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Episode: Making Sense of the Election and What It Means for the Court

Author: Crooked Media
Duration: 00:52:39

Episode Shownotes

After processing the election and thinking through what it means for the future of the Supreme Court, Kate and Leah dig into a Voting Rights Act case newly added to SCOTUS’s docket. They also tackle this week’s cases on the False Claims Act, compensation for hospitals that treat low-income people,

the Fair Labor Standards Act, and federal securities law. Follow us on Instagram, Threads, and Bluesky

Summary

In this episode of 'Strict Scrutiny,' hosts Leah Litman and Kate Shaw analyze the implications of the recent election for the U.S. Supreme Court, particularly regarding women's rights and the aftermath of the Dobbs decision. They discuss the significance of various abortion rights initiatives on state ballots, the potential effects of a second Trump administration on legal protections, and critical court cases such as those involving the Voting Rights Act. The episode also reflects on crucial judicial nominations and challenges related to federal laws affecting hospitals and labor standards.

Go to PodExtra AI's episode page (Making Sense of the Election and What It Means for the Court) to play and view complete AI-processed content: summary, mindmap, topics, takeaways, transcript, keywords and highlights.

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_01
She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

00:00:45 Speaker_03
Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Leah Littman.

00:00:52 Speaker_02
And I'm Kate Shaw. And Melissa, unfortunately, is not with us today. She is literally out of the continental United States, although do not worry, she is not out of the United States for good.

00:01:01 Speaker_02
She will be back and hopefully we'll get her to share some thoughts with us next week. And as you know, if you're listening, we are a Supreme Court podcast. And the court, as we have said many times, is shaped by and a product of electoral politics.

00:01:15 Speaker_02
And this latest election in particular, we also said repeatedly, was going to have some pretty seismic consequences for the Supreme Court.

00:01:22 Speaker_02
But before we turn to a discussion of the election and the court, as well as a discussion of what's happened to the court this last week,

00:01:29 Speaker_02
We wanted to just take a couple of minutes and some time and some space to talk more generally about the election as such.

00:01:36 Speaker_03
We are obviously not an electoral politics podcast, and I'm not going to pretend I have any pronouncements or unique insights about what exactly happened and why it did, but just as a human being, I have a lot of feelings about what happened, as I'm sure many of our listeners do, and wanted to make time for that in part because it would feel weird and disorienting not to acknowledge it, even if it's not our primary content.

00:02:06 Speaker_02
So we are going to try to work through some of that. And after that, we will turn to a discussion that does link what this election might mean more specifically to the Supreme Court.

00:02:15 Speaker_02
And we will finally then break down what happened at the court the past week, including one important case added to the court's docket and also the arguments that the court heard last week.

00:02:23 Speaker_02
But as we said, first, we're going to spend some time talking more generally. Leah, how are you doing?

00:02:28 Speaker_03
I am not great. I am surviving, not thriving. I was really not okay, Wednesday at least. So I'm early to bed, early to rise.

00:02:39 Speaker_03
So when it was clear that the initial returns were going to have things too early to call in many places, I went to bed and set my alarm for early.

00:02:46 Speaker_03
I ended up waking up even earlier than the alarm, like 2 a.m., to see Pennsylvania called for Trump, and I knew I wasn't going to get back to sleep. So I woke up my poor dog. My partner was out of town.

00:02:56 Speaker_03
We listened to some of my, like, cringe, In Your Feelings music, watched the sunrise, watched it play out. and then went off to teach at 8.55 in the morning, at which point the race had been called. And I was not okay that day.

00:03:08 Speaker_03
A colleague stopped by my office before I went to teach, asked how I was, only to have me burst into tears.

00:03:13 Speaker_02
I have definitely been pretty numb since Tuesday night. I think a little bit less numb now, but I think that was my overriding sensation for, I don't know, 48 hours maybe.

00:03:21 Speaker_02
And on Tuesday night, I was at ABC doing their kind of election coverage and also into Wednesday morning. I was kind of processing, but also kind of doing some analysis on the fly.

00:03:30 Speaker_02
Then I went straight from Good Morning America to the Amtrak to Philadelphia to teach administrative law in the afternoon. Honestly, I think because it was just so frenetic, it hadn't really sunk in until after class.

00:03:41 Speaker_02
We did talk about the election some in my administrative law class. Then I said to students if they wanted to talk more to come back to my office after class, and a bunch of them did.

00:03:50 Speaker_02
I feel like that's when it was a little bit more starting to process. One of my students gave me this

00:03:54 Speaker_02
little plush emotional support potato that that is what almost sort of set me off in the same way that your colleagues query sort of set you off that morning.

00:04:02 Speaker_02
But then I raced back to New York to see my husband and my kids for the first time since the new reality had sort of set in. So that was just essentially the sort of scene setter for how my Tuesday to Wednesday looked.

00:04:12 Speaker_02
Okay, so do you want to talk through a little bit what you've been thinking and feeling in the Tuesday to Wednesday and since?

00:04:18 Speaker_03
You know, you described yourself as numb, and I am at a point where this is very atypical. Like, I do not have the emotional space or register for anger right now. It's grief, maybe. Yeah. Have you read the Throne of Glass novels by Sarah Moss?

00:04:36 Speaker_02
No.

00:04:36 Speaker_03
By chance?

00:04:37 Speaker_02
No. I've read some of The Court of Thorn and Roses, the first couple, but this is a different series.

00:04:41 Speaker_03
Yeah. This is another series.

00:04:43 Speaker_03
Analogy might not totally track for you, but there is a world character, Selina Sardothien, where people who have magic, they need to use their magic or it kind of like bottles up inside them and just like becomes uncontrollable and like spills over.

00:04:57 Speaker_03
And I feel like that is going to happen to me at some point with the anger where I am not feeling it or using it now. And at some point, it is just going to become uncontrollable.

00:05:09 Speaker_03
My favorite Peloton instructor, they're not allowed to talk about politics, but said on the post-election class, you either need to lean into the dissociation or the anger. And I feel like I'm into dissociation right now.

00:05:21 Speaker_03
But, you know, we said this was going to partially be about feelings, and I think part of what is driving this for me is this was the first presidential election since Dobbs.

00:05:29 Speaker_03
A big part of the Democratic Party's strategy was to run on that, the consequences of the decision, to point out that the Republican Party had succeeded in bringing about a world where

00:05:38 Speaker_03
Women are dying where women are bleeding out in hospital parking lots and to have a majority of the country Vote for that for no life-saving health saving health care for you is a gut punch Like it's not just an electoral college win.

00:05:49 Speaker_03
It is a majority of voters And for at least for me, it's been made worse by some of the pre-election and immediately post-election retrospectives that blamed flagging support for the democratic party on the democrats emphasis on women's lives.

00:06:04 Speaker_03
And after we recorded the last episode, ProPublica released an additional story about another Texas woman, really a girl, who died because Texas' abortion restrictions delayed her medical care.

00:06:14 Speaker_03
Nevaeh Crane was 18 when she learned she was pregnant, but on the day of her baby shower developed a fever. severe abdominal pain. She was vomiting.

00:06:22 Speaker_03
She was turned away by two emergency rooms, including one that had diagnosed her with sepsis, the life-threatening and quickly developing infection. But because her fetus had detectable cardiac activity, she was sent away.

00:06:34 Speaker_03
At the third hospital, they insisted on multiple ultrasounds before moving her to intensive care. You know, at which point it's too late, her organs started to fail, and hours later, she is dead.

00:06:43 Speaker_02
That was such a gutting story, and it really underscores how, in a post-Roe world, in states with these savage abortion restrictions, pregnant women and girls are treated as basically radioactive.

00:06:56 Speaker_02
Healthcare providers are terrified of offering them what might be the needed, in this case, life-saving medical care, which is an abortion procedure.

00:07:04 Speaker_02
They knew that she had sepsis and all of the physicians and other medical personnel know that as a life-threatening and sometimes incredibly fast-developing and deteriorating infection, and yet nobody would provide her the basic care that she needed.

00:07:19 Speaker_02
And anyway, the story, if you haven't read it, just does detail the excruciating kind of progression of her illness, the delay, the resulting horrific symptoms, extreme pain, essentially torture, and ultimately her death.

00:07:30 Speaker_02
And you said, Leah, like that's what people voted for. And there's no question that, you know, in I think tangible terms, that is what they voted for. But what is way less clear to me is whether that's why they voted the way they voted. Right.

00:07:43 Speaker_02
And I, too, have read and listened to a lot of long think pieces in the last few days. And I'm, you know, I'm sure a lot of our listeners have as well.

00:07:50 Speaker_02
And there is a ton to unpack, and I too have very little tolerance for one of the kind of rounds of recriminations that we're hearing, which is that there is too much focus on abortion and on women's issues.

00:08:02 Speaker_02
But one thing that I do think is clear from the more clear-eyed analyses that are out there is that Harris really did run a kick-ass campaign, and you can quarrel with a thousand discrete choices that were made.

00:08:12 Speaker_02
But also she was in an essentially impossible position, in hindsight at least, as basically an incumbent running in both an anti-incumbency moment and also one which people feel like deeply squeezed by inflation and high housing prices and things like that.

00:08:25 Speaker_02
And also that the media landscape has shifted in a way that was immensely favorable to Trump and

00:08:30 Speaker_02
also that he had billionaires pumping hundreds of millions of dollars into his cause, and that those things were kind of a perfect storm of insurmountable electoral forces.

00:08:40 Speaker_02
And again, I also want to make clear that Podsafe guys did a great day after kind of analysis of some of this and there's data out there and there's going to be a lot more data in the coming months.

00:08:48 Speaker_02
So there are lots of really smart people like trying to go deep on understanding.

00:08:51 Speaker_02
And in some ways, while I feel exhausted by all of already the retrospectives, I also in some ways find it easier to look backwards at what happened than to really dwell in the what is coming. I don't know which is worse, which is harder.

00:09:03 Speaker_02
They're both really important, but I just don't think we really in terms of the backward looking piece of it just really know yet.

00:09:08 Speaker_03
No. And again, just more feelings.

00:09:11 Speaker_03
I have been extremely frustrated by people using Kamala Harris' loss to just confirm their priors and insist, you know, had she done this one thing that obviously I've believed in or agreed with, right, for the better part of a decade, she would have won.

00:09:26 Speaker_03
The evidence is just way too complicated for that. There wasn't a sole cause. This was not a close defeat, right, in many respects.

00:09:36 Speaker_03
So the idea that there was just one thing on the margins seems a little odd, but it wasn't a campaign that was about identity politics and wokeness.

00:09:45 Speaker_03
And the idea that she was too centrist, I mean, several more Democratic centrist candidates outperformed her, as did more progressive ones.

00:09:53 Speaker_03
And everything that people say she didn't do, right, Donald Trump didn't do, right, specific policy plans and whatnot, You know, Sherrod Brown, who is like the champion of the working class, lost in just one of the more horrific defeats.

00:10:06 Speaker_03
And it's hard to overlook, as you were saying, the hyper-partisan media polarization and Republicans' creation of a media ecosystem that churns out propaganda and disinformation about Democrats and their views.

00:10:19 Speaker_03
Turns out it's not the drag queens and the LGBTQ community doing the indoctrinating, right? It is the right-wing media ecosystem.

00:10:27 Speaker_03
You can have the best policies, popular policies, but if they're not effectively communicated or breaking through, they're not going to do anything, right?

00:10:34 Speaker_03
And if they are not tangibly leading to people's material conditions being improved, it just doesn't matter, right? And even policies that do, right? Like the child tax credit, right? That does improve people's lives and still it's not popular.

00:10:46 Speaker_03
And so there's just this host of complicated conditions. Obviously, the last few years have been extremely tough on people, as you say.

00:10:53 Speaker_03
So people wanted to vote against the status quo, and it just so happened that voting against the status quo and incumbent here was voting for a wannabe fascist who cozies up to dictators, is openly contemptuous and hostile of women, refused to accept his loss in election, undermine the peaceful transition of power,

00:11:10 Speaker_03
And all of those factors can't get away from the reality that a majority of Americans voted for that.

00:11:17 Speaker_03
But some combination of looking backward and looking ahead, I don't think institutions, be they Congress, the federal courts, mainstream media, are going to save us.

00:11:26 Speaker_03
And at this point, I think it's a mistake to go all in and defend those institutions that are incapable or unwilling to stand up to the administration and that people rightly, I think, perceive as woefully failing them.

00:11:38 Speaker_03
Like, we need something different.

00:11:40 Speaker_02
if we do believe in democracy, people seem really unhappy with those institutions. So doubling down on the defense of deeply flawed and also deeply unpopular institutions can't be the sort of main action item going forward.

00:11:52 Speaker_02
One thing I do think is worth shoring up and defending is the Constitution. And I don't want to sound naive and suggest that that will save us either, but that there are individuals inside institutions, whether that's like

00:12:04 Speaker_02
various levels of government, state, federal, local, civil society, outside organizations. I don't think abandoning the Constitution in the course of abandoning institutions is the right way forward or is something that we can survive.

00:12:18 Speaker_02
And again, I don't want to be naive, but I do think that

00:12:21 Speaker_02
what I mean by the Constitution is a number of the core values of free expression including to dissent and due process and equality and the core principles in the Constitution will have to be defended by, again, individuals within institutions and outside of institutions because I think if we abandon that as well, not to suggest that it's infallible, but that it has in it the core components that actually will supply some fodder for meaningful opposition

00:12:50 Speaker_02
And in some ways, that's what we have to work with. And so I think in the interest of not succumbing to nihilism, that's not something I'm willing to do.

00:12:56 Speaker_03
Yeah. So I don't want to succumb to nihilism either. And I feel like we'll talk a little bit more about that. But for me, whether like shoring up the Constitution depends a little bit what you mean by, you know, the Constitution, right?

00:13:10 Speaker_03
Obviously, the principles you named, I think are worth fighting for, right, and trying to reinforce equality, due process, ability to dissent.

00:13:19 Speaker_03
But I'm worried that shoring it up in terms of the Constitution also means shoring up the court, given people's understandings of how things work, and that, like, the court, right, is kind of the definitive interpreter of the Constitution, even though, like, I don't think that that's descriptively necessarily accurate, right, nor institutionally ideal.

00:13:37 Speaker_03
But I just kind of worry about that framing, in part because I think some of the reasons why our institutions are

00:13:43 Speaker_03
ill match to standing up to the administration and have been failing people are in part attributable to the Constitution, like electoral college, Senate malapportionment.

00:13:52 Speaker_03
And so I don't really know exactly how I think the best way of like framing the principles worth fighting for is, but obviously I agree. abandon everything just in favor of nihilism. That's certainly not what I hope would happen.

00:14:04 Speaker_03
But just to go back to debriefing the elections results, something else I really put off by in addition to the simple monocausal explanation that confirms all my priors shtick that a lot of people have going on is

00:14:17 Speaker_03
I don't think we should be blaming entire groups or pointing fingers in that way for the loss. Obviously, we saw the huge swings among certain demographics.

00:14:25 Speaker_03
I know a majority of white women voted for Donald Trump, and I still am not okay with accepting the disastrous consequences that a second Trump administration will have for many of those people. We obviously just described the ProPublica story.

00:14:38 Speaker_03
I don't wish that on anyone. I wanted Vice President Harris to win because I wanted people's lives to be better, and I still want that. I also don't think it was stupid, right, to try to win.

00:14:48 Speaker_03
And one of the happier and prouder things looking back on is we saw so many pictures and got so many messages that people in like strict scrutiny gear and strict scrutiny listeners participating in. organizing, getting out the vote, and whatnot.

00:15:03 Speaker_03
And I never think it is stupid to have hope or to try, right, to make things better. And I also believe there is already evidence that it worked.

00:15:12 Speaker_03
If you look at the differentials between how Vice President Harris did in swing states where there was a ground game and more campaigning versus other states, right, she outperformed relative in the swing states, which suggests that kind of stuff matters, right?

00:15:26 Speaker_03
Talking to people matters. Organizing and trying to persuade people matters.

00:15:36 Speaker_02
So we've mostly been talking about the top of the ticket, but can we also talk a little bit about the ballot initiatives and abortion in particular? Yes.

00:15:44 Speaker_02
On Wednesday when I was talking to my students, one of the things I said was, while I obviously did not want to downplay the importance of the presidential election, there were lots of other elections too.

00:15:51 Speaker_02
And for people who are in a very dark place, it might be worth spending some time thinking about another race for a candidate, an initiative, something that did go well.

00:15:59 Speaker_02
And it just is a reminder that democracy is complex and it is layered and sometimes so are people's motivations, which leads me to some results. I think we need to just like spend a couple of minutes unpacking.

00:16:08 Speaker_02
So there were 10 states with abortion on the ballot, and it did well. Like it got a majority support in eight of those states. It actually was, you know, passed in seven of those states.

00:16:18 Speaker_02
The differential between seven and eight is Florida, of course, where a little north of 57% of voters did want to adopt Amendment 4, which would have

00:16:24 Speaker_02
added robust abortion protections to the Florida Constitution, but it requires a 60% threshold to actually amend the Florida Constitution, so they fell short of that threshold. You had 57% vote yes, and 56% voted for Trump.

00:16:38 Speaker_02
And that is just such a striking figure. And the other one that I think is just so striking is Missouri, which is a state that has a total abortion ban, no rape exception. I think it was the first state to pass a total ban after Dobbs.

00:16:52 Speaker_02
And voters amended their state constitution to add protection for abortion to the point of fetal viability. And in Missouri, Trump won by 18 points. Josh Hawley was reelected to the Senate by 15 points.

00:17:04 Speaker_02
So do you have any thoughts on either abortion's performance overall on the ballot or those two states in particular?

00:17:10 Speaker_03
I'm not sure I have it on those two states in particular.

00:17:13 Speaker_03
This is definitely something I want to know more about and that I hope sociologists, political scientists, you know, can tell us a little bit more about because all I have is anecdata, you know, just based on my own canvassing and phone making.

00:17:26 Speaker_03
here in Michigan, which had adopted a reproductive freedom for all ballot initiative in 2022.

00:17:31 Speaker_03
And then obviously voted for Donald Trump at the top of the ticket in 2024, although we voted for Alyssa Slotkin right in the Senate and also expanded the majority of progressive justices on the Michigan Supreme Court.

00:17:45 Speaker_03
So, you know, there were some like happy statewide races as well. But again, some things that just came up in canvassing, and this is anecdata, so take it with the grain of salt that it is.

00:17:54 Speaker_03
Some of it is probably going to be confirming my priors, although I think it's consistent with this evidence. I think there was considerable confusion and misunderstanding about the significance of state-level protections.

00:18:05 Speaker_03
I think some people, honestly, including medical providers, thought that a state protection for reproductive freedom insulated them from the consequences of a anti-choice, anti-abortion federal government. That is just not true, right?

00:18:18 Speaker_03
Like state laws cannot provide immunities from violations of federal law. They can't provide defenses to violations of federal law. So I think some was a confusion, misunderstanding.

00:18:27 Speaker_03
Some of it was just like a permission structure of, well, like I want to vote for Trump, but I don't want that aspect of it. So allowing yourself to do both.

00:18:35 Speaker_03
I think some people honestly thought it was like a signal of something to the Trump administration where like if there was enough support for reproductive justice, then

00:18:45 Speaker_03
In fact, the Trump administration wouldn't sign an abortion ban by selling them this false idea that he was not interested in or willing to cater to anti-choice elements of the Republican Party, which is obviously a core constituency, like the candidates he is reportedly considering for attorney general.

00:19:01 Speaker_03
Three of the five have come down and endorsed the idea that the Comstock Act should be enforced as an abortion ban.

00:19:08 Speaker_03
I think some other people were doing a calculus, which is, well, maybe with some additional money, right, I can travel and save myself. Some were subordinating it to other concerns, you know, as, frankly, white women have long done.

00:19:20 Speaker_03
People have been telling them that the Republican Party was going to attack reproductive freedom and they still vote for it. You know, I said I didn't have the emotional energy or register for anger right now. I assume that's going to come back.

00:19:32 Speaker_03
It has to. But I do want to just pause over the people who said overruling Roe was some great political gift or would be a great political gift for the Democrats for eternity. That was not true at the time.

00:19:48 Speaker_03
And I feel like more than a few women were trying to say that.

00:19:53 Speaker_03
or if it was true, right, or if it ends up being true, right, in some future election that, like, votes out Republican control and exit polls indicate it's on reproductive freedom, it is going to be on the backs of women who lost their lives and health.

00:20:06 Speaker_03
And I look back and I think back, I remember many of the people that said it, and it upsets me. So what are we thinking about where to go from here? I don't know exactly what the next few years pretend. I don't think anyone does.

00:20:19 Speaker_03
I know they will be difficult, likely catastrophic in some ways. And for some people, I know that the thought of doing 2017 to 2021 all over again, as far as organizing resistance and protests, just seems exhausting.

00:20:30 Speaker_03
Also understand the impulse to turn in, right, in part because of real questions about

00:20:35 Speaker_03
what a second Trump administration is going to do as far as weaponizing the federal government against critics and perceived political opponents but am not willing to kind of give up and acquiesce and want to underscore that like my pointing out that explanations are multifaceted for what happened in the election is not an excuse to excuse people of the choice they made or to buy into silly civility discourse tropes but refusing to just go along

00:21:04 Speaker_03
with whatever happens doesn't mean like I'm not going to need and won't actually be taking breaks and seeking comfort in all of the aspects of our lives that give us the energy to proceed on. You know, I haven't been online much since the election.

00:21:20 Speaker_03
One of my favorite lines from Vice President Harris's concession speech was, you know, we fight back by choosing to continue living our lives and that small active

00:21:29 Speaker_03
Resistance right is something so as being kind to others and caring about them and more will be asked of us And I hope we step up to help the disfavored individuals and groups who will be targeted or at least Stand with them also having very little patience with the people's whose immediate instinct after this is to throw Subordinated groups groups that will bear the consequences many of the consequences of a second trump administration under the bus But I'm not going to leave myself and the people I care about to the mercy of whatever the next four years is going to bring

00:21:57 Speaker_02
One other thing that I've been sort of thinking about in the last couple of days is I'm older than you, so I don't know how exactly what your experience of 2004 was, but I was in law school.

00:22:07 Speaker_03
I was alive then.

00:22:09 Speaker_02
I'm aware of that.

00:22:10 Speaker_03
I voted in the election.

00:22:12 Speaker_02
You were not a law student. I was. And so I was thinking a lot about like the day after that election as I was with my students the day after this election 20 years ago. And I think that there has been like a real

00:22:22 Speaker_02
sanitization of the George W. Bush administration because he was such a more normal-seeming in lots of respects Republican, conservative Republican president as compared to Donald Trump.

00:22:32 Speaker_02
But if you wind the clock back to 2004, it was a truly devastating defeat for many on the left. And I had been in Wisconsin just doing door knocking and stuff for Kerry with like law school classmates and friends.

00:22:45 Speaker_02
It was a similar kind of background in that It was, you know, George W. Bush had become the president after the Supreme Court decided Bush versus Gorin kind of handed the presidency to him.

00:22:53 Speaker_02
And then for many people, it was a totally disastrous presidency. You know, Iraq war, totally unjustified, started under false pretenses. And it just seemed impossible that the American people would reward that conduct with a second term.

00:23:06 Speaker_02
And then they did. And so that was a kind of pretty devastating result that sank in over the course of the night and the next day. And it just felt like the Democratic Party is completely lost. And it was hard to see how it ever would come back.

00:23:17 Speaker_02
And then four years later, Barack Obama was elected president. And I am not at all suggesting that, again, the second term of the Bush administration was comparable to what the second term of the Trump administration is going to be.

00:23:27 Speaker_02
And I also think that there have been real significant

00:23:31 Speaker_02
and pretty devastating changes in things like the media landscape that I think do create a totally new set of obstacles to seeing a real transformation in four years time that we did between 2004 and 2008.

00:23:42 Speaker_02
But I do think the point remains that mobilization can work and if he governs as promised, many things will be wildly unpopular and wins can change relatively quickly in politics.

00:23:52 Speaker_02
And so I do think that for folks for whom this is like the first experience of this kind of political devastation, maybe that's a useful little bit of history from an elder.

00:24:01 Speaker_03
So we received some questions from listeners about legal issues that might arise in the second Trump administration, which we'll touch on briefly before moving on to the court and the election.

00:24:10 Speaker_03
So one question was, how do state-level protections for reproductive freedom relate to a possible federal abortion ban or revival of the Comstock Act? You know, just to reiterate, state law does not provide a defense to federal law.

00:24:22 Speaker_03
It cannot immunize people from violating federal law. So what does that mean?

00:24:26 Speaker_03
If the federal government indicts you for violating federal law, it is not a defense to say my state adopted constitutional protections in the state constitution that allow me to do that.

00:24:36 Speaker_02
Another question that we received is along the lines of, can women who are killed or injured because of or by abortion bans sue either states for damages or the justices who overruled Roe and allowed abortion bans to go into effect?

00:24:48 Speaker_02
And also, emphatic no, states and justices are immune, cannot be sued for damages, absent certain kinds of inapplicable exceptions here.

00:24:56 Speaker_02
And so, no, the remedy, it may be legal long-term, it may be political short-term, but it is not in those kinds of lawsuits.

00:25:11 Speaker_03
And now on to the election in the court. Just warning without Melissa here, our transitions are going to be orders of magnitude worse. This is what you get. So what does the election mean for the Supreme Court?

00:25:23 Speaker_03
You know, as we've talked about before, it still seems likely there were probably going to be some retirements. In particular, Justices Thomas and Alito seem pretty likely to step down.

00:25:34 Speaker_03
I mean, recall that reporting about Justice Alito indicated that his wife had indicated he wanted to step down. So that in particular seems like it's going to happen, which of course makes you wonder

00:25:46 Speaker_03
Who are some possible replacements now that Donald Trump is president? And given the majority in the Senate or the apparent majority in the Senate, you know, they don't need the votes of Lisa Murkowski or Susan Collins to confirm the replacements.

00:25:59 Speaker_03
So that's the landscape we're looking at.

00:26:01 Speaker_02
Yeah. And can I say one thing about timing? Also, I would imagine also we're not just talking about in the first term, but in the first half of the first term, because midterm elections, typically party in power loses seats.

00:26:10 Speaker_02
And there are some indications the Senate map actually could be favorable in certain ways to Democrats. So I would imagine in the next six months kind of announcement, at least for Alito Thomas, who is older, he's 76, Alito's 74.

00:26:21 Speaker_02
But I do feel less sure about just because I think he so relishes this kind of like elder statesman role.

00:26:26 Speaker_03
Trolling the libs as an elder statesman. Yeah.

00:26:29 Speaker_02
Yeah, so who knows, but I think you're right that Alito is relatively soon. I mean, I can't believe we have to walk through this short list, but... This is the world we're living in.

00:26:38 Speaker_03
Here we go. Obviously got to throw out Judge Jim Ho on the Fifth Circuit, the guy who called on the Supreme Court to overrule Roe in the Dobbs case.

00:26:48 Speaker_03
He wrote the opinion in the Miffa-Pristone case in the Fifth Circuit saying that the Comstock Act prohibited the FDA's approval of Miffa-Pristone.

00:26:57 Speaker_02
And that OB-GYN suffered aesthetic injury when they did not get to deliver babies.

00:27:02 Speaker_03
i.e. states can commandeer women's uteri to spark joy. And again, just to underscore, even Sam Alito said the doctors in the Mipha-Pristone case didn't have standing. The potential replacements include guys who said they did.

00:27:15 Speaker_03
That's who we're looking at.

00:27:17 Speaker_02
They did. Yeah. And it's not just 20 years younger, but actually like a shade scarier. And yeah, 20 years younger. So Judge Ho is 51, I think. So he is on the older end, I think, of the kind of short list. I mean, I presume they want real young.

00:27:31 Speaker_02
And so I don't know. It's possible that he could be edged out by his fifth circuit colleague, Andy Oldham, who was also on the panel of judges that put restrictions on Mephistopheles Stone, although I think he did not write the Sparks Joy concurrence.

00:27:44 Speaker_02
So I suppose these are the small mercies we should note.

00:27:46 Speaker_03
Right. Like he said they had standing.

00:27:48 Speaker_02
And he's 45. Yeah.

00:27:50 Speaker_03
He's also the guy who wrote a separate opinion suggesting maybe the entire administrative state is unconstitutional because progressives, including Woodrow Wilson, were racist. Another name I wanted to throw out is Judge Thapar on the Sixth Circuit.

00:28:03 Speaker_03
So he was one of Donald Trump's first court of appeals nominees, reportedly close to Senator Mitch McConnell. I think now that McConnell isn't the majority leader, maybe he doesn't have as

00:28:14 Speaker_03
front-standing, but I do think, right, like, he has something going for them. You know, before the election, he called on donors to, like, stop supporting law schools that weren't supporting or teaching originalism.

00:28:27 Speaker_03
So, you know, this idea of, like, threatening critics and whatnot, you know, is maybe potentially appealing. I do think he is running behind the other two on crazy, so he's gonna need to write some quickies that, I don't know, say,

00:28:40 Speaker_03
your body my choice or like something in there.

00:28:43 Speaker_02
Well the same way that Kavanaugh raised his hand with the Hargan versus Garza undocumented pregnant teenager case after he was not on the first set of Trump lists.

00:28:53 Speaker_02
I do wonder if he will do lists again so people can audition to make their way onto them. You know who is, I think, not gonna have to audition to make their way onto the list?

00:29:00 Speaker_02
I don't know if these people would ultimately actually be seriously considered, but we have to mention Eileen Cannon and Matthew Kaczmarek.

00:29:06 Speaker_03
Oh, they're going to the Court of Appeals within the next two years.

00:29:10 Speaker_02
Yeah, but do they have to go to the Court of Appeals? What if they go right to SCOTUS?

00:29:12 Speaker_03
Yes.

00:29:13 Speaker_02
That's also something to look forward to. At least they'll be on panel. To be honest, if they're on the Court of Appeals, I think there's, in some ways, that's actually an advantage in that they're not these real lone ranger district court judges.

00:29:24 Speaker_03
Here's the thing, Kate, you are assuming the Court of Appeals as currently constituted. Imagine them on panels with additional second-term Donald Trump Court of Appeals nominees, right?

00:29:37 Speaker_03
Then you are going to have Court of Appeals precedent that is a la Eileen Cannon Specials and Matthew Kaczmarek, whatever he's doing.

00:29:46 Speaker_02
Okay, fine, you're right, it's worse. Sorry. It's probably worse. Sorry, sorry. Okay.

00:29:50 Speaker_03
I have some concerns about what this is going to do to public debates about the Supreme Court and perceptions of the Supreme Court's role, how the court will be depicted.

00:30:02 Speaker_03
Will it be depicted as more moderate or an institutional check if or when it occasionally stands up to Donald Trump? Will that minimize the radicalism of all of the other things the court has done and will continue to do?

00:30:15 Speaker_02
To be clear, I hope that the court does stand up to Trump if it has the possibility of lessening the suffering that some of his policies might create, but I completely share that concern.

00:30:24 Speaker_02
And I do think that part of the response to that is continually reminding people that this is the court that ignored Section 3 of the 14th Amendment and let Trump run for office again at all.

00:30:35 Speaker_02
that ensured that he would never face a federal trial, that handed him these enormous new powers and insulation from accountability as he's walking back into office on a platform of avowed weaponization of government against critics.

00:30:46 Speaker_02
So any praise of any limiting decisions that this court issues, and again, I very much hope there will be some, has to be paired with those reminders.

00:30:54 Speaker_02
And also just on kind of the lower court point, which you were just talking about, Leah, I did want to flag something important. So right now there are 27 judicial nominees pending in the Senate. 17 are on the Senate floor for circuit, 13 district.

00:31:09 Speaker_02
And then there are 10 more in committee who will be out of committee on the floor, I think by Thanksgiving.

00:31:14 Speaker_02
And it is enormously important that the Senate confirm each and every one of these nominees and not hand over a single existing vacancy to Donald Trump. Right.

00:31:24 Speaker_02
Separate and apart from what the Supreme Court does or doesn't do to check Trump, the lower courts actually will be important testing grounds for some of these Trump administration initiatives.

00:31:31 Speaker_02
As we saw in the first Trump administration, the travel ban was invalidated numerous times by lower courts before it was ultimately upheld in different form by the Supreme Court. That was critically important.

00:31:40 Speaker_02
So the lower courts will be enormous and it would just be unimaginably disastrous for the Senate to hand any of these vacancies over to an incoming Trump administration. And in the Senate, there's all these questions about floor time.

00:31:52 Speaker_02
It takes time to confirm judges. Some of them are going to want to, like, get out of town. Like, they have to stay in town. They have to confirm all the judges. Full stop.

00:31:59 Speaker_03
Yeah. I mean, you know who was confirmed in the lame duck session during the first Trump administration? Eileen Cannon.

00:32:05 Speaker_02
Yep.

00:32:05 Speaker_03
Right. Like, just just do it, people.

00:32:08 Speaker_02
Yeah. Got to get it done.

00:32:17 Speaker_03
OK, now on to what the court has been up to while everything else has been happening. We're going to start with a case the court added to its docket before we recap the arguments that the court heard.

00:32:28 Speaker_02
And it's a big one. So the court agreed to hear yet another case about the future of the Voting Rights Act, which is obviously always an ominous note on which to begin any discussion. But here are the details.

00:32:37 Speaker_02
The procedural history is pretty complicated, but it actually is necessary, I think, to understand what's going on in the case.

00:32:43 Speaker_02
So in brief, the court is going to be deciding a pair of cases about whether or when it is unconstitutional for a state legislature to try to remedy a Voting Rights Act violation.

00:32:53 Speaker_02
That is, in this case, after a court had concluded that a state violated the Voting Rights Act, the VRA, by diluting the voting power of racial minorities, is it then unconstitutional for a state legislature to try to fix that violation by drawing additional opportunity districts for minority voters?

00:33:10 Speaker_02
And if you were thinking, wait, I thought the Supreme Court did, like, actually this one okay thing, which is uphold the VRA as a race-conscious law, said that the law did prevent states from depressing minorities' voting power, you would be right.

00:33:22 Speaker_02
So that was the 2023 decision in Allen v. Milligan, where the court agreed that Alabama had violated the VRA by refusing to draw a second district where minority voters had the opportunity to elect candidates of their choice.

00:33:33 Speaker_03
And you may also remember that at the time we said, do not think this fight is over, or Allen has definitively resolved, right, the future of the Voting Rights Act before this court, because the justices upheld the VRA's ability to protect racial minorities' voting power the year after they had overruled Roe and their public approval plummeted, and they were at the time unsure about whether there was going to be sufficient

00:34:00 Speaker_03
Political reaction that would result in actual constraints on their power and actual pushback, you know And recall that brett kavanaugh provided the fifth vote for that result but didn't join all parts of the chief justice's opinion specifically the parts that had explained some of why the voting rights act was Constitutional and it was okay to take race into account when considering whether states had diluted racial minorities voting power and he wrote separately to say there were some constitutional challenges that alabama hadn't raised but that might still be successful and

00:34:28 Speaker_03
You know what chickens they came home to roost right because now that the court looks at what has happened and says Well, we got away with dobs, right like we got away with everything Why not now and so the newest voting rights act case arises out of louisiana Which like alabama was found to have violated the voting rights act

00:34:46 Speaker_03
When Louisiana refused to draw a second minority opportunity district, that case was like the lower court opinion in Allen v. Milligan, stayed during the 2022 midterm such that Louisiana was allowed to use its unlawful map.

00:35:00 Speaker_03
But after the Supreme Court reaffirmed that the Voting Rights Act is indeed a thing, at least for now in Allen v. Milligan, the lower court, which had found Louisiana had violated the Voting Rights Act, proceeded to the question of remedy.

00:35:11 Speaker_03
That is, once there is a Voting Rights Act violation, what is the solution? Like, what is to be done about it?

00:35:17 Speaker_02
So in terms of what does get done, sometimes courts draw the new maps. But here, the Louisiana legislature asked the court to give it the opportunity to draw a map that would remedy the VRA violation.

00:35:27 Speaker_02
So the legislature considered a bunch of different redistricting maps and ultimately selected one that balanced a variety of different considerations, including protecting incumbents and also complying with the Voting Rights Act.

00:35:38 Speaker_02
So they selected a map that protected the Speaker of the House, Mike Johnson, and stuck it to a more moderate member of the Republican caucus.

00:35:45 Speaker_02
And the map, in addition to doing those political things, also created a second Minority Opportunity District.

00:35:51 Speaker_03
At that point, some white voters challenged the map on the ground that it was unconstitutional racial gerrymander because they maintained by attempting to remedy the Voting Rights Act violation and ensure that black voters had political opportunities, the map unconstitutionally discriminated on the basis of race.

00:36:08 Speaker_03
Again, to be clear, here the argument is compliance with the race conscious Voting Rights Act, which prohibits diluting the voting power of racial minorities. That is the real race discrimination.

00:36:20 Speaker_02
So a lower court agreed with that claim in validating the map. Now, the Supreme Court paused that ruling invoking the Purcell principle because it was too close to the election.

00:36:28 Speaker_02
And now the court is taking up on the merits the question of whether and when compliance with the VRA is unconstitutional.

00:36:35 Speaker_03
Fellas, is the rest of the Voting Rights Act unconstitutional? Oh, gosh.

00:36:39 Speaker_03
This case has makings of some real asymmetry with the court's earlier decision in the South Carolina case, Alexander, where the court, per Justice Alito, said Republicans were so entitled to engage in partisan gerrymandering, courts should look askance at racial

00:36:54 Speaker_03
gerrymandering claims brought by black voters when there is racial polarization in voting.

00:36:59 Speaker_03
Here, by contrast, the court might say even where Republicans are working out partisan infighting, punishing Republicans who are insufficiently supportive of the party's direction, that that doesn't allow Republicans to try and remedy racial discrimination, right?

00:37:14 Speaker_03
You only get to consider partisan reasons when you are engaging in racial discrimination, right? Logic. What do you call it?

00:37:24 Speaker_02
What do you often say, Leah, the majesty of the law?

00:37:26 Speaker_03
Yes, majesty of the law. There it is. Majestic neutrality of the rule of law.

00:37:31 Speaker_02
Right there. So that's this case the court will now hear. One thing I actually just wanted to ask if Trump won the election, that was likely to result in changed positions in some cases.

00:37:42 Speaker_02
Scrimetti, the Tennessee case about the state law that prohibits gender affirming care for kids, and it's being argued in December, right? So it shouldn't, that argument should go forward. There shouldn't be any change in the immediate.

00:37:54 Speaker_02
The Trump campaign slash transition doesn't have standing to ask the court to do anything, but could Tennessee ask the court to sort of put it off until later? It's an ominous idea to even put out into the universe.

00:38:03 Speaker_03
I mean, it's possible, right, you will get a request to delay the case.

00:38:10 Speaker_03
I don't know that that will actually happen since it's going to be argued before a change in administration, so I don't know if they would want to do like re-argument or schedule an additional round of briefing.

00:38:20 Speaker_03
I mean, recall in Brnovich versus DNC, you know, that case was argued basically immediately after

00:38:28 Speaker_03
Biden administration took office and they indicated basically just in like a short note without fully explaining their position that they didn't agree with the position of the Trump administration as far as the legal theory, although maybe did with respect to the outcome, and still the court proceeded to decide the case.

00:38:43 Speaker_02
Decide the case, yeah. So they can file something in January if they want to, yeah. So, on to the argument recaps. It's just kind of wild that so much business as usual just marches on while all of this is happening, but it did.

00:38:55 Speaker_02
The court heard oral arguments in some cases last week. We will just relatively briefly walk through for you. First of them, Wisconsin Bell versus United States. XREL Todd Heath was a case that we briefly flagged last week.

00:39:08 Speaker_02
This is about whether the False Claims Act applies to the Federal Communications Commission's E-rate program. This program is currently subject actually to a different non-delegation doctrine challenge.

00:39:18 Speaker_02
The Fifth Circuit actually invalidated it on the basis of the non-delegation doctrine and the SG has asked the court to review that case.

00:39:24 Speaker_02
But this case is about whether the program is amenable to suits under the False Claims Act, which is a statute which allows private parties to sue and to get potentially really large amounts of money

00:39:35 Speaker_02
entities that defraud the federal government of money.

00:39:38 Speaker_03
Yes.

00:39:38 Speaker_03
And so the challengers say that the FCC's E-rate program works differently than most government programs because here the government is ordering private companies, private parties to pay into a fund that's also managed and distributed to other private companies, albeit subject to federal review.

00:39:53 Speaker_03
You know, telecom providers pay into a fund, rates that are initially set by a group of private entities and then distributed to support access to broadband. And the issue comes down to what the word provides means in the False Claims Act.

00:40:05 Speaker_03
You know, that law allows parties to sue over programs where the government provides the money and that program has been allegedly defrauded.

00:40:14 Speaker_03
And the challengers say the government didn't provide the money because it comes in from private parties and then it's distributed by a non-governmental entity.

00:40:22 Speaker_02
So during the argument, some justices, and in particular Justice Kagan and Justice Barrett, intimated that it's wrong to think that only one entity provides the money, and they gave a bunch of examples of that.

00:40:32 Speaker_02
They were just like, there might be multiple providers. And they suggested the provider might be the principal that tells an agent to collect money and distribute it. This is a theory that got some pushback from some Republican justices.

00:40:42 Speaker_02
who might have been thinking about the non-delegation challenge of the program, right, that is ongoing in a separate case, since they might not want to say the telecom providers and private entity are agents of the government subject to meaningful oversight.

00:40:53 Speaker_03
Yeah, it was interesting. There were a few allusions to that non-delegation challenge in this case, even though it's obviously not formally presented.

00:41:01 Speaker_03
But it turns out one wrinkle in the case is that setting aside the issue of whether the government provides money where it directs private organizations to provide money, it seems that the government itself has given money into the Universal Service Fund, something that the parties and the justices say the court below might not have known about.

00:41:17 Speaker_03
But the government's brief noted that during the years relevant to the case, the U.S. Treasury deposited more than $100 million into the Universal Service Fund. Oops. Whoopsie. My bad.

00:41:30 Speaker_02
So yes, maybe they overlooked this. I'm not sure. It's not like they're so busy with all the other cases they have going on that they didn't really have time to focus on whether the case actually presented the question that they wanted to answer.

00:41:42 Speaker_02
I don't really know what the explanation is. some of them just maybe too busy with their extracurriculars. But in any event, so there were lots of questions to the challengers along the lines of, okay, so assume you lose on the $100 million question.

00:41:52 Speaker_02
And I think that suggests that at a minimum, the court might send the case back down on a theory that at least those $100 million can anchor an FCA claim and maybe claims about just the money in that fund or claims that are somehow capped at the $100 million that the government provided.

00:42:06 Speaker_02
But in any event, that would essentially be an off-ramp in this case.

00:42:09 Speaker_03
Yeah, there was one moment we wanted to highlight from the argument in an exchange between the Chief Justice and the lawyer for the federal government arguing in the case in which the lawyer for the federal government pledged or at least cosplayed pledging fealty to the Supreme Court as the highest and best source of legal authority.

00:42:27 Speaker_03
So we'll play that clip here.

00:42:29 Speaker_00
Here we have a statute that in 2008 appropriated money out of the Universal Service Fund. proves dispositively that Congress regards this as the government's money.

00:42:40 Speaker_00
But even if you think that what Congress has said isn't good enough, I'll turn to an even higher authority, this court's precedents. This court. How I understand what you're saying.

00:42:54 Speaker_02
Hardy har har, just love it.

00:42:56 Speaker_03
Hardy har har har, right. Love the idea, right, that the price of an argument is to bend the knee to the Supreme Court. The judicial kings and queens need to have their authority recognized.

00:43:08 Speaker_02
And they just love it. People will do it. All right, onward. The court also heard oral argument in Advocate Christ Medical v. Becerra.

00:43:15 Speaker_02
This is the case about compensation for hospitals that treat low-income individuals, and specifically individuals who are part of the Social Security program.

00:43:22 Speaker_03
The case is a follow-on to the Supreme Court's prior decision in Empire Health v. Becerra, and the gist of the cases is this.

00:43:29 Speaker_03
So federal law authorizes reimbursements for hospitals, and the amount of those reimbursements depends on whether the hospital provides services to people who are entitled to benefits under the Medicare program and the Social Security program.

00:43:43 Speaker_03
In Empire Health, the court said that the formula authorizes reimbursements based on whether the hospital treats individuals who are eligible for Medicare benefits, even though they might not be receiving Medicare benefits at the time of their hospitalization.

00:43:55 Speaker_03
And the question in this case is, whether the same rule applies for reimbursement rates that turn on whether the hospital provides services to people who are entitled to benefits under the social security program.

00:44:05 Speaker_03
That is whether that's tied to people who are eligible for SSI benefits or are receiving SSI benefits at the time of their hospitalization.

00:44:14 Speaker_02
On the one hand, you might say or think, well, the textualist would say entitled to benefits means the same thing for SSI as it does to Medicare.

00:44:21 Speaker_02
But that argument seemed to bump up against resistance from some of the more textualist justices, including Justice Kagan. So she and other justices reframe the question or issue in the case as, what does, quote, the entitlement mean?

00:44:33 Speaker_02
That is, what does the program entitle you to? Is the entitlement the receipt of benefits, whether that's cash or health insurance? Or is the entitlement, the eligibility to receive those benefits over a period without having to reapply for them?

00:44:46 Speaker_03
Yeah. So during the argument, they were noting that in the context of Social Security, if there are some months where an individual's income exceeds eligibility for Social Security, they aren't going to receive payments.

00:44:56 Speaker_03
But they might receive payments the following month without reapplying in a more fulsome sense. Similarly, in Medicare, you're still in the Medicare program, even though you might also have private insurance that's paying for

00:45:09 Speaker_03
that particular hospitalization or particular aspects of the treatment. So it was a bit hard to read where the justices were on this case, at least to me.

00:45:17 Speaker_02
There was also the argument in EMD sales versus Carrera.

00:45:20 Speaker_02
This is the case about how courts determine whether an employer is subject to some of the requirements of the Fair Labor Standards Act, which imposes maximum hour, minimum wage, overtime, and other requirements on employers.

00:45:32 Speaker_02
And the FLSA has certain exceptions, doesn't apply to all employers or all employees. If one of those exceptions applies, employers are not subject to these guarantees.

00:45:41 Speaker_02
And the question here is, what is the burden of proof to establish an exception to the FLSA? That is, to establish that an employer isn't bound by or required to comply with the requirements of the FLSA.

00:45:52 Speaker_03
that the employer, which is supported by the federal government, is going to prevail on their argument that the burden of proof is preponderance of evidence rather than clear and convincing evidence, as the employees argue.

00:46:02 Speaker_03
The courts seem to be really focused on the appropriate remedy, that is, if they say, or really when they say, the burden of proof is preponderance, whether there should be a reversal or vacatur.

00:46:12 Speaker_03
The United States has suggested reversal, employer vacatur. One thing that was interesting to me is that part of the disagreement between the parties seemed to turn on how they thought or who they thought should determine the burden of proof.

00:46:23 Speaker_03
So the employers in the United States said the task here is just statutory interpretation and the sense of discerning what Congress

00:46:31 Speaker_03
said, even though it didn't say anything explicitly about the burden of proof, whereas the employees read the court's previous cases to say that's actually something for courts to decide based on, like, a judicial assessment of the importance of the underlying right.

00:46:43 Speaker_03
The justices seem pretty skeptical or hostile to that prospect.

00:46:47 Speaker_03
Some additional evidence that the case is going the way of the employer slash United States was that the justices didn't have any follow-up questions during the possible seriatim period for the employer, which you can hear here. I'll go to.

00:47:01 Speaker_04
Thank you, counsel. Nobody. I don't think so.

00:47:09 Speaker_03
Finally, wanted to play this clip, which reflects a different understanding of the Clean Water Act than we heard articulated in October. So just play that here.

00:47:17 Speaker_04
Well, but I mean, I think it's the same point Justice Alito was making, but the Clean Water Act, right? There's a big statement of purposes there. It's necessary to preserve life and everything else.

00:47:28 Speaker_04
And so if you want, if you're suing somebody under that, why aren't they put to, they the polluter, a higher standard of proof to prove that they're not doing, they're not polluting the environment.

00:47:39 Speaker_04
They're not endangering people's lives and through their emissions.

00:47:45 Speaker_03
literally stares in city and county of San Francisco, where it seemed like some of the chiefs Republican colleagues thought the true purpose of the Clean Water Act was to protect polluters.

00:47:54 Speaker_03
No, it was a different it was a that was a different Clean Water Act, though. Right. Exactly. Yeah. No, they're going to work it out on the remix. But what is going on here?

00:48:04 Speaker_02
I know. I know. All right, finally, they heard arguments in Facebook versus Amalgamated Bank, a case about the required pleadings in securities law cases.

00:48:15 Speaker_02
That is what plaintiffs have to say in their complaint to make out a violation of federal securities laws.

00:48:20 Speaker_02
The formal question presented in the case is about whether the failure to disclose a past event gives rise to liability in a statement about the risk of future events.

00:48:28 Speaker_02
But it became clear the justices were uncertain about how the question in the case had been framed.

00:48:33 Speaker_02
And maybe they were unsatisfied with it because the respondent slash plaintiff's lawyer and the federal government who was supporting the plaintiff conceded that they aren't arguing and the court below hadn't held that the failure to disclose a past event that materialized necessarily gave rise to liability.

00:48:47 Speaker_02
Instead, they contended it depended on the extent to which a statement about future risk implied that a past event hadn't taken place.

00:48:53 Speaker_02
the extent to which that past event might be material either to thinking about the future risk or material in its own right. So it's just not that clear how the court is going to respond to that, i.e.

00:49:02 Speaker_02
that the question presented might not completely capture the disagreement between the parties and the precise legal issue in the case. I just get it together when you're taking cases and framing questions, like just don't take the cases.

00:49:13 Speaker_02
I mean you're not taking that many of them. No.

00:49:15 Speaker_03
Can't you review them?

00:49:17 Speaker_02
Lock in as My 12-year-old says all the time, lock in.

00:49:22 Speaker_03
Lock in. Okay, great.

00:49:23 Speaker_02
I think that's actually probably a good going forward mantra for all of us.

00:49:26 Speaker_03
Yes, for sure.

00:49:28 Speaker_02
Lock the F in. All right, friends, I wish Melissa was here. I mean, not that I'm unhappy to be doing this with you. I'm obviously happy to be doing it, but I do miss her presence.

00:49:37 Speaker_02
And I do feel fortunate to get to process this, at least with you and with her when she comes back. I do think you kind of referenced the tendency to want to withdraw.

00:49:46 Speaker_02
And I have to say the moments and the spaces I have felt the best since early Wednesday have been with

00:49:51 Speaker_02
people with my people, like with my students on Wednesday, with you, with friends I've been on the phone with, and I'm going to see my family in Chicago for my niece's bat mitzvah tomorrow.

00:49:59 Speaker_02
I'm actually really, really excited to get to like hug my sisters and my parents and my nieces and nephews. And anyway, I think that's a lesson that is broadly true. And so we are going to keep doing that.

00:50:09 Speaker_03
And to be here like for one another, like we are going to stay here with each other and with you for as long as that remains possible slash legal.

00:50:19 Speaker_02
But And when we're ready, to quote my daughter Ryan again, we will figure out exactly how to direct our energies and we will lock in.

00:50:27 Speaker_03
The anger will come back, right? It's boiling inside of me. Part of the Throne of Glass is if you don't use your magic, it comes back really big. So you're burrowing into your power and then you can unleash the hugest of flames.

00:50:40 Speaker_03
that might be on the horizon. I am an introvert, and I did feel good cuddling my dog, watching the sunrise. Like, that helped.

00:50:47 Speaker_03
But as I mentioned, like, my partner was out of town, and so that night, our favorite local restaurant did a pop-up, like, mac and cheese and wine thing.

00:50:54 Speaker_03
And so I went with some friends and, like, just hugged and ate mac and cheese, drank wine, and then ate ice cream. And, yeah, like, being with people, hugging, like, reiterating that we, like, all care about each other is... important and helps.

00:51:10 Speaker_03
It really is.

00:51:12 Speaker_02
Alright, on that note, we will see you all next week.

00:51:18 Speaker_03
Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leo Lippman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell.

00:51:27 Speaker_03
Michael Goldsmith is our associate producer, 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.

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And thanks to our digital team, Phoebe Bradford and Joe Motosky. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com forward slash at strict scrutiny podcast.

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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.

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If you nerd out about all things science, I'm excited to tell you about Radiolab, a podcast from WNYC, hosted by Lulu Miller and Latif Nasser. Radiolab's goal with each episode is to make you think, how did I live this long and not know that?

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Whether it's chemistry, laws, new technologies, ancient beliefs, even sex, or bugs, Radiolab's rigorous curiosity gets you the answers so you can see the world anew. Radiolab, adventures on the edge of what you think you know.

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Listen wherever you get your podcasts.