3 And we'll tell you more about the case, but let me just say up top that listening to the argument, I got that bad feeling, like the kind of cold chills that like spread over your skin, that they're going to do real, real damage that could reverberate way beyond Arlupa.

Speaker 2 Totally agree. It seems like they are basically coming for all federal spending programs here.

Speaker 3 And I honestly thought they wouldn't because the facts of this case are so egregious. I assumed that they would not want to own ruling against this plaintiff, but I think I had too much faith in them.

Speaker 2 This is partially why they love Trump. Trump drowns out everything they are doing, and none of the cases that aren't related to Trump just like get major coverage.

Speaker 3 Yeah. I don't know.
We are going to do our part to make sure this one does. So here are the facts.
So Lander, a devout Rastafarian, had grown his hair for nearly 20 years without cutting it.

Speaker 3 Religious exercise, like no question, no one disputes that. He's convicted of simple drug possession.
He's sentenced to five months in state prison.

Speaker 3 He starts serving his sentence and he presents prison officials with a copy of a Fifth Circuit opinion. He shows up.

Speaker 3 He is so worried that he reports to begin serving his sentence with a printed copy of a Fifth Circuit opinion holding that Louisiana state's policy of cutting Rastafarian inmates' hair violates Arlupa, which is a 2000 statute passed to protect the religious rights of prisoners, among other things.

Speaker 3 And the officials to whom he gives this printed copy of the Fifth Circuit opinion initially do respect it and allow him to keep his hair.

Speaker 3 Okay, so then he is transferred with a month left on his five-month sentence to a different facility, the Raymond Laborde Correctional Center.

Speaker 3 And he, again, he has his printed copy of this opinion with him. He shows it to the correctional officials.

Speaker 3 They literally throw the opinion into the garbage, bring him into another room, handcuff him to a table, hold him down, and forcibly shave his head. Truly diabolical conduct.

Speaker 2 So he files suit against the warden and the guards seeking monetary damages, money damages under that 2000 Arlupa statute.

Speaker 2 And the question here is whether that law permits individuals to sue for damages.

Speaker 2 So the Supreme Court has already said that a related statute, RIFRA, the Religious Freedom Restoration Act, does allow individuals to sue for damages.

Speaker 2 And RIFRA, like Arlupa, was passed in response to the Supreme Court in Congress's view under protecting religious liberty.

Speaker 2 Actually, in that previous Scalia opinion, Kate was referring to, Employment Division versus Smith.

Speaker 2 And Arlupa has language that does seem pretty clearly to allow private individuals to sue to enforce it.

Speaker 2 It explicitly authorizes suit, allows for a, quote, claim or defense in a judicial proceeding to obtain appropriate relief against any official or any person acting under color of state law, end quote.

Speaker 2 Seems, I don't know, pretty clear. And if you can sue, traditional thing you can get is damages.

Speaker 3 Okay, so just to take stock here, we have a case holding that private damages are available under a very closely related statute. Sometimes people refer to RIFRA and Arlupa as these twins.

Speaker 3 You have in our Lupa very clear statutory language that Leah just read saying that you can obtain appropriate relief against any official in a judicial proceeding.

Speaker 3 There was a just pretty wild array of amicus support for Lander.

Speaker 3 So everyone from the Beckett Fund to the Constitutional Accountability Center, which don't agree on a whole lot, Senator Ted Cruz, a group of civil rights organizations represented by Americans United for Separation of Church and State.

Speaker 3 I mean, really a very, very long list of people with very diverse ideological commitments on the side of Lander. You had one amicus brief on the side of Louisiana by some sheriffs.

Speaker 3 The Trump Justice Department is even on Lander's side. Like, that is how lopsided this case is.
And yet, these reports are

Speaker 2 going to be to the right, more extreme than the Trump Justice Department.

Speaker 3 And the Trump administration on a lot of these cases, like it cannot be emphasized enough.

Speaker 3 So, yeah, I think it's pretty clear that these Republican appointees are looking for a way to rule against Lander to hold that because our LUPA is spending clause legislation passed by Congress under its power to spend, there needs to be not just the kind of clarity that is in the text that Leah read, but something even clearer, like a super duper clear statement that you can sue for damages.

Speaker 3 And the language in the statute isn't clear enough. So here is Kavanaugh essentially making that point.

Speaker 3 But the hard hard part, as I see it for your case,

Speaker 3 for me, is that you need a clear statement and appropriate relief.

Speaker 3 You know, it's not

Speaker 3 as clear as it could be in encompassing damages. So how do you deal with that? I don't want to water down our precedent on that.

Speaker 3 But at the same time, I want to hear your response to how you get there.

Speaker 2 I feel like we should understand this case as like cross-pressure, you you know, on the justices, kind of like we were talking about with Rico, punitiveness versus textualism.

Speaker 2 We talked about it in the tariffs, like billionaire BFFs safeguarding the Republican Party from itself. On the other hand, like expanding presidential power and giving Donald Trump what he wants.

Speaker 2 Here, on one hand, you have religious liberty. On the other hand, you have the opportunity to gut the modern social welfare state, much of which is accomplished via spending clause legislation.

Speaker 2 And it seems like that impulse is going to win out.

Speaker 3 And it may not be irrelevant that this is not like mainline Christianity.

Speaker 3 If he's being deprived of a different kind of religious liberty, he has a different caste. I wonder if they would be so cavalier about it.
Yeah. Seems like probably not.

Speaker 3 The other big line of argument in the case, in addition to this, the super clear language is lacking here, was that because figures like guards and wardens are not themselves taking federal money and agreeing to conditions, like a condition that they have to respect the religious liberty of inmates, it is only states as opposed to officials that are bound by this sort of condition.

Speaker 3 The Chief Justice seemed to be all in on this.

Speaker 2 And any sort of ruling along any of those lines might not just mean you can't sue under our LUPA. So its protections of the religious liberty of inmates would be functionally unenforceable.

Speaker 2 It would also mean that tons of other legislation passed under Congress's spending power also couldn't be meaningfully enforced.

Speaker 2 And this is especially galling because the Supreme Court, in an earlier decision, Talefsky, just turned away several years ago a broad attack on the ability to sue to enforce spending clause legislation.

Speaker 2 Here's Justice Jackson sort of silently screaming on this point and tag teaming with Justice Kagan.

Speaker 3 Didn't we answer that question in Talewski? I thought we said in the 1983 context that it didn't matter that it was spending clause legislation.

Speaker 1 We said a law is a law.

Speaker 3 We say secured by the laws of the United States,

Speaker 3 secured by laws

Speaker 3 enacted pursuant to the spending clause.

Speaker 2 And remember, they did, I think, like a narrower sneak attack on enforcing federal spending programs in the Planned Parenthood versus Medina case.

Speaker 2 That was the case about whether you can sue to challenge a state's decision to disqualify Planned Parenthood from the Medicaid program in violation of federal law.

Speaker 2 Now they seem like they are going to broaden that Medina ruling even further and suggest that spending clause legislation is even more law-ish, like not like a real law than they suggested in Medina.

Speaker 2 It's more like a cool law that just isn't enforceable.

Speaker 2 And this is, I think, like in this moment, you know, a terrifying posture because of the prevalence of federal spending programs as part of federal welfare programs and because of the president's current posture vis-à-vis federal spending legislation.

Speaker 2 He has basically claimed that he can decline to spend funds in violation of federal law. Under the Constitution, of course, it is Congress that has a spending power.

Speaker 2 But if the Supreme Court isn't going to treat spending clause statutes as real laws, like laws of the kind that people are actually bound to and are enforceable, woof.

Speaker 3 An enormous blow to social welfare programs in general. And even though it was like two beats agolia, I just want to say I did catch that that was, I believe, a mean girl's reference.

Speaker 3 So I'd like my credit for it.

Speaker 2 So this is two weeks in a row, Kate. You're just crushing it.

Speaker 3 I got some culture. Those are movies.
I'm not terrible on movies.

Speaker 3 Yeah, that's true.

Speaker 3 Okay, so one other thing to note: Gorsuch and several other justices really heckled Lander's lawyer, Zach Tripp, about the fact that he was asking for a ruling that would go against the consensus among the federal courts of appeals.

Speaker 3 So let's play that clip here. As I understand it,

Speaker 3 the circuits are unanimously against you and have been for many, many, many years. So saying that something awful is going to happen, it's all right, whatever's happened has happened, right?

Speaker 3 I mean, this was so enraging. The court has been absolutely delighted to upset Court of Appeals consensuses in other cases.
So Shin versus Ramirez in 2022, D.C. versus Heller back in 2008.

Speaker 2 And they had, or you know, I think Justice Corsican Alito, I think it was, had this same faux modesty earlier in the term in the Bowie case, suggesting like, oh, you're advocating for a position that all of the Court of Appeals rejected.

Speaker 2 We couldn't possibly rule in that way.

Speaker 3 They don't put any stock in what the courts of appeals say. They don't even pretend to if you actually ask them what they think.
And yet they just cannot resist the temptation to just layer that on.

Speaker 3 So, you know, I thought this case was going to be a clear win. I thought Zach Trip did a great job, but man, did it look bleak.
Yeah.

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Speaker 3 All right, onward. Next case we wanted to talk about GeoGroup versus Menocol.
This, like the Floor Corp case, is a contractor immunity dispute with potentially significant implications.

Speaker 3 Although on its face, it's about this kind of narrow procedural question involving the availability of immediate appeals.

Speaker 3 So the case case involves claims by ICE detainees against a government contractor who operates an ICE detention facility and who the plaintiffs in the case allege entered into a contract with the federal government to provide detention services, then forced detainees to perform much of the labor actually involved in running a detention center on a contract with the government, like cooking, like janitorial work.

Speaker 3 And this is work that detainees were sent to solitary confinement or denied food if they refused to perform.

Speaker 2 And this case actually came to be in part because a man died in custody performing this work while being paid a dollar an hour for it.

Speaker 2 So Cesar Gonzalez-Baez died in ICE custody from being electrocuted doing work for the LA Sheriff Department because, you know, this contractor also kind of contracted out some of the labor as well.

Speaker 3 So GEO raised what is known as a Yearsley defense, essentially that ICE directed them to compel their detainees to perform this labor and that they were thus immune from suit.

Speaker 3 And they lost that argument in the district court. So the question in this case is whether the contractor gets an immediate appeal from that order.
And this,

Speaker 3 unlike Hensley, actually seemed easier to call. I mean, I hope I

Speaker 3 don't prove to be unduly optimistic, but I did feel pretty good about actually the outcome, the likely outcome in this case, in part because of the flawless performance of Gupta Wessler's Jennifer Bennett, whose praises we have had occasion to sing before.

Speaker 3 She was amazing.

Speaker 3 And I think also possibly, also in part because, although it's not probably going to be enough to carry the day in Lander, but in this case, because the federal government is actually on the side of the plaintiffs, that is the detainees, rather than the ICE contractor, the contractor's arguments about protecting the federal government

Speaker 3 ring a little hollow. Then the federal government is making the opposite set of arguments.

Speaker 2 I just wanted to say one more beat on how amazing Jennifer Bennett is.

Speaker 2 Like she and the team at Gupta Wessler, like they're so good at selecting these winnable cases and being able to identify and channel and engage with and speak to the views of others who are probably not inclined to agree with them.

Speaker 2 Like, again, as you were saying, like, even the Trump administration isn't on the side of the contractor. The contractor is just stretching precedent, making silly policy arguments.

Speaker 2 And I think I really only heard Sam Alito ask a question that was friendly to the contractor.

Speaker 3 All right. So you're with me.
Like, this one is one we can feel pretty good about. Okay, great.

Speaker 3 One more case, and this is on a topic that is near and dear to Leah's heart, Fernandez Fernandez versus United States.

Speaker 3 And that is, of course, a sentencing case and an important federal sentencing case concerning the First STEP Act's amendments to so-called motions for compassionate release.

Speaker 3 So prior to the First STEP Act, the Bureau of Prisons could file a motion in federal court where, quote, extraordinary and compelling reasons warrant a reduction in the term of imprisonment and where a reduction is consistent with the guidance from the U.S.

Speaker 3 Sentencing Commission. The First Step Act, or FSA, amended the law to allow persons who are detained, not just the Bureau of Prisons, to also file these motions.

Speaker 2 And the question in this case is what constitutes extraordinary and compelling reasons?

Speaker 2 And the question specifically asks whether extraordinary and compelling reasons can include reasons that would also provide a basis for vacating someone's sentence under the more general standard federal post-conviction remedy in Section 2255.

Speaker 2 But it's not entirely even clear that this case cleanly presents that question because the petitioner in this case argues that one of the extraordinary and compelling reasons warranting a sentence reduction is that he is actually innocent of the offense he was convicted of.

Speaker 2 And I know this will be shocking, but it is true. It is not clear whether establishing your actual innocence is grounds for federal post-conviction relief under Section 2255.

Speaker 2 This was such a frustrating argument to listen to for... several reasons.

Speaker 2 One is that the justices are just so obsessed with the prospect of possibly opening the floodgates for compassionate release motions.

Speaker 2 Like they are so fixated on looking for ways to limit them, even when those limits ignore like the structure, function, and context of the relevant statute.

Speaker 2 I am working on a law review article about this. It just like drives me nuts.

Speaker 2 But just to like explain the precise issue here, so Congress amended this statute, as you were saying, because Congress thought the Bureau of Prisons was not making sufficient use of these sentence reduction motions, i.e., they weren't filing motions when there were extraordinary and compelling reasons.

Speaker 2 But now some justices like Sam Alito are all in a a tizzy about how before the law was amended, the Bureau of Prisons never sought sentence reductions in cases of trial errors or changes in the law.

Speaker 2 But that just can't be dispositive of whether those kinds of claims can constitute extraordinary and compelling reasons since Congress amended the law because it thought the Bureau of Prisons wasn't bringing enough sentence reduction motions in cases of actual extraordinary and compelling reasons.

Speaker 2 Like, it's just obvious.

Speaker 3 Yeah. That seems like basically unanswerable, and yet not sure the justices were seeing it that way.

Speaker 3 Brett Kavanaugh also wants to read the law to require the sentencing commission to affirmatively authorize a particular ground or basis for seeking a sentence reduction.

Speaker 3 That, too, doesn't really make sense under the statute.

Speaker 3 One advocate tried to suggest that relying on the sentencing commission for affirmative authorization in defining what constitutes extraordinary and compelling reasons would raise questions under Loeber Bright, the decision overruling Chevron, and announcing that courts, not agencies, define legal terms in a statute.

Speaker 3 To which Brett Kavanaugh kind of waved his hands and said, ah, seems like lots of policymaking discretion here, so looks good to me.

Speaker 2 One, one, one singular bright spot in this argument was Justice Jackson, who, as is often the case in these federal sentencing matters, was just extraordinary, pointing out the many ways in which the federal post-conviction remedy is just different than these motions for compassionate release, such that it just doesn't make sense to think of compassionate release motions as end runs around post-conviction motions, even if you can raise similar claims in both contexts.

Speaker 3 I'm reminded of when then, you know, young-ish or younger Katanji Brown Jackson was being put on the sentencing commission in the early Obama administration, and someone in the counsel's office was talking about Justice Jackson and doing an imitation of Justice Breyer talking about Justice Jackson, but he called her Katanji.

Speaker 3 And Breyer, as people know, is extremely fond of KBJ.

Speaker 3 And the imitation went something like, Katanji knows things. She knows things.

Speaker 3 And that was very high praise from Mrs. Breyer.
And one of the many things she knows is sentencing. And it is very gratifying.
She just knows it. And,

Speaker 3 you know, the rest of them just don't.

Speaker 2 Is that one of the ways women ruin the workplace?

Speaker 3 By knowing things? By knowing things. I think that's for sure.
Definitely.

Speaker 3 Like conferences among the justices. Oh, man.
Conference has been ruined by the knowers of things.

Speaker 3 The knowers with the notes. They know things and they take and bring their notes.

Speaker 3 The fun has just been gone for a while now.

Speaker 3 Okay, so let's briefly cover some cert grants and denials. As we predicted, so did lots of other people.

Speaker 3 The court denied Kim Davis's cert petition, which remember, among other things, had asked the court to overrule Obergefell. The fact of the denial was totally expected.

Speaker 3 It was kind of interesting that no one wrote to say, I am still going to overrule Obergefell, which, you know, there have been post-Obergefell separate writings by Thomas that have sort of let it be known that they're going to overrule Obege.

Speaker 3 They have to, right?

Speaker 2 Like you know, you have already emboldened so many state legislatures and other officials to try to chip away at a bergefell if not directly target it right like the texas state system allowing judges to decline to issue marriage licenses you know where they have religious objections so anyways um but the court's denial of kim davis's cert petition generated such unearned good PR for the court because all of the headlines were just court turns away request overrule a bergefell and it just made them seem and look less extreme and reactionary than they actually are.

Speaker 3 Yeah, so modest, so restrained, so demure, so mindful.

Speaker 3 One grant that it's not, I would say it's not demure or mindful, but I think they actually kind of had to take this case. The Fifth Circuit ruling was completely insane.

Speaker 3 Okay, so this is a case that the court granted certain involving Mississippi's rule for counting late arriving ballots. So this is actually a case we've mentioned before.

Speaker 3 A lot of states allow mail-in ballots to be counted if they are post-marked on or before election day, even if they arrive after election day.

Speaker 3 States take a bunch of different approaches to this, but more than a dozen do allow those ballots to be counted.

Speaker 3 And in Mississippi, they allow ballots to be counted if they arrive within five days of the election. Again, so long as they're cast and postmarked on or before election day.

Speaker 3 People might remember there was a lot of litigation over this question in Pennsylvania.

Speaker 3 In this case, the RNC has challenged the Mississippi law, and a divided panel of the Fifth Circuit issued a pretty unhinged opinion finding that the Mississippi scheme wasn't consistent with federal law.

Speaker 2 It's just like, wow, we've discovered after like 100 years that originalism and this statute actually means you can't count ballots after election day, right?

Speaker 2 Just at the very same time that the president, the leader of the Republican Party, has started making these claims. What a coincidence.

Speaker 3 Totally. Although the dynamics of kind of participation and voting by mail and all that, the partisan balance of all this is somewhat in flux.

Speaker 3 And so I don't know exactly how anyone is going to be benefited or disadvantaged, depending on how the court decides this case. I think that the reasoning of the Fifth Circuit was embarrassing.

Speaker 3 And I hope the court rejects the case on grounds of, you know, law, shame.

Speaker 3 Right.

Speaker 3 But in terms of practical impact, I actually don't totally know.

Speaker 3 But in any event, the thing that I think is really important, in addition to disavowing the really shoddy reasoning in the Fifth Circuit opinion, is the timing, right?

Speaker 3 Like it's so important that they not sit on this case as states are gearing up to administer the midterm elections.

Speaker 3 So, they have to decide it quickly so that there is a stable rule and states can conform their election administration to that rule.

Speaker 3 One other cert denial I just wanted to mention briefly that had an interesting statement attached to it.

Speaker 3 So, this case was United States versus Veneno, and the court denied cert, but there was a SCOTIS blog post that I think has just gone up by Right to Democracy's Neil Weir that basically this, the separate statement by Thomas and Gorsuch said that the territories clause, the Constitution, gives Congress power over the territories, rightly understood, quote, does not endow the federal government with plenary power within the territories.

Speaker 3 That's never been said by any federal judge, and it could be a very big deal if embraced by the full court. So, I just wanted to mention that statement.

Speaker 2 And I mean, that's a good thing. So, maybe we should transition to our favorite things.

Speaker 2 Great. Okay.
So, with CrookedCon and travel, I was able to do a lot of reading. So, I have several recommendations.
Broken Country by Claire Leslie Hall was beautiful in just like unexpected ways.

Speaker 2 I loved it. I also read, and I know I've already recommended this one to you, Kate, because it's kind of climate survival-ish, climate apocalypse.
Wild Dark Shore by Charlotte McConaughey.

Speaker 2 Another great book I read, First Light Winds by Ashley Elston.

Speaker 2 In the non-reading bucket, Robin has a new single, her first, I think, in like seven years, Dopamine. It is excellent.
New album coming next year. So cannot wait for that.

Speaker 2 Also, Joyce Carroll Oates social media feed, just murdering Elon Musk over and over. Like great defense of the humanities, of reading, of like just terrific.

Speaker 2 And it called to mind, and I'm sorry, Kate, this is a TV reference, but the show your oats kind of opening conceit in the early episodes of Younger. And I just, I love the confluence.

Speaker 3 I've actually seen that first season. And now I have.
Look at you. Yeah.
Show your oats, right? She gets everybody flashing for Joyce Carol Oates. Exactly.

Speaker 2 And, you know, if her takedown of Elon doesn't, you know, merit doing that again, I'm not sure what will.

Speaker 3 So, yeah, listeners make show your oats happen again.

Speaker 2 One last favorite thing was just getting to hang out in DC, like not only with you, Melissa, Melody, Michael, and the other wonderful people who are part of Crooked,

Speaker 2 but also all of the Crooked Con attendees and listeners. I wanted to give a special shout out to Ben at Alby,

Speaker 2 who is a fan of the show and listens. And I hope that we as a team are able to make it back there

Speaker 2 and get together at Alby with you.

Speaker 3 Okay, so those are great recommendations. I am very excited to read Wild Dark Shore.
I have not started it, but I will.

Speaker 3 I have started listening to the newest season of the Serial podcast, The Preventionist, which is about a spate of removals of children from their families on very dubious grounds of alleged child abuse in Lehigh County, Pennsylvania.

Speaker 3 Totally gripping. Serials still got it, even though they've been going for a lot of years.
I saw Robin has a new single I haven't listened to it yet.

Speaker 3 I didn't realize it had been that many years since like, I mean, I still listen to like Call Your Girlfriend, like dancing on my own all the time. So I'm very excited for a new album.

Speaker 3 Florence and the Machine dropped a new album a couple weeks ago, which is great.

Speaker 3 Leah, you know this, but there was a performance at Symphony Space of the playwright Thornton Wilder's one act, The Long Christmas Dinner, that is just like a great and kind of searing, very short play that

Speaker 3 Friend of the Pod, true friend of the pod, not like Sam Alito, friend of the pod, Chris Hayes,

Speaker 3 was in the reading of. And so is Renee Elise Goldenberry and a bunch of other really amazing.
So much FOMO.

Speaker 3 It was really cool. We should have flown you in for it.

Speaker 3 But that's just like a great show that I did that I did not know.

Speaker 3 Rebecca Solnitz, a year out from Trump's election, Resistance is Everywhere. Really good, uplifting read in The Guardian.
She is amazing.

Speaker 3 So yeah, those are some things that gave me some hope this week.

Speaker 2 I have to just note one other thing. This isn't a favorite thing.

Speaker 2 This is like a thing I hate, but just in this last week of like the waves of misogyny, last few weeks, just like being reminded of, like, listeners, if you haven't, you kind of need to read the New York Times story that provides more details about one of the women victimized by former representative and former Attorney General nominee Matt Gates, you know, human frat prattle with Botox injections.

Speaker 2 Like it just gives more details about her story. And it just makes clear like how our society's like tattered social safety net is part of what makes girls so vulnerable to abuse and exploitation.

Speaker 2 This is like a 17-year-old who, you know, lived in a homeless shelter and needed money for braces. Like it's, it's just excruciating.

Speaker 3 Yeah. Like a teenager doing sex work to raise money to get braces to fix her teeth.

Speaker 3 And any reporting on this story that does not include and high up include that this is the person that Donald Trump wanted to make the Attorney General of the United States is engaging in malpractice.

Speaker 3 But I agree. It's a very hard but necessary read, so everybody should read it.
Yeah.

Speaker 3 Okay, so some housekeeping before we go. Once again, I want to thank everybody who came to CrookedCon and made it possible.
Attendees, speakers, sponsors, we could not have done it without you.

Speaker 3 We really did enjoy meeting listeners. It was awesome to hang out with hosts of other shows.
Ben Wickler, Jessica Valenti, Andrew Golis,

Speaker 3 our friends from Americans United for Separation of Churches and State.

Speaker 3 And they were there and just like so many other great, great people in the fight in various ways.

Speaker 2 Yeah, and getting to hang out in like the take lounge with the, you know, content creators. And again, like getting to hang out with like the people we, you know, work with at Crooked, but remotely.

Speaker 2 I just loved like getting to talk with the listeners, you know, after the live show and taking pictures with them. That is always so fun.
And yeah, it was just wonderful.

Speaker 3 It was great. And turns out there were cameras rolling.
Of course there were.

Speaker 3 So if you were not there, but you are interested in listening to some of the conversations and the panels, et cetera, you can go to crookedcon.com and there will be a bunch of live from CrookedCon content there.

Speaker 3 I guess there's also some exclusive CrookedCon merch for sale.

Speaker 3 You can also, at that same URL, crookedcon.com, sign up to get details for our next CrookedCon, which is coming to you sometime in 2026, just in time for the midterms.

Speaker 2 And Brett Gavana's next Melty, hopefully.

Speaker 3 Hopefully. One of his next Melty.

Speaker 3 Yeah. I mean, I wouldn't mind more, but

Speaker 3 certainly one then.

Speaker 2 Strict Scrutiny is a crooked media production, hosted and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw. Melody Rowell is our senior producer and editor.

Speaker 2 Our producer is Michael Goldsmith. Jordan Thomas is our intern.
Our music is by Eddie Cooper. We We get production support from Katie Long and Adrienne Hill.
Matt DeGroote is our head of production.

Speaker 2 And thanks to our digital team, Ben Hathcote, Joe Matoski, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East.

Speaker 2 Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com/slash at strictscrutiny podcast.

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Speaker 2 Hey, weirdos! I'm Elena, and I'm Ash, and we are the hosts of Morbid Podcast. Each week, we dive into the dark and fascinating world of true crime, spooky history, and the unexplained.

Speaker 2 From infamous killers and unsolved mysteries to haunted places and strange legends, we cover it all with research, empathy, humor, and a few creative expletives.

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Find us wherever you listen to podcasts.

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