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Episode: Jingle Bells, the Fifth Circuit Is Hell

Author: Crooked Media
Duration: 01:10:51

Episode Shownotes

Leah, Melissa, and Kate cover some breaking news before recapping last week’s SCOTUS arguments. They also touch on some lower-court opinions and court culture including the Fifth Circuit going buck wild (yet again), KBJ’s Broadway debut, Mitch McConnell’s never-ending hypocrisy, and TikTok’s fate in America. Follow us on Instagram, Threads,

and Bluesky

Full Transcript

00:00:02 Speaker_00
Mr. Chief Justice, please report. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.

00:00:14 Speaker_09
She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex.

00:00:44 Speaker_16
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 Leah Littman.

00:00:52 Speaker_05
I'm Melissa Murray. And I'm Kate Shaw. And we've got a jam-packed episode for you today. First, we have a little strict scrutiny news to let you in on or maybe to remind you of. We will then cover some breaking news and then recap last week's arguments.

00:01:04 Speaker_05
We'll briefly cover recent opinions and resolutions of pending cases, and we will bring it home with a little court culture.

00:01:10 Speaker_03
First up, a little Strict Scrutiny tea. As you know, listeners, we are big, big readers. We read a lot of books. But the one book we cannot wait to add to our bookshelves next year is from Strict Scrutiny's own Leah Lippman. Yes, you heard it right.

00:01:27 Speaker_05
That's right. Not just readers, also writers.

00:01:29 Speaker_16
Yeah. Well, there's a lot of reading in the writing, but like reading in the drag queen sense, so, you know, little both and.

00:01:40 Speaker_03
All to say the library is open because our girl Leah is about to be a published author.

00:01:45 Speaker_03
Simon and Schuster, I know you've heard of them, will publish her book Lawless, how the Supreme Court runs on conservative grievance, fringe theories, and bad vibes. on May 13, 2025.

00:01:55 Speaker_03
So put it down in your calendars right now so you don't miss your chance to get your copy.

00:02:02 Speaker_05
But don't just put it down in your calendars. Order, pre-order, at least one copy. Ideally, three to five. Superfans should consider double digits. That means you, Sam Alito.

00:02:12 Speaker_16
Or you could send him a Grace copy.

00:02:16 Speaker_03
Harlan Crowe will be sending it to Justice Thomas, I'm pretty confident.

00:02:21 Speaker_05
That's true. You can send your friends, lovers, enemies a copy. All of these things can happen. But do not wait till May. Put your orders in now. So the official Simon & Schuster website has this to say about Leah's book.

00:02:32 Speaker_05
Quote, with the gravitas of Joan Biskupic and the irreverence of Ellie Mestal, Leah Lippman brings her signature wit to the question of what's gone wrong at One First Street. In Lawless, she argues that the Supreme Court is no longer practicing law.

00:02:44 Speaker_05
It is running on vibes. Oh my gosh, I love making Leah listen to us read this. It's the best. I'm going to finish reading the Simon & Schuster website.

00:02:51 Speaker_05
So they go on to say, by vibes, Leah means legal-ish claims that repackage the politics of conservative grievance and dress them up in robes.

00:03:09 Speaker_05
Major decisions adopt the language and posture of the law, while in fact displaying a commitment to protecting a single minority, the religious conservatives and Republican officials, whose views are no longer shared by a majority of the country.

00:03:21 Speaker_05
So this love child, this podcast, in book form, can be yours starting in May. Woodreed, 10 out of 10.

00:03:29 Speaker_03
This is the Luigi Mangione mugshot of books.

00:03:33 Speaker_16
Is that a compliment?

00:03:35 Speaker_03
Have you seen that mugshot? I am not condoning the conduct, but I've never seen a glamour mugshot like that way. This book is on that level. Okay. Well, I appreciate it. Hot, but not murderous. Right.

00:03:53 Speaker_05
Anyway, as I said at the outset, pre-orders are available now. We will put a link in the show note, but you can go to the Simon & Schuster website. You can go to bookshop.org. You can go to amazon.com.

00:04:02 Speaker_05
There will also be an audiobook, so that will be an option as well.

00:04:05 Speaker_03
All right, so that's our strict scrutiny tea. Now for a little breaking news. We always love it when the court makes sure that Leah has enough gas in the tank for a sequel.

00:04:16 Speaker_03
And so it is with great pleasure that we alert you to some news involving our favorite friend of the pod, one Samuel A. Alito, who has been back on his hustle, dissenting from a denial of certiorari in PPOC versus Eau Claire school district.

00:04:33 Speaker_03
The case involves a challenge to a Wisconsin school district's guidance for supporting trans students.

00:04:38 Speaker_03
The policy instructs schools to support students when appropriate or necessary with respect to restroom use, athletic participation, and processes to facilitate living in accordance with their gender identity.

00:04:50 Speaker_16
A group of parents challenged the policy on the ground that it violated the fundamental right of parents to raise their children in the manner of their choosing.

00:05:01 Speaker_16
Specifically, the parents argued that the policy encouraged students to transition and encouraged schools to keep parents in the dark about their children's gender identities,

00:05:08 Speaker_16
The school district argued that this characterization of the policy was misleading, noting that while the policy instructs schools to create gender support plans, those plans were part of the student's permanent school record and therefore always available to parents and guardians.

00:05:21 Speaker_16
But I just, I so appreciate that the week after Sam Alito cannot give two shits about the parents of trans kids, he goes all in on the parents of children and those parents.

00:05:35 Speaker_02
They have rights when they don't want their kids to be transitioning.

00:05:37 Speaker_16
You're getting ahead of yourself.

00:05:39 Speaker_02
You're getting ahead of things.

00:05:40 Speaker_16
It's just incredible. It's incredible.

00:05:42 Speaker_03
It is. We're going to get there, though. So all to say that this case was presented for court review, and the court declined to do so. It's really important to understand the procedural posture here.

00:05:53 Speaker_03
The lower court never got to the substantive questions here about whether or not this policy violated the fundamental rights of parents as protected by the liberty interest in the 14th amendment because they determined that the parents who brought the challenge lacked standing because the policy had never affected them.

00:06:10 Speaker_03
They did not have students in the schools who were trans or who were implicated. by the policy.

00:06:16 Speaker_03
And so at this point, I felt like staring in 303 creative, but I'm glad that some lower courts haven't forgotten this whole jurisdictional wrinkle that you have to observe.

00:06:26 Speaker_03
In this case, the Supreme Court hasn't exactly forgotten those jurisdictional wrinkles because a majority of the justices agreed that standing was still a thing, and they rejected this petition for certiorari on standing grounds.

00:06:38 Speaker_03
And some justices took that personally.

00:06:40 Speaker_05
So Justice Kavanaugh would have granted the petition. And as Leah was just alluding to, so would Justice Alito have. And in fact, Justice Alito wrote a dissent from the denial of cert, which Justice Thomas joined.

00:06:52 Speaker_05
And it was basically a Fox News inflected rehash of these parents' arguments that the schools were encouraging gender transitions and keeping that information from parents.

00:07:03 Speaker_05
obviously tons of tension between this concern and the total lack of concern on display for the parents of actual trans kids in Tennessee.

00:07:13 Speaker_16
It's seriously like he just pulls up chat GPT and asks, how can I be hypocritical based on what I said last week this go around? It was just the timing was art.

00:07:27 Speaker_03
There are lots of justices here who have things to say that are a little inconsistent.

00:07:32 Speaker_03
So for example, one thing that we ought to note here is this fundamental right of parents to raise their children in the manner of their choosing is nowhere explicit in the text of the Constitution.

00:07:42 Speaker_03
This is one of those unenumerated rights that is viewed as fundamental because it is a kind of human right that precedes the state. The state can't give it to you because you already have it by virtue of being human and

00:07:55 Speaker_03
It's just really nice to see Justices Alito and Thomas out here supporting at least this species of substantive due process liberty. Doesn't work for them in the context of abortion or same-sex marriage, but right here, this is where it counts.

00:08:09 Speaker_03
And I just want to say maybe that's a bright spot for us.

00:08:12 Speaker_16
It's substantive due process for me, not for them.

00:08:17 Speaker_05
And even, but to Leah's point, you have to slice it even more thinly because it is for some parents and their choices for their kids and not others.

00:08:24 Speaker_03
Leah Dyson Parents who don't want their kids to transition.

00:08:27 Speaker_05
Kate Sills A pretty, or even to be around kids who might be, I mean, it is a really narrow slice of liberty that they're willing to sign on to.

00:08:34 Speaker_05
But you're right, it is a kind of liberty not enumerated anywhere in the Constitution, so I suppose we should give them that. But I do think that these writings certainly do suggest that

00:08:43 Speaker_05
If and when the right set of plaintiffs, not like the plaintiffs in Scrimeti, the Tennessee case, but the aggrieved parents here, only somehow able to manufacture a stronger standing claim materializes, this case will be back at SCOTUS, and we very much know where two at least of the justices will be on this issue.

00:09:03 Speaker_05
So the court didn't take this case up, but that does not mean the question is not coming back.

00:09:08 Speaker_03
It's definitely coming back. Oh, yeah. Alright, speaking of coming back... We're coming back to these new Trump cabinet picks. Justice Alito wasn't the only one making a strong bid to be included in Leah's lawless sequel.

00:09:22 Speaker_03
The incoming Trump administration is also going to have a bite at the apple. Last week, President-elect Trump announced that Harmeet Dhillon will be his pick to be the Assistant Attorney General for Civil Rights.

00:09:34 Speaker_03
The Civil Rights Division of DOJ is the one that enforces voting rights, the one that investigates police departments for police brutality, and enforces federal anti-discrimination laws. What could go wrong?

00:09:47 Speaker_16
So Dylan is well known in Trump world. As a lawyer, she was co-chair of Lawyers for Trump, a group that in 2020 filed a number of election challenges on behalf of candidate Donald Trump.

00:09:58 Speaker_16
She's especially well suited to lead the Civil Rights Division, according to Donald Trump, because she has made a name for herself, quote, taking on big tech for censoring our

00:10:08 Speaker_16
free speech, that's capital free speech, comma, representing Christians who were prevented from praying together during COVID, and suing corporations who use woke policies to discriminate against their workers, end quote. The new civil rights.

00:10:22 Speaker_16
You heard it here first.

00:10:24 Speaker_05
In other breaking news, we wanted to mention Luigi Mangione in the case of the ghost gun. So we've already alluded here to the principal suspect in the killing of the UnitedHealthcare CEO, Brian Thompson.

00:10:35 Speaker_05
Mangione, the suspect, was apprehended last week after a days-long manhunt. He was apprehended in an Altoona, Pennsylvania, McDonald's.

00:10:43 Speaker_05
And while many individuals, as Melissa referenced earlier, were transfixed by Mangione's strangely kind of glam-shoddy mugshot. Sultry. Sexy. It was.

00:10:53 Speaker_05
We were transfixed by another development in the case, which is that apparently the gun that Mangione allegedly used in the fatal shooting was a ghost gun made with a 3D printer, which should sound familiar to listeners to this podcast.

00:11:07 Speaker_03
Because you know, currently pending before the United States Supreme Court is a case, Garland v. Vanderstock, which considers whether ghost guns are firearms within the meaning of the federal statute that regulates firearms.

00:11:19 Speaker_03
Now, after this shooting, I ask you, is that even a question? Are ghost guns firearms? that they can definitely do firearms things.

00:11:30 Speaker_03
And all of this to say is that I think we are really looking forward to how the court's gun nuts are going to contort themselves to figure out a way to exclude ghost guns from the ambit of this statute when this case is finally decided.

00:11:44 Speaker_03
So watch this space.

00:11:45 Speaker_16
Although I have to say, there is a chance they are going to end up at the right place in this one particular case.

00:11:51 Speaker_05
You're saying even without this? Yeah. The oral argument, partly because Prelogger was just so virtuosic, it did actually seem as though even though we were pessimistic going in, they were maybe going to allow this regulation to stand.

00:12:01 Speaker_03
Well, here's the dream team we didn't see coming. Elizabeth Prelogger, Luigi Mangione, changing hearts and minds. Exactly.

00:12:08 Speaker_05
No one saw that coming. No one did.

00:12:10 Speaker_05
One more piece of breaking news, which is that former podcast guest, current North Carolina Supreme Court Justice, and candidate for that court, Alison Riggs, has, after two separate recounts, narrowly defeated her Republican opponent, Jefferson Griffin, who is a court of appeals judge in North Carolina, which means she should remain on the North Carolina Supreme Court.

00:12:30 Speaker_16
That's usually how those elections work.

00:12:32 Speaker_05
Typically, if you win more votes, which in this case she did by a very narrow margin, so there have been two separate recounts, and she has still won by around 700 votes, which really calls to mind, Leah, you reminding listeners how close these elections in North Carolina specifically have been, right?

00:12:46 Speaker_05
This really drives it home. So you would think, close, but she won. End of story. And yet her opponent seems not to get this.

00:12:54 Speaker_05
because even though the State Board of Elections has, following those two complete recounts, ruled against this outlandish set of challenges he is mounting to disqualify 60,000 votes, he has yet to concede and he may yet try to take those arguments to the North Carolina Supreme Court, the body he is vying for a seat on.

00:13:12 Speaker_05
We don't know as we record this on Thursday afternoon.

00:13:15 Speaker_16
You mentioned the challenges being outlandish. The board ruled, among other challenges, against disenfranchising military and service members who did not provide a voter ID when they cast their ballots. But that's what he's asking to do.

00:13:32 Speaker_05
He's trying to disqualify those votes among others. It is wild.

00:13:36 Speaker_16
This is a shameful effort. I hope it fails. But it speaks to the ripple effects of election denialism in this country, which we are going to be feeling for years to come.

00:13:47 Speaker_05
Absolutely.

00:13:47 Speaker_03
It also speaks to the incredible efforts that were made in North Carolina to turn out the vote. There were really important local efforts to turn this out in particular counties. And it seems like it paid off.

00:14:00 Speaker_03
Even though the win was a narrow one, it was a win.

00:14:03 Speaker_05
Yep. It did. But that's exactly why this stuff is so pernicious, right?

00:14:07 Speaker_05
So if people do see how hard everyone worked to turn out enough votes to actually eke out a win for Riggs, and he manages to use these bad faith arguments to somehow get onto the court anyway, it is understandable that people begin to lose faith in democracy.

00:14:21 Speaker_05
And you know what? Maybe that is the point.

00:14:37 Speaker_16
On that bright note, on to argument recaps. So the court heard arguments in a number of cases last week. First up is Seven County Infrastructure Coalition versus Eagle County, Colorado.

00:14:48 Speaker_16
At issue here is whether the National Environmental Policy Act or NEPA requires an agency to study environmental impacts beyond the immediate effects of the action that the agency has the power to regulate.

00:15:00 Speaker_16
It seems like a dry issue, but if the amicus activity in the case is any indication, this is a case that corporate interests are attentively watching. Why?

00:15:10 Speaker_16
Well, because environmental reviews can make it harder to drill baby drill and develop real estate projects,

00:15:16 Speaker_16
If the court rules in favor of the petitioners and weakens NEPA, it would dramatically lower environmental review standards for infrastructure projects on federal land.

00:15:26 Speaker_03
If NEPA sounds familiar to you listeners, it's because just a few days ago, Donald Trump posted the following message on Truth Social.

00:15:33 Speaker_03
Quote, any person or company investing $1 billion or more in the United States of America will receive fully expedited approvals and permits, including, but in no way limited to, all environmental approvals.

00:15:44 Speaker_03
He then followed this with, get ready to rock in all caps and three exclamation points. This obviously raises some real questions given its conflict with NEPA, but you see the point here.

00:15:56 Speaker_03
NEPA is a real thorn in the side of those who are really interested in this kind of development work and the incoming administration is certainly very interested in this. So here we are.

00:16:08 Speaker_05
That Truth Social post, I was just so torn between wanting to shout that's not how any of this works and can't rule out SCOTUS saying actually maybe that is how this works.

00:16:21 Speaker_03
But the foreign investment that's likely to come from this seems really problematic and also perhaps violative of other laws that aren't even named here.

00:16:30 Speaker_05
But what if the Supreme Court just doesn't have a problem?

00:16:33 Speaker_16
But those two instincts, Kate, I think it is, I want to say more about this later on, but I think it's important to hold to both. Both that that's not how any of this works.

00:16:43 Speaker_16
And of course, we can't rule out the Supreme Court saying that that's how this works. But for this guy, I'll put it right. I'll put a pin in that and come back.

00:16:52 Speaker_05
We'll come back to it. The stakes of this case were so high for deregulation kind of generally that among the amici who submitted an amicus brief in this case was a company owned by oil baron Philip Anschutz. So why is that relevant?

00:17:05 Speaker_05
Well, because Anschutz and his company have very close ties to EPA superfan Neil M. Gorsuch.

00:17:11 Speaker_05
And in October, Accountable.us issued a report detailing Gorsuch's connections to Anschutz, including the fact that Gorsuch served as outside counsel to his company

00:17:22 Speaker_05
and that an in-house lawyer at the company recommended Gorsuch for his seat on the Tenth Circuit. Gorsuch also apparently owned land with a director and an employee of the company.

00:17:32 Speaker_05
And to be fully transparent, as a judge on the Tenth Circuit, Justice Gorsuch recused himself from cases involving Anschutz's company. So, in the wake of this recent report from Accountable.us, he did so again.

00:17:43 Speaker_05
So, he did not participate in the oral argument, nor will he participate in the decision in this case.

00:17:48 Speaker_05
As the report noted, the court's resolution of this case could have major financial benefits for Anschutz, whose companies have a number of drilling projects that require environmental review.

00:17:57 Speaker_05
So, it's actually a really good and important thing that Neil recused here.

00:18:01 Speaker_16
Yeah, and so this is the pin I wanted to come back to because we're detailing this. It's a bright spot in an otherwise bleak landscape. I mean, Gorsuch didn't recuse until Accountable put out this information and the report.

00:18:15 Speaker_16
And I think it underscores that it is important and will occasionally have benefits to stay focused on the core to continue beating the drum about their excesses.

00:18:26 Speaker_16
to say, that's not how any of this works, while not ruling out the possibility that they are going to do the bad, terrible, horrible, no good, very bad thing.

00:18:35 Speaker_16
But at least if you are maintaining, that's not how this works, that's not how this supposed to work, right, they have to own the costs of fucking it up. And I think this is

00:18:46 Speaker_16
We are seeing this play out in the birthright citizenship context, where the text is perfectly clear. People born in the United States are citizens. There is also a federal statute that says the same thing.

00:18:59 Speaker_16
Of course, we cannot rule out the possibility that the Supreme Court is going to blow that all up. But neither should we be saying, well, oh, they just can do whatever they want. Like, law is just politics. No, no, no, no, no, no, right?

00:19:10 Speaker_16
Like, it's fine to acknowledge how law is political. but that cannot boil down to, and these guys are just going to do and can do whatever they want. Like, law has to mean something, and it does here, there, elsewhere.

00:19:24 Speaker_05
I totally agree with all that. I am going to say on birthright citizenship, I would not rule out that one, two, or three of them might do something catastrophic.

00:19:32 Speaker_05
But I actually don't think there's much of a chance that there's more than that to ignore the clear text and consistent practice of the 14th Amendment. So I at least feel not super nervous there. But I think you're right.

00:19:43 Speaker_05
We probably shouldn't rule out any possibility.

00:19:45 Speaker_03
Are you not nervous because there's a history and tradition of respecting the 14th Amendment? Is that why?

00:19:52 Speaker_05
Well, because I think the Constitution means more than what these jokers say. And yes, taking a capacious look at the history and tradition of the 14th Amendment, I actually do think that respecting... Because they've done that how many times?

00:20:05 Speaker_05
They've done what, how many times? Taking a capacious look at the history and tradition of the 14th Amendment. Well, because they don't doesn't mean we don't.

00:20:11 Speaker_16
Well, they were just doing so in that Eau Claire case, right? They were super into the 14th Amendment there.

00:20:16 Speaker_03
So yeah, it's true. Can't rule it out. Yeah. Yeah. Basically, we just got to get some parents to talk about the fundamental rights to raise their children as birthright citizens.

00:20:27 Speaker_05
I'm sure those parents, they're going to be right.

00:20:28 Speaker_03
They got to be the right parents. True.

00:20:31 Speaker_04
You know what I mean? True.

00:20:36 Speaker_03
Nice ones. Anyway, This is a case that pits agency review of environmental impacts against corporate interests, so like really a trifecta of Mother Earth, the EPA, and corporate interests. Seriously, where do you all think this is heading?

00:20:55 Speaker_16
like all of the justices thought the environmental study in this particular case was sufficient. And the question is how broadly they are going to write an opinion about what agencies don't have to do or entities don't have to do as part of NEPA.

00:21:10 Speaker_16
But as to those interests in the case, it seemed to pitch two things the Republican justices hate against one another. On one hand, the environment. not so big fans of planet Earth. On the other hand, they don't like agencies.

00:21:23 Speaker_16
And so here, if they rule against the environment, they have to say that what the agency did is enough.

00:21:29 Speaker_16
And so it seems like they're going to give agencies a pass and tell courts to be reasonable when reviewing agency decisions when agencies are assessing environmental impacts.

00:21:39 Speaker_05
or at least some agencies, right?

00:21:40 Speaker_05
So one possibility I thought was that because the agency involved in this case, even though it's an environmental case, is actually not the EPA, here the key federal agency is the Surface Transportation Board or STB, maybe the court is okay with handing

00:21:55 Speaker_05
that agency a win this time, especially if they can identify another villain here, which was like the DC Circuit with its excessive concerns about the environment.

00:22:04 Speaker_05
So I just kind of had this thought like the Service Transportation Board is like somehow a more MAGA-coded agency and so siding with them rather than the like enviros at the EPA is something that maybe this court could stomach.

00:22:16 Speaker_03
So I'll just say one thing. These environmental reviews, I think they can be incredibly important, especially for large-scale projects that can have major impacts on the environment. But they're also, I think, really unpopular even in localities.

00:22:29 Speaker_03
So if you live in a place like Berkeley, for example, environmental review can really hem up basic things like improvements to a shopping center or a parking lot and stuff like that. Or housing projects.

00:22:41 Speaker_03
Yeah, and so I think this one, it's really interesting. You saw a flavor of this in the oral argument, just sort of the idea that this actually, the fact of environmental reviews, the need for environmental reviews, and so many of them actually

00:22:55 Speaker_03
makes it hard for government to work efficiently. And that was a really interesting strain that didn't necessarily cohere to sort of broader deregulatory talking points.

00:23:05 Speaker_16
Well, also, there's no question that I think courts have taken NEPA to unreasonable ends. So we previously highlighted the district court decision

00:23:14 Speaker_16
that purported to invalidate a piece of Biden's immigration policy because they hadn't considered the environmental impacts of increases in unauthorized migration. And again, no question NEPA has been abused.

00:23:27 Speaker_16
But I think we still want a reasonable decision, right, that preserves some environmental assessments. Yeah. Yeah.

00:23:35 Speaker_03
All right. The next case we'll take up is Qsysis versus United States. And at issue here is, what does it mean to defraud someone of property under federal law?

00:23:47 Speaker_03
Do you defraud someone of property only when there is a traditional property interest like money at stake? Or can you defraud someone when you're just lying about complying with a non-economic term in a contract? So in this case.

00:24:02 Speaker_03
There was a contract which required subcontractors to be a particular kind of business. If the contractor selects a subcontractor that doesn't adhere to those qualifications, are they defrauding you within the meaning of the federal law?

00:24:16 Speaker_03
So a number of the justices here seemed really fixated on the question of whether there is a kind of value in expecting certain services or certain type of services and ultimately not getting them.

00:24:28 Speaker_03
even if there is no actual economic loss or impact to the individual. Here's a clip of Justice Sotomayor, who is pressing Jeff Fisher, the lawyer for Koussis, on this point.

00:24:38 Speaker_07
I'm sorry, Counselor. Let's assume the example that I contract to have a certified plumber fix whatever. All right? And I don't use a certified plumber. I just use a handyman. But the toilet is fixed.

00:24:57 Speaker_07
Under your theory, even if I didn't use a certified plumber because the toilet was fixed, I got money from – I got value under the contract?

00:25:09 Speaker_15
No, I don't think so, Justice Sotomayor. There, the fraud would be promising services that were more valuable. Now, the certified plumber presumably would charge more per hour.

00:25:18 Speaker_07
But I don't understand what the difference between that in this case is. The services the government contracted for was to have a particular type of vendor sell me something.

00:25:30 Speaker_15
But a particular – well, that's not precisely right. I think what happened with the contract here was with Alpha Construction, and Alpha Construction then got to choose its own subsidiaries.

00:25:40 Speaker_07
Now, if the government had an interest – But of a particular – but someone who was certified, someone who had a certain composition.

00:25:48 Speaker_15
So I think you're right about the word certified in a sense. But the certification in your Plummer hypothetical deals with somebody who has greater expertise or experience and therefore charges more. That's how I understand it.

00:26:01 Speaker_07
Sotomayor So what difference does it make if I want someone of a particular quality when I hire a portrait artist? I want that person. I can get a portrait artist from anybody. Here, the government wanted a particular person to provide the service.

00:26:19 Speaker_07
That's unique, what they wanted.

00:26:21 Speaker_16
COLLEEN O'BRIEN And what she's saying is that Penn Department of Transportation, the government agency, valued working with businesses that were certified as disadvantaged business enterprises.

00:26:32 Speaker_16
And the petitioner, Koussis, said that they were subcontracting with a disadvantaged business enterprise, but in fact, channeled the work to its own subsidiary.

00:26:40 Speaker_16
According to the federal government, that was fraud, even if the work was performed and there was no economic harm to the Penn Department of Transportation.

00:26:48 Speaker_16
Justice Sotomayor is suggesting that the question of whether there was fraud turns maybe on materiality. You know, did you get what you paid for, you wanted, not whether there was an economic injury as a result of the deception.

00:27:00 Speaker_03
And there's an interesting moment where it seemed like there was a kind of odd gender schism on the bench with all of the female justices seemingly interested in this question of the materiality of the harm.

00:27:12 Speaker_03
Like, can you be injured or deprived of something even if the contractor gave you something of equal economic value if it wasn't what you actually wanted?

00:27:20 Speaker_03
So here's a rundown of Justice Barrett, Justice Jackson, and Justice Kagan getting in on this point.

00:27:27 Speaker_10
Mr. Fisher, what about this uniqueness thing? Let me kind of bring you back. You mentioned to Justice Sotomayor that uniqueness matters. What about your Grover Cleveland example?

00:27:36 Speaker_10
The one about if you contract for a painting of your grandfather and you wind up with one, say, of Grover Cleveland, that's not exactly what you wanted, but let's say it's of equal value. So you've suffered no economic loss.

00:27:49 Speaker_10
So why or would that qualify as an injury?

00:27:53 Speaker_13
What about the family that says, I — it's very important to me to have a Christian babysitter. We are devout. We want this. This is a characteristic that we're telling everybody this is what we're looking for.

00:28:08 Speaker_13
And someone comes, and they purport to have this characteristic, but they don't, ultimately.

00:28:15 Speaker_15
I think that's egregious behavior, but it's not property fraud. If the babysitter is otherwise fully qualified and performs the services. Now, there may well be a very serious civil suit.

00:28:25 Speaker_15
If you're dealing with the government in that kind of a situation, there can be a 1001 prosecution or maybe a 371 charge. So I'm not saying these things are okay, and I'm not saying the law doesn't provide a remedy.

00:28:35 Speaker_15
But what I am saying is that this is an age-old problem when it comes to fraud. But I think what you're trying to get at, Justice Alito.

00:28:44 Speaker_08
Well, suppose you enter into a contract and you think you're going to get, you pay for gold bars that are worth a million dollars. And instead, you get lots of coal that's worth a million dollars. Have you been defrauded?

00:29:00 Speaker_15
So I don't think you've been defrauded under the property fraud statutes. You may have been defrauded if you were dealing with the government under Section 371, which doesn't have an injury requirement.

00:29:09 Speaker_08
But you really have totally not gotten what you wanted. I mean, you're creating a world where because I have a dollar's worth of loss, It falls within the statute.

00:29:21 Speaker_08
But rather than a dollar's worth of loss, I've gotten something that I have no use for, that I never wanted, that I made clear I never wanted or had use for. It happens to be the same in a marketplace out there, but it sure isn't the same for me.

00:29:35 Speaker_08
I think that this is a terrible deal that I've gotten. And it's not the one that I signed up for.

00:29:39 Speaker_05
All right, so predictions? I thought it was actually kind of hard to read where the court was on this question. It sounded like Sotomayor and Jackson were more skeptical of the defendant's position

00:29:50 Speaker_05
Only Gorsuch seemed clearly on the government side, but maybe because this is a fraud case that doesn't involve a political official, a majority might be open to ruling for the prosecutors slash the federal government because it wouldn't spark the same joy as it would to rule against the federal government in a political corruption case, maybe.

00:30:10 Speaker_16
So an additional wrinkle came out in the case. It seems like this might be another case where the question or issue the court thinks it's taking up might not be presented at all.

00:30:20 Speaker_16
So the federal government said it introduced evidence that Penn Department of Transportation was willing to pay more for contracts with a term requiring certain businesses to be included, the disadvantaged business enterprises.

00:30:32 Speaker_16
So there was an economic loss to the Penn Department of Transportation. And as the federal government notes, they urged the Supreme Court to deny certiorari in this case on that basis.

00:30:42 Speaker_16
So it's possible this case could be headed, as a few others have been, to some kind of non-decision, saying the issue isn't presented or maybe even a dismissal as improvidently granted. I think it's unlikely here, but can't rule it out.

00:30:55 Speaker_05
It's possible, and it's wild. They're already taking so few cases, and they are just dispensing with so many of them, or at least a couple of them, and seem on the path to potentially others. They just want to do as little as possible.

00:31:06 Speaker_05
And as we've said before, I think we're OK with that.

00:31:09 Speaker_03
It is interesting, though, that the federal government made this case and explained that they had presented this evidence and said, do not grant cert on this case. And they were like, no, we're good.

00:31:20 Speaker_16
We got it.

00:31:20 Speaker_03
We got this.

00:31:23 Speaker_05
No, no.

00:31:24 Speaker_16
Can't tell me shit.

00:31:26 Speaker_05
Until the arguments and then you're like, oh.

00:31:29 Speaker_03
Oh, fuck. Damn it. Why didn't you tell me? Why didn't you persuade me, federal government?

00:31:38 Speaker_05
So we've got some other cases to cover. The next one is Feliciano versus DOT.

00:31:43 Speaker_05
And an issue in this case is whether reservists get, quote, differential pay when they are called to service slash up from reserves during an emergency, but where the work that they perform is not actually related to the emergency.

00:31:55 Speaker_05
So differential pay means that in addition to regular reservist salary, they also get paid the difference between the reservist salary and the salary of their regular job.

00:32:04 Speaker_05
So, the statute at issue says that reservists will get differential pay during an emergency. The petitioner argues that the emergency designation is temporal, but not substantive.

00:32:13 Speaker_05
That is, it just reflects the circumstances in which the reservist is called up. So, they get called up in an emergency, they get the emergency pay.

00:32:20 Speaker_05
By contrast, the federal government maintains that the emergency designation also has a substantive connection to the actual work performed.

00:32:27 Speaker_03
At an oral argument, the advocate for the petitioner really doubled down on this argument that the plain language of the statute means that emergency is only a temporal designation. It's not a substantive designation.

00:32:40 Speaker_03
And this raised some eyebrows from some of the justices. So let's roll the tape.

00:32:44 Speaker_11
Well, again, we win on the language of the statute. So I mean, if we aren't speculating, and we're just going to return to ground and go to the language, There's just no way to read this statute in the way that the government wants to read it.

00:33:01 Speaker_12
I mean, I appreciate during has a temporal meaning. But even in your introduction, you said it virtually always means temporal. Aren't there circumstances in which it could be construed reasonably as a substantive connection?

00:33:18 Speaker_03
With this in mind, the justices had a lot of questions about the legislative history of the statute, and specifically the fact that in enacting the statute, Congress explicitly rejected proposals to extend differential pay to anyone who had been called up, suggesting that maybe this was a substantive designation.

00:33:36 Speaker_16
Yeah, and the justices also noted that, of course, the statute doesn't say anyone called up, but instead referred to categories of emergencies.

00:33:44 Speaker_16
Some justices also pointed out that there has been a national emergency in effect since 1979 related to Iranian sanctions, and that it's unlikely we will soon be in a period without emergencies.

00:33:56 Speaker_16
And that means petitioners' interpretation would mean reservists get differential pay all the time, since there would always be a national emergency in effect. So here's Justice Alito on this point.

00:34:07 Speaker_01
Your thinking is that Congress said, well, you know, we realize that there have been national emergencies now for decades and decades and decades, but if we look ahead, we foresee the time when there will

00:34:21 Speaker_01
be peace throughout the world and nothing threatening, and the lion or the wolf is going to lie down with the lamb, and there isn't going to be a national emergency.

00:34:34 Speaker_01
So that's why we've put in, what is it, eight specific provisions that would be superfluous if your interpretation were accepted.

00:34:47 Speaker_16
I have to say, I found this interjection a little chilling, like what sort of national emergencies is Sam Alito envisioning in the future, creating in the future, or some combination thereof?

00:35:00 Speaker_02
Like Nosferatu? Like just conjuring him up?

00:35:04 Speaker_05
Lion or the wolf, yeah.

00:35:08 Speaker_04
wasn't the only one who was a little doomsday here.

00:35:12 Speaker_03
So Justice Kagan, and I think this is the first time they've ever actually been on the same page this entire term. She was right there with him about the oddity of the petitioner's interpretation, given the prevalence of emergency declarations.

00:35:25 Speaker_03
So here she is.

00:35:27 Speaker_08
I mean, but to that point, really, what does Congress believe there are 43 national emergencies now, every time we have a sanctions program in place, we declare a national emergency. I mean, this is just a sort of feature of modern life.

00:35:42 Speaker_11
There are politicians who go on morning news programs and say, we are going to end the authorization for the use of military force, that we are going to end, they don't necessarily say pending national emergencies, but I think that that's a fair implication.

00:35:58 Speaker_11
We are always one election away from ending all pending national emergencies.

00:36:02 Speaker_08
They could change the way- We're not going to have any sanctions programs. We're not going to have any hurricanes. We're not going to- I mean, it just seems like a world which couldn't possibly exist. I don't know. Predictions?

00:36:16 Speaker_16
Feels like he's going to lose. You know, I'm not sure. But another wrinkle that came up again in this case is there was a question about whether the petitioner would prevail under the government's interpretation.

00:36:31 Speaker_16
That is, whether the legal issue or question matters to the case, because this petitioner was escorting military vessels in and out of the harbor, which seems like it could be related to the emergency.

00:36:43 Speaker_16
And the FAA, the agency, has its own regulations, apart from the statute, that might award compensation, even if the Federal Circuit's interpretation about what is generally required under the statute would not.

00:36:55 Speaker_16
And again, you would think these would be the sort of things they would check before granting a case. And yet, this also seems to have escaped their notice.

00:37:05 Speaker_03
That's what happens when you run on vibes.

00:37:08 Speaker_05
For more details, pick up your copies of Leah's book.

00:37:10 Speaker_16
Pre-order! The concept of law is just going to increasingly be fading into the background as these guys just continue to finger paint their way through the US code and the Constitution.

00:37:21 Speaker_02
And these cert petitions. Right. Yes.

00:37:26 Speaker_05
All right. So moving on to the next case, Dewberry Group versus Dewberry Engineers. And at issue here is another pretty narrow question, this one related to trademark litigation.

00:37:37 Speaker_04
I have to say, of course this is a trademark case because just reading it, I was like, which Dewberry is it? Which Dewberry did what? And that's why it's a trademark problem.

00:37:45 Speaker_05
Because you're confused.

00:37:46 Speaker_04
Yeah. Exactly.

00:37:48 Speaker_05
Form and content. Exactly. And specifically whether under the Lanham Act, an award of profit disgorgement can require the defendant to disgorge profits of a legally distinct entity.

00:37:58 Speaker_05
So the Lanham Act requires, as a remedy for trademark infringement, the disgorgement of, quote, the defendant's profits.

00:38:04 Speaker_05
Here, the infringers, who are the Dewberry group, argue that the language suggests that a plaintiff should sue, and thereby make into defendants, all of the entities from which it hopes to recover damages.

00:38:15 Speaker_05
In this case, all of the damages awarded were profits earned by other entities, none of which were actually a defendant to the suit.

00:38:21 Speaker_05
And in addition to the question of whether that was proper, there are also some looming questions about how to calculate the profits. Do they include only money required under a contract or also the fair market value of the contract?

00:38:33 Speaker_16
Now, Petitioner doesn't dispute that you might be able to attribute or assign one entity's earnings or profits to another in calculating how much an entity owes by way of discouragement.

00:38:43 Speaker_16
But on the specific legal question, Justice Barrett characterized the case as having, quote, vehement agreement.

00:38:51 Speaker_16
on the narrow question about whether you can just lump separate corporate entities' profits together and essentially treat them as one, but that there was a lot of disagreement about how and when a court could still say this one company's profits don't capture the full economic realities of what they gained.

00:39:07 Speaker_16
So, lots to say, right, on those more difficult questions, but one thing that stood out for me during this argument was Neil Gorsuch woke up on the wrong side of the fucking bed that morning because he was a big jerk. So, take a listen here.

00:39:23 Speaker_00
I'd agree with you that there are many ways to skin the cat. You can sue these people. You can pierce the veil. You've got all kinds of equitable theories. You just had a great list of them a second ago.

00:39:36 Speaker_00
But as I understand it, the Fourth Circuit below did none of those things. And you all actually agree with that. And you agree that on the question presented, the Fourth Circuit erred. Is that right? No, Your Honor. So Solicitor General's wrong.

00:39:53 Speaker_00
There isn't total agreement here today.

00:39:56 Speaker_14
There is total, if I could answer that two ways. There is total.

00:39:59 Speaker_00
Pick one.

00:40:02 Speaker_14
Maybe I can combine them into one answer.

00:40:12 Speaker_16
It's just like, sometimes there's more than one thing to say in response to your dumb question. Sometimes you're wrong for multiple reasons. And if the point of an argument is to get at what's going on, sometimes there's more to say.

00:40:27 Speaker_02
Sometimes you're doubly wrong, triply wrong, quadruply wrong. Yes.

00:40:31 Speaker_16
You need to get it all out there. But he just doesn't want to hear it.

00:40:34 Speaker_03
I think if he had a good night's sleep, he would be just more receptive to the possibility of those different kinds of wrongs. Anyway. All right. That was the week in oral arguments. We also got some opinions, sort of, from the court.

00:40:50 Speaker_03
So let's do some opinion recaps. First up, Buarfa v. Mayorkas.

00:40:56 Speaker_03
In a unanimous opinion that was authored by Justice Jackson, the court held that revoking a visa based on a determination that there was a sham marriage is the kind of discretionary decision that the federal courts cannot review because it falls within the discretion of an agency.

00:41:11 Speaker_03
And again, this is even though courts can review the sham marriage determination if the visa is initially denied on that basis. So in this narrow context, it's not subject to federal court review. Nine to zero, Justice Jackson with the pen.

00:41:25 Speaker_16
A lot of the cast members of 90 Day Fiance are gonna be in for a, yeah, unpleasant surprise.

00:41:33 Speaker_05
the men's were not happy with our pronunciation of the next case the first time when we previewed it. So we'll get it right this time.

00:41:38 Speaker_05
NVIDIA Corp versus Omen J or Fonder AB, but NVIDIA is the next case we got kind of, but basically in what seems to be a trend, the court didn't actually issue a decision in the NVIDIA case.

00:41:51 Speaker_05
Rather, they dismissed the securities fraud dispute and the crux of the suit, just as a reminder, Since people were so distracted by my mispronunciation, they probably can't even remember what the case was about.

00:42:01 Speaker_05
But it's about a shareholder's claim that NVIDIA did not disclose the extent to which sales to crypto miners rather than gaming companies put the value of their shares at risk.

00:42:10 Speaker_05
The question presented to the court was whether the complaint was sufficiently specific to make out an allegation of fraud under the Private Securities Litigation Reform Act.

00:42:17 Speaker_05
And the lower court said the complaint actually did meet the PSLRA's heightened pleading standard.

00:42:23 Speaker_03
Based on the oral argument, it's probably not surprising that the court chose to dismiss the case on the ground that certiorari had been improvidently granted.

00:42:31 Speaker_03
You'll recall it did the same thing in Facebook versus Amalgamated Bank, another shareholder suit.

00:42:38 Speaker_03
But in the NVIDIA case, throughout that oral argument, a number of the justices commented that the dispute was really, really fact-specific, maybe too fact-specific for them to decide.

00:42:49 Speaker_03
Again, perhaps this was something you might have considered before accepting the case for review, but that's just me, a busy working mom with not a lot of time for bullshit. So here we are.

00:43:04 Speaker_03
Anyway, the case will go back to the trial court and the investors will attempt to prove their case against NVIDIA.

00:43:12 Speaker_16
I love the idea that it's like, oh, this is too fact specific, too many facts for us to parse through.

00:43:16 Speaker_04
Well, I mean, you remember Kennedy versus Bremerton School District where the facts were just so, so specific, we couldn't get them right.

00:43:24 Speaker_16
OK, silver lining is maybe they've recognized they're just not good at facts, and so they won't actually engage with any cases that turn on the facts.

00:43:31 Speaker_04
We do the law, not the facts. We are law finders, not fact finders. We find the lost law that no one's ever heard of, and we surface that.

00:43:42 Speaker_16
So it's not just the Supreme Court that has decided not to do its job or not to decide things. The Fifth Circuit also decided to get in on the quiet quitting shtick.

00:43:53 Speaker_16
The Fifth Circuit decided to rather ostentatiously refuse to decide a case that they had agreed to take up as an en banc court. So the mess here is just incredible. It's messy, very, very messy. It is, and I'm here for it.

00:44:10 Speaker_16
The en banc Fifth Circuit chose to affirm the decision of a district court in a case that it had taken en banc and for which it heard oral argument in May 2023. And it did so without issuing an opinion in the case.

00:44:23 Speaker_16
The order said only, quote, the en banc court heard oral argument in this matter in May 2023. That was more than 18 months ago.

00:44:30 Speaker_16
Moreover, the parties in this case have already endured multiple appeals and remands back to the district court over the course of nine years,

00:44:37 Speaker_16
Another remand would mean that the appellate proceedings in this manner will have delayed resolution of this case by over a decade. Justice delayed is justice denied?

00:44:45 Speaker_16
Had we known that it would take a year and a half after ambach oral argument to issue an opinion, we would not have granted ambach rehearing. We accordingly affirm." End quote. And that's the extent of the order.

00:44:57 Speaker_05
OK, so the most important thing about this order is the insane infighting on display in the separate writings.

00:45:02 Speaker_05
But just for one second to tell you that there was a case here which was about whether plaintiffs could sue and seek civil penalties under the Clean Water Act. But what is the most interesting is no specifics about that legal question.

00:45:15 Speaker_05
But the fact that in addition to this text of the order that Leah just read, the case generated this flurry of separate opinions in which the justices really seem to not give them promotions.

00:45:27 Speaker_03
How sick are you? Are you okay?

00:45:30 Speaker_05
How much... Yeah, a lot of Dayquil. I'm in a lot of Dayquil. That's my excuse. Okay. Yeah. Judges, not justices. The judges of that court. Although we did call them the Supreme Court of the Fifth Circuit last week. That's true.

00:45:41 Speaker_05
That might be why I just inadvertently gave them that promotion.

00:45:44 Speaker_16
Don't blame this on us. They've decided to take on some of the powers that the Supreme Court has here. So we'll get to that.

00:45:51 Speaker_05
Yeah, they sure did. Anyway, so for now, just judges on the Fifth Circuit seem to air some of the court's really dirty laundry, accusing one another of preventing the court from reaching a decision.

00:46:04 Speaker_05
So there is a separate writing by, count them, Judge Oldham, Chief Judge Elrod, Judge Richmond, Judge Jones, Judge Davis, and Judge Ho.

00:46:14 Speaker_03
So basically... They took 18 months, they have nothing to show for it, and so they have decided to stick with the district court opinion, and then, just for fun, offered us 150 plus pages of irreverent sniping. at one another.

00:46:32 Speaker_03
And the TLDR of all of this tea seems to be that the Fifth Circuit en banc split eight to eight over the question of reversing and affirming.

00:46:41 Speaker_03
And there was one judge, the ninth judge, who happens to be one Jim Ho, who apparently refused to make a decision and instead decided, insisted really, on doing his own thing.

00:46:54 Speaker_03
such that the court was deadlocked and couldn't get a majority to do anything. This is the same Judge Poe who seems to always be auditioning to be Justice Thomas's replacement on the Supreme Court. And so

00:47:09 Speaker_03
I don't know if he's going to get the votes of his colleagues when America's next top Supreme Court justice comes to the Lone Star estate. But, I mean, Judge Oldham's separate writing can only be described as pissy. right? He's real pissed.

00:47:26 Speaker_03
It accuses the court of making up a procedural maneuver that doesn't exist. This would be dismissing en banc review as improvidently granted slash ordered or vacating a rehearing order as improvidently granted. I guess a vig.

00:47:39 Speaker_03
He accuses the court of announcing a quote, new shot clock for disembarking a case. That's the first time disembarking has been used. And Judge Oldham underscored all of this by insisting that he emphatically dissented, just in case you were not sure.

00:47:56 Speaker_03
He also adds that, quote, the majority's per curiam opinion is bad, but Judge Davis's concurrence is worse. Meow, bowl of milk, table two.

00:48:08 Speaker_02
This is seriously like Untucked of Drag Race. You're not getting the full story.

00:48:16 Speaker_04
This is a reunion, Real Housewives of New Orleans.

00:48:20 Speaker_16
He saw what Judge Jones did at the National Federalist Society's convention. He's like, I want to be a housewife too.

00:48:30 Speaker_04
I've got big NeNe Leakes energy and you're going to see it.

00:48:34 Speaker_05
Because we're not even done with Oldham, right? We're not done.

00:48:37 Speaker_05
So Oldham, after saying that the per curiam opinion is bad and Judge Davis' concurrence is worse, proceeds then to go after Judge Ho and says that over a period of several years, Judge Ho cast four separate votes that would have led to different results in this case, some affirming,

00:48:53 Speaker_05
some vacating, some reinstating the district court decision in the course of refusing to decide the case as an en banc court, some not. I mean, this is of course in the dictionary under impartial, principled, consistent judging.

00:49:07 Speaker_05
Oldham included a chart showing the different votes that Judge Ho cast in this case?

00:49:15 Speaker_16
Yeah. And not to be outdone, Judge Ho responds by suggesting that maybe the court shouldn't take big corporate cases en banc, but only political ones.

00:49:29 Speaker_16
So he writes, quote, I'd focus our limited en banc resources on advancing the rule of law where we need it the most, protecting our national borders. and protecting our constitutional rights," end quote, from the invading hordes.

00:49:43 Speaker_02
This man could not try harder for that Supreme Court seat. It would be impossible.

00:49:50 Speaker_03
He is already doing so much. It is very Meredith Gray, like pick me, choose me, nominate me. Yes.

00:49:59 Speaker_16
And Judge Oldham is over it, Judge Jones is also over it, and pretty much comes out and says this entire thing is Jim Ho's doing.

00:50:09 Speaker_16
She writes, quote, it is most unfortunate that because of one judge's refusal to vote, this court has taken no position on this issue, end quote. The issue being whether the plaintiffs had standing and could seek the penalties in this case.

00:50:23 Speaker_16
It's just...

00:50:25 Speaker_03
Ten bucks, she had all of his draft opinions in a file and she brandished them during conference and accused him of undermining the judiciary.

00:50:32 Speaker_16
She should have included a video of that, right, in her dissent. That was the missing item.

00:50:37 Speaker_03
I appreciate that she's an equal opportunity destroyer. It's not just progressives like Steve Waddick. She'll eat her own.

00:50:44 Speaker_16
Enough haterade to go around. But just stepping back, it is, of course, a judge's job to reach a decision in a case. Refusing to do so, that is not judicial or judicious. And sometimes reaching a decision requires compromise.

00:51:02 Speaker_16
And of course, that is something that these Fifth Circuit judges are temperamentally incapable of doing. And here, it just puts into stark relief how this temperament, like this approach, is fundamentally at odds with the position of being a judge.

00:51:19 Speaker_03
You know what, Leah? You're not being generous enough here. This is a species of judicial restraint. We are restraining from reaching a conclusion. This is modesty, humility.

00:51:30 Speaker_16
This is the passive virtues I see. Neutral principles. Deciding not to decide. I love it. Judicial minimalism.

00:51:38 Speaker_05
You know what's minimalism?

00:51:39 Speaker_02
Minimalism.

00:51:39 Speaker_05
Just raising your hand and saying, let's talk about the Constitution and the border in a totally fucking unrelated case. That is modesty.

00:51:46 Speaker_16
Minimalism. Also, imagine the post-argument deliberations in the en banc court. One judge, I affirm, I reverse, I vacate, I affirm, I reverse.

00:51:57 Speaker_02
Judge Jim Ho, I refuse, I refuse to cast a vote. What does that even look like or sound like? I think we just did.

00:52:06 Speaker_05
Again, that's not how any of this works. Not how any of this works.

00:52:09 Speaker_06
I think it sounds like how it just sounded. Yeah.

00:52:21 Speaker_05
Although it's hard to top that, let's turn to some additional court culture and culture in other courts specifically. So starting with the TikTok case, the D.C. Circuit issued, what do you know, an opinion in a case. In a very anticipated case.

00:52:36 Speaker_05
about the law that could end TikTok access in the United States.

00:52:40 Speaker_05
Essentially, this law passed by Congress says that TikTok, which is owned by a Chinese company, by dance will shut down by law in the United States by January 19th if it does not find a U.S. buyer before then.

00:52:52 Speaker_03
The law was passed, the government says, out of national security concerns because China has access to all of the data shared by Americans on TikTok, and using that data, it can manipulate the content in a way that poses a threat to national security.

00:53:06 Speaker_03
We should note that some legislators said that the ban was based on hostility to certain content and views, what one Republican representative called

00:53:15 Speaker_03
propaganda, and other Republican representatives suggested was content leading younger people to be too pro-Palestinian?

00:53:24 Speaker_03
Anyway, under the First Amendment, if the law is aimed at suppressing certain content or views, it should get rigorous searching judicial scrutiny.

00:53:33 Speaker_03
If instead, it's not aimed at suppressing content or viewpoints, but is simply about national security, then the review is more deferential. This is why so many people are framing this in terms of national security.

00:53:47 Speaker_16
And even if they do frame it in terms of national security, though, there still seem to be some holes in the government's case for the law.

00:53:55 Speaker_16
So the government doesn't have evidence showing any Chinese content manipulation in the United States, for example. And even if they did, it's unclear if the First Amendment would or should permit censoring content based on the idea that that content

00:54:09 Speaker_16
could corrupt people's minds or unduly sway them or change their views. And just, you know, also stepping back, TikTok is primarily an app for dance videos.

00:54:19 Speaker_16
And they're going to have to pry those surprise song videos from my dead cold hands because watching Taylor Swift's surprise songs on TikTok has literally been a way of, like, microdosing a will to live for me. And they can't take that away from me.

00:54:36 Speaker_16
But The D.C. Circuit unanimously rejected TikTok's challenge to the law. I think TikTok is likely to ask the Supreme Court to put the law on hold while litigation is ongoing, and we will see what the Supreme Court does.

00:54:50 Speaker_03
We do have a bit of good, if entirely unexpected, news. Fresh from her successful book tour, Justice Katonji Brown-Jackson has crossed another milestone from her bucket list. She recently made her Broadway debut. That's right.

00:55:05 Speaker_03
No longer content to answer the door during conferences, the most junior justice recently took her place among the stallers of the Great White Way.

00:55:14 Speaker_03
On Saturday, December 14th, Jackson appeared for one night only in Ann Juliet, a jukebox musical that offers a different slant on Shakespeare's Romeo and Juliet. She also participated in a talkback with the audience following the performance.

00:55:28 Speaker_03
Did any of you see this?

00:55:30 Speaker_16
No.

00:55:30 Speaker_03
not her, but I have seen the musical.

00:55:32 Speaker_05
It is delightful.

00:55:33 Speaker_03
It's a totally beautiful show. It is a delightful. I wish I could see this with her. I was out on Saturday night, but this sounded fun. I wish she'd let us know.

00:55:42 Speaker_05
If you read her memoir, you know she actually is quite a singer. So this is something that, you know, I don't think this was a musical interlude. I don't think it was a singing role.

00:55:50 Speaker_05
I think it was a non-speaking role where she just like did something on stage, but I don't know what. Anyway, I love this for her and everyone in the audience.

00:55:59 Speaker_03
Do you remember when Justice Ginsburg appeared in the opera in D.C.?

00:56:04 Speaker_05
But it wasn't Broadway.

00:56:05 Speaker_03
Broadway is different. I think that's right. But good for her. I love that she's breaking out. Doesn't have to just confine herself to answering the door. She can do other things and I love that for her.

00:56:18 Speaker_03
I hope Dr. Patrick Jackson presented her with an enormous bouquet of flowers afterwards. Oh, you know he did. Yes, of course he did. Husbands Everywhere, take note.

00:56:26 Speaker_05
So in less auspicious news, a Trump judge in the District of North Dakota blocked the Biden administration's rule that allowed DACA recipients to get health insurance on the ACA marketplace. This is a ruling that applies to 19 states.

00:56:40 Speaker_05
So not only are these judges throwing into question the actual status of DACA, and of course the incoming administration will, you know, at best throw it into further question, but screwing with people's health insurance in the meantime, like the sadism really knows no bounds.

00:56:56 Speaker_16
Yeah. Also under the less auspicious category, we had some listeners ask us to flag this development, which is something to add to our cancel culture watch, which is all the things about how left wing political correctness has gotten out of control.

00:57:11 Speaker_16
So this incident comes out of Louisiana, where the Louisiana governor has called on Louisiana State University to punish a law professor for statements the professor made in the classroom about the 2024 election.

00:57:24 Speaker_16
The governor went so far as to share a video of the professor on social media and send a formal letter to LSU calling on officials to punish the professor. Once again, left-wing political correctness and censorship just too much.

00:57:37 Speaker_16
But I think this is a frightening indication of something you alluded to maybe a few episodes a go-kate, which is, you know, the Republican Party treating the Academy as the opposition party and punching bag, since they are always the victim, right?

00:57:52 Speaker_16
They need to identify somebody who is supposedly victimizing them. And as they are about to have all the power in the federal government, you know, they are turning to media, Academy, and others as the victimizers.

00:58:06 Speaker_03
All right, here's some better news. In a unanimous decision, the Montana Supreme Court kept gender-affirming medical care available to minors on current terms while litigation over Montana's ban on such care is pending in the state court system.

00:58:21 Speaker_03
This is a ruling that upheld a preliminary injunction that barred the enforcement of the ban whose constitutionality has been challenged.

00:58:29 Speaker_03
So we've already mentioned that President-elect Trump has tapped Harmeet Dhillon to be the head of the DOJ's Civil Rights Division.

00:58:38 Speaker_03
There's obviously been a lot of discussion about the administration's picks from Matt Gaetz, whose nomination has failed, to Pete Hegseth, whose nomination has not failed, despite some really interesting emails from his mom and some really interesting profiles by reporters like Jane Mayer.

00:58:56 Speaker_03
He seems to be on track to getting confirmed as Secretary of Defense. So, you know, there's that.

00:59:04 Speaker_03
We've also had the selection of Kash Patel to head the FBI and there was news last week of Christopher Wray stepping down voluntarily before he can be fired by Donald Trump in order to install Kash Patel in that seat.

00:59:17 Speaker_03
I don't know what more to say about all of this. It is literally like watching a car wreck.

00:59:25 Speaker_05
Yeah, but also Patel installed, but Patel has to be confirmed by the Senate as well, right? Like there are ways to get him installed in other positions via recess.

00:59:33 Speaker_03
Yeah, you're right.

00:59:34 Speaker_05
I'm assuming the Senate is going to roll over.

00:59:36 Speaker_03
Why would I assume that?

00:59:37 Speaker_16
I don't know. Because when it rains, it pours. We also have some newsy culture items related to judicial ethics.

00:59:45 Speaker_16
So the judicial ethicist expert has weighed in I'm of course talking about Mitch McConnell, who has some opinions so to district court judges have withdrawn their announcements and plans to retire and take senior status, likely because of the change in administration and the fact that

01:00:03 Speaker_16
Their successors weren't confirmed. And Senator McConnell doesn't want anyone else to do that, especially the Court of Appeals judges whom the Biden administration or at least the Senate Democrats agreed not to confirm successors for.

01:00:17 Speaker_16
So on the Senate floor, McConnell called any decision to change plans, quote, partisan.

01:00:23 Speaker_16
it also apparently quote undermines the integrity of the judiciary it exposes bold democratic blue where there should only be black robes end quote said the guy who ensured that the only thing under black robes would be maga red and who was reportedly calling around to judges urging them to retire

01:00:43 Speaker_16
during the first Trump administration. And obviously, this is galling and hypocritical. But I think one thing to underscore about it is it is part of a trend of what I think some people are calling like gangster government.

01:00:56 Speaker_16
I mean, I would be concerned that McConnell is potentially drumming up hostility toward these judges, like, you know, if he is going to go so far as to publicly name and shame them for a change of plans.

01:01:09 Speaker_16
You know, we have seen absolutely horrific episodes of attacks, physical attacks on judges and their families. And I think, you know, this strategy needs to be evaluated in that light.

01:01:24 Speaker_03
Well, I mean, everyone changes their plans. The Senate Judiciary Committee

01:01:28 Speaker_03
was going to have a hearing for Merrick Garland, and then it changed its plans and said, we're just going to wait until after the election and let the people inform the hearing.

01:01:38 Speaker_16
The Senate Judiciary Committee was going to look into the accusations against Brett Kavanaugh.

01:01:42 Speaker_03
Then they changed their plans.

01:01:43 Speaker_16
And they changed their mind.

01:01:45 Speaker_03
I mean, it happens. I mean, yeah. Plans change. Plans change. All right. You know whose plans don't change? The Koch brothers. Their plans stay the same, it seems.

01:01:57 Speaker_03
And according to recent reporting from The Washington Post, Justin Juvenal, John Swain, and Ann Maramo, The Koch brothers had some real plans to overturn the Chevron doctrine and they succeeded.

01:02:09 Speaker_03
So as you know from our own coverage, the Koch brothers network has been very interested in deregulation for some time.

01:02:16 Speaker_03
And as we have intimated on this podcast, it seemed like there were lots of close associations between the effort to overrule Chevron and the interest in deregulation that the Koch Brothers Network has spearheaded over the years.

01:02:29 Speaker_03
So the reporting here was not really surprising to us. As this trio turned up, there are a lot of close associations between this network and the effort to deregulate. Lots of ties between various pockets of the conservative legal movement,

01:02:44 Speaker_03
and the multi-pronged effort to overrule Chevron and then to extend the ruling in Loper Bright and Relentless to thwart even more governmental regulation of corporate interests.

01:02:55 Speaker_03
But one thing that was actually notable about the reporting is that those seeking greater deregulation in the future have relied on amicus briefs filed by those seeking to preserve Chevron, which detailed the many regulations that would be vulnerable if Chevron fell

01:03:11 Speaker_03
and they have used those amicus briefs to craft a roadmap for future challenges that would extend the logic of loper bright and relentless which I mean again raises I think some real strategy questions for the left if these arguments aren't even going to

01:03:27 Speaker_03
Get any purchase with these justices, but they are instead going to seed future efforts to expand this deregulatory interest Maybe we just saw a close-up shop on those kinds of briefs the other thing that I wanted to note about this reporting was They also made explicit note of Justice Thomas's curious 180 degree turn on

01:03:49 Speaker_03
on Chevron, which is to say that he was for it at one point, and then he was against it.

01:03:54 Speaker_03
And while the reporters don't draw any conclusions as to why Justice Thomas had this about face, they do note that his change in his views of Chevron came sometime after he started hanging out at the Bohemian Grove with the Koch brothers and their network of friends.

01:04:10 Speaker_03
And again, I just want to underscore, it's not unconstitutional to have friends. It is unconstitutional to regulate. And change your mind. Yes, and change your mind.

01:04:21 Speaker_16
Unless you're changing your mind about Chevron.

01:04:23 Speaker_03
About the regulation. That's fine. That's fine.

01:04:26 Speaker_16
Some liberties, some parental rights, some changes of mind.

01:04:29 Speaker_03
If your friends help you to change your mind, it's especially constitutional. Yes. Unless your friends are liberal, and then it's not.

01:04:37 Speaker_05
The thing you said a minute ago, though, Melissa, about amicus briefs as roadmaps for future challenges, I feel like dissents present the same problem, right? And I think we've talked about this before.

01:04:45 Speaker_05
They're just really hard tactical questions presenting the court's liberals in the next couple of years, which is, do you speak the truth about the actual implications of some of the court's really big decisions and provide roadmaps

01:04:59 Speaker_05
for actually full implementation, or do you hold your fire? You know? Podcast, too. About us? Yeah. All right. Well, we're all going to be wrestling.

01:05:08 Speaker_03
Are we helping the right? I don't know.

01:05:09 Speaker_05
Similar questions.

01:05:11 Speaker_03
We should put some different Easter eggs in there for them.

01:05:15 Speaker_05
A New Year's resolution. We will get those. We'll get to work on those. You know what would be great?

01:05:19 Speaker_03
Just the ticket. You know what you should do? That's what we should do.

01:05:22 Speaker_05
Yeah. Yeah. Because we know they're all listening.

01:05:25 Speaker_03
Right.

01:05:27 Speaker_05
Okay, we wanted to highlight a case to watch out of the Eighth Circuit that court granted re-hearing on bank in a case about whether mandatory equity training violates the First and Fourteenth Amendments.

01:05:37 Speaker_05
The panel had concluded correctly that it did not, but the court taking the case on bank could be ominous. unless they decide to go the way of the Fifth Circuit, in which case, doesn't matter.

01:05:48 Speaker_05
But this case could be one of the sort of opening or, you know, latest salvos in the new frontier in the fight against DEI initiatives, equity, diversity. So we're going to keep an eye on it as the court takes it up on bank.

01:06:00 Speaker_16
And I think related to that case was another justices Alito and Thomas dissent from the Supreme Court's decision not to hear a case about some admissions policies of Boston schools.

01:06:11 Speaker_16
So Boston City Schools admitted a percentage of students based on GPAs and test scores, and then at the next step considered students zip codes and tried to admit students from areas with lower median household incomes.

01:06:23 Speaker_16
You'll note there was no mention of race there, that is race neutral, but the city schools were thinking about racial equity and trying to achieve diversity, so naturally these guys think it's illegal.

01:06:34 Speaker_16
The Supreme Court declined to hear the case, but their writing, as well as Justice Gorsuch's, which I'll note in a second, is a warning sign of what might come.

01:06:43 Speaker_16
the possibility that the Supreme Court will police race neutral efforts to achieve diversity. So Justice Gorsuch wrote a statement about the case, so not a dissent from the denial of certiorari, but a statement. Making new stuff up.

01:06:56 Speaker_16
In which he noted that Boston had changed its policies, and that's why the court didn't review the case.

01:07:01 Speaker_03
You can never change your mind.

01:07:04 Speaker_16
Well, those policies were no longer in effect, but it's possible they might be looking for another school and another policy to get their grubby little fingers all over. Hard to rule out.

01:07:14 Speaker_03
Well, this is very much in the flavor of the Thomas Jefferson High School case that they denied cert onto. And the bottom line is, is even thinking about diversity unconstitutional.

01:07:25 Speaker_16
The real thought control, thought police, we are about to find out.

01:07:30 Speaker_03
Also related, it seems that the Fifth Circuit actually can issue a decision and can do so en banc, but it seems that that en banc decision-making is really confined to circumstances where they're dealing with DEI.

01:07:43 Speaker_03
So in this particular en banc decision, the Fifth Circuit held that the SEC is not permitted to approve NASDAQ's diversity disclosure rules. So there you are. minimalism, but maximalism. Why not both? Anyway.

01:08:02 Speaker_03
Finally, the Supreme Court is starting an online lottery today for public seating for oral arguments. They're starting it as a pilot program that will begin with the February 2025 arguments.

01:08:13 Speaker_03
It will begin as a hybrid system with some public seats being available via the lottery and some being available through the traditional in-person line. So if you want a front row seat to this disaster piece theater,

01:08:26 Speaker_03
Just go to Supreme Court gov and check out the courtroom seating link and that will get you to the online ticketing page I guarantee there's gonna be some kind of ticket master meltdown in the manner of the era's tour with the weight like with the tens of millions of Taylor Swift ask fans just vying to get in to see them dig some cases.

01:08:47 Speaker_06
I don't know

01:08:48 Speaker_05
I mean, if they take up the TikTok case, I think there will be a lot of interest.

01:08:51 Speaker_05
There are things that will definitely generate, but I just don't get the sense – I haven't been there in a long time, but I don't get the sense that the lines around the block are an enormous problem these days.

01:09:00 Speaker_16
Well, there are the occasional cases in which people camp out overnight, and of course that's what this is designed to address, but yeah, right, as a matter of course.

01:09:08 Speaker_16
It's not like there are hordes of people lining up to hear about Lanhamap profit discouragements.

01:09:16 Speaker_03
I mean, I think that's only because nobody can tell who the Dewberry in question is. I'm going to call one of you Dewberry from now on. Better than Dingleberry. Dewberry. That's true. Dewberry engineers, Dewberry group.

01:09:30 Speaker_05
One last thing before we go. Critics are calling Empire City, the untold origin story of the NYPD, quote, riveting, thought-provoking, and essential listening. If you haven't started it yet, now is the perfect time.

01:09:41 Speaker_05
It has been hailed by Vulture as not just an expose, but a call to action. In just eight episodes, Empire City takes you back to the origins of the NYPD and completely reframes the way we think about policing today.

01:09:53 Speaker_05
Listen to the series now wherever you get your podcasts or binge all episodes ad-free on Wondery plus in the Wondery app or on Apple podcasts.

01:10:03 Speaker_16
Strict Scrutiny is a Crooked Media production, hosted and executive produced by me, Leah Lippman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Michael Goldsmith is our associate producer.

01:10:14 Speaker_16
Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Harringer and Ari Schwartz. Matt DeGroat is our head of production. Thanks to our digital team, Phoebe Bradford and Joe Motosky.

01:10:25 Speaker_16
Subscribe to Strict Scrutiny on YouTube. To catch full episodes, you can find us at youtube.com forward slash at strict scrutiny podcast.

01:10:33 Speaker_16
If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.