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Episode: SCOTUS’s Endless Beef with the EPA

Author: Crooked Media
Duration: 01:04:14

Episode Shownotes

Melissa, Kate, and Leah recap October at the Supreme Court, diving into the sewage-infested waters of City and County of San Francisco v. Environmental Protection Agency. What did clean water ever do to Brett Kavanaugh? Also recapped: cases about the judicial review of immigration visas and veterans benefits. Finally, the

hosts finish off with a peek at what’s going on in state courts around the country. Follow us on Instagram, Twitter, Threads, and Bluesky

Summary

In this episode of Strict Scrutiny, the hosts analyze significant developments from the Supreme Court's October session, particularly focusing on the challenge to the EPA by San Francisco regarding Clean Water Act permits. The discussion includes the Court's ideological tensions over environmental regulations, immigration visa revocation judicial review, and recent state court decisions affecting voting rights. Insights into the implications of judicial decisions on electoral integrity and ongoing debates around the EPA's regulatory authority are also examined.

Go to PodExtra AI's episode page (SCOTUS’s Endless Beef with the EPA) to play and view complete AI-processed content: summary, mindmap, topics, takeaways, transcript, keywords and highlights.

Full Transcript

00:00:02 Speaker_09
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_00
She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex.

00:00:44 Speaker_06
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 Melissa Murray.

00:00:53 Speaker_04
I'm Kate Shaw.

00:00:54 Speaker_03
And I'm Leah Littman. And last week, the Supreme Court wrapped up its October session, the first session of the new term. And Mother Earth, you're already in danger, girl.

00:01:04 Speaker_03
So to explain how, we're going to spend a good portion of this episode breaking down the big environmental case the court heard last week before briefly touching on the other cases that were also argued.

00:01:14 Speaker_04
Then for our court culture segment, we'll discuss some cases in other courts, one appellate case decided by the Sixth Circuit, a district court decision on political speech out of Florida, and then also some state court developments, one on voting rights from Nebraska, another on reproductive justice out of Tennessee, and some recent voting developments out of Georgia.

00:01:30 Speaker_04
And we will finish up by discussing the passing of a major figure at SCOTUS.

00:01:34 Speaker_04
So for listeners who are following this issue, we do know that the Fifth Circuit heard oral arguments in a challenge to the DACA, that's Deferred Action for Childhood Arrivals program, about a week and a half ago.

00:01:44 Speaker_04
We do plan to cover that argument in our November preview, so two episodes from now, when we talk about pending cases that could be affected by the election. So stay tuned for that conversation.

00:01:53 Speaker_06
But on this episode, first, some breaking news.

00:01:56 Speaker_06
The first thing we want to highlight is an order from Judge Tanya Chetkin, who's, of course, the DC District Court judge who is presiding over the federal election interference case against the former guy, Donald Trump.

00:02:09 Speaker_06
In that order, Judge Chutkan rejected Trump's efforts to block public disclosure of the appendix to Jack Smith's bombshell 165-page immunity brief, which we discussed two weeks ago. The brief is already public, and as we've said, it's quite a read.

00:02:26 Speaker_06
and read in the drag queen sense, like the library is open and Donald Trump kind of got read.

00:02:32 Speaker_06
But Trump's team, not surprisingly, argued that because of the upcoming election, Judge Chetkin should deviate from the ordinary presumption of public access to information in criminal proceedings and keep the entire appendix sealed until November 14th.

00:02:46 Speaker_06
Trump's team argued that the unsealing of the appendix would poison the jury pool and that it wasn't fair for the public to see Smith's evidence but not Trump's and that this quote-unquote asymmetric release of charged allegations and related documents during early voting creates a concerning appearance of election interference end quote.

00:03:06 Speaker_03
The irony. Well, Judge Chuckin seemed to appreciate that irony because she was, to put it mildly, not impressed by these arguments.

00:03:15 Speaker_03
She wrote that, quote, there is undoubtedly a public interest in courts not inserting themselves into elections or appearing to do so. But litigation's incidental effects on politics are not the same as a court's intentional interference with them.

00:03:28 Speaker_03
It is in fact defendants requested relief that risks undermining that public interest.

00:03:33 Speaker_03
If the court withheld information that the public otherwise had a right to access solely because of the potential political consequences of releasing it, that withholding could itself constitute or appear to be election interference." End quote.

00:03:47 Speaker_04
I love how she's like, so close, but exactly 180 degrees wrong are your arguments. And so, no. So Trump's request gets denied. The appendices were unsealed on Friday.

00:03:57 Speaker_04
And to the kind of asymmetry point that Trump's lawyers were making, Chuck had made clear that he could accelerate his own timetable, right? His next round of briefs are due on November 7th.

00:04:06 Speaker_04
But if he's concerned about asymmetric information being on public display, he can file his arguments and present his facts earlier than that if he wants the public to see them.

00:04:16 Speaker_03
Like, let's see that great evidence, Donald. Let's see it.

00:04:19 Speaker_04
Totally. And I have a hunch we're not going to. So at the time of our recording, only one of the appendices was actually accessible, and it was heavily redacted. So we actually don't really know any more than we knew from the brief itself.

00:04:31 Speaker_04
But we will update you if and when we learn more about the contents of these appendices.

00:04:36 Speaker_06
Most of the pages just say sealed. And the ones that were not sealed were primarily public information that was already available, such as speeches and press releases.

00:04:45 Speaker_06
There were a few different versions of a memo that had described the Electoral Count Act as quote-unquote likely unconstitutional, end quote. Not a lot of theory behind that, not a lot of evidence, but you know a lot of vibes so I guess that's fine.

00:05:00 Speaker_06
There was also some memos that mocked how there could be quote howls of course from the Democrats end quote, in the event that Mike Pence refused to certify the votes.

00:05:11 Speaker_06
It also proposed having someone, including perhaps our favorite, the gentleman from Cancun, Ted Cruz, play a role in stymieing the efforts to certify the votes, which is actually really interesting because Colin Allred, at a recent debate with the gentleman from Cancun, mentioned that the gentleman seemed to be really interested in stymieing the counting of the votes and also hiding in supply closets.

00:05:34 Speaker_06
Exactly.

00:05:36 Speaker_04
Can we just pause and say Allred was so good in that debate. Oh my gosh. He really crushed it.

00:05:41 Speaker_03
He's my student. My student. Colin Allred, Berkeley Law grad. So good. He was prepped and ready, and the moments on election interference, abortion, he was ready and could communicate to the message. Cruz, slightly less so on all of those scores.

00:06:03 Speaker_06
Again, I'm just like if you're listening Allred team, you are missing an opportunity by not referring to Ted Cruz as the gentleman from Cancun and also invoking justice for snowflake.

00:06:14 Speaker_04
Yes, that's true. That's that's one critique. There's there's I don't think any invocations during that missed opportunity.

00:06:20 Speaker_06
No real notes. Yes. But back to the brief. Sorry, that was a Colin Allred appreciation interlude. Sorry. Back to the redacted appendices.

00:06:29 Speaker_06
In one rare moment of self-awareness there is a writing that is disclosed that described the plan to interfere with the counting of the votes as admittedly quote-unquote BOLD in all caps. Yes fellas that's that's what we call

00:06:47 Speaker_06
a coup bold is like when you're when you're killing it's definitely bold. There was also a redacted text exchange about getting documents on the congressional floor. And I don't know, I'm a little curious to see more in that vein going forward.

00:07:02 Speaker_06
So unseal everything personally, indeed.

00:07:05 Speaker_03
So we also wanted to talk through some developments out of Texas. A Supreme Court issued a stay of execution. But no, it wasn't the United States Supreme Court.

00:07:15 Speaker_03
So late Thursday night, the Texas Supreme Court issued a stay in the case of Robert Roberson, who was convicted and sentenced to death for the killing of his two-year-old daughter on the basis of since discredited shaken baby syndrome evidence and theories.

00:07:29 Speaker_03
The lead detective on Roberson's case now says Roberson is innocent, and a bipartisan group of Texas legislators had looked into the case and expressed doubt about the conviction and sentence.

00:07:40 Speaker_06
Yet, despite those important developments, SCOTUS refused to issue a stay of execution on Thursday, and Justice Sotomayor wrote separately to urge the Texas government to grant a reprieve, saying Roberson didn't have a federal claim, but that Texas itself could stop the execution.

00:07:59 Speaker_04
And a bipartisan group of Texas legislators, this is a very unusual move, took this unprecedented step of issuing a subpoena or maybe a summons for Roberson's testimony.

00:08:09 Speaker_04
And after the Texas Court of Criminal Appeals initially declined to intervene, late on Thursday, the Texas Supreme Court issued an order preventing Texas officials from preventing Roberson from complying with the subpoena, presumably including by going forward with this execution date.

00:08:24 Speaker_04
So this means in the short term that the case goes back to the lower court for consideration of the legislative subpoena. The execution, of course, does not go forward in the immediate.

00:08:32 Speaker_06
All of this implicates questions of state separation of powers, which means that now the United States Supreme Court is actually to the right and maybe decidedly so to the right of the all Republican Texas Supreme Court on this question of the death penalty.

00:08:46 Speaker_06
So Wow, that is something. Chris Geidner's Law Dork newsletter did some great reporting on this case. So if you want to learn more about Robert Roberson and this case, be sure to check out Chris's sub stack.

00:09:12 Speaker_03
And now on to the recaps. First up, the Supreme Court's conservative supermajority tries to figure out which it hates more, the EPA or liberal bastion San Francisco? It's a toss-up. Right.

00:09:25 Speaker_03
Well, it's not so clear it's going to be a toss-up, unfortunately. So the Supreme Court heard the big Clean Water Act case, city and county of San Francisco versus EPA.

00:09:34 Speaker_03
The question in the case, as we said in our last episode, is how exactly did the EPA violate the law this time?

00:09:40 Speaker_03
The relevant statute is the Clean Water Act, which requires entities that discharge pollutants into United States waters to obtain permits.

00:09:48 Speaker_03
And the law authorizes the EPA to impose conditions on those permits that include, quote, effluent limitations for point sources, end quote, but also, and this will be important, quote, any more stringent limitation, including those necessary to meet water quality standards, end quote.

00:10:05 Speaker_04
So the city of San Francisco operates a combined overflow system that emits pollutants into the Pacific Ocean, which is among the navigable waters of the United States for purposes of the Clean Water Act, at least until someone finds a theory that excludes the, you know, shoreline of the Pacific.

00:10:19 Speaker_05
The Pacific Ocean is unconstitutional!

00:10:24 Speaker_04
at least not subject to the protections of the Clean Water Act.

00:10:26 Speaker_04
So the EPA issued a permit to San Francisco for their discharge and the permit conditions prohibited discharges that, quote, cause or contribute to a violation of any applicable water quality standard and the permit also barred the creation of, quote, pollution, contamination or nuisance as defined by a provision of California state law.

00:10:44 Speaker_04
As the lawyer representing the EPA noted at the argument, the permit conditions were imposed because San Francisco's system, quote, is resulting in gallons of sewage being poured into San Francisco's beaches, resulting in sewer backup in homes and businesses.

00:10:57 Speaker_06
But honestly, what's a little raw sewage between friends? When we say the Supreme Court has gone to shit, we're referring to this case.

00:11:05 Speaker_06
Anyway, San Francisco argues that these permit conditions violate the Clean Water Act because they impose narrative limitations that are too vague and don't impose specific limits on pollutants or provide for specific procedures for improvements, as the law, they say, requires.

00:11:23 Speaker_06
The issue here is how specific does the EPA have to be when it is issuing permit conditions under the Clean Water Act? Can it impose prohibitions that make permit holders liable when they cause water quality standards to go below a certain level?

00:11:36 Speaker_06
Or does it have to identify the specific amounts of permissible or impermissible discharges?

00:11:41 Speaker_06
To put it in plain language, in imposing the permit conditions, is it okay for the EPA just to say, hey, don't kill the species of fish with your discharges, or hey, don't allow the water quality levels to dip below X amount?

00:11:54 Speaker_06
Or does the EPA have to be more specific than that and tell the polluter, hey, it's okay to discharge one gallon of poop, but no more than that one gallon of poop.

00:12:05 Speaker_03
Do you hear me? Before we discuss the tenor of the oral argument, we should elaborate a little on the city's legal argument, because the oral argument was a few fries short of an extra value meal.

00:12:17 Speaker_03
It is difficult to overstate the extent to which the Republican justices truly think that Congress passed the Clean Water Act to protect polluters.

00:12:26 Speaker_03
Also difficult to overstate the extent to which the Republican justices think the real victim in the current situation that involves gallons of raw sewage being dumped into the ocean is that the people dumping said gallons of raw sewage into the ocean are the victims, or at least the people that could prevent said dumping, they are the victims.

00:12:43 Speaker_03
Not planet Earth, not the people who have to live with said sewage, but the entities allowing the sewage dumping. And the Republican appointees hate the EPA so much

00:12:52 Speaker_03
They're convinced the real victim here is San Francisco, which is dumping sewage into the Pacific Ocean.

00:12:58 Speaker_06
San Francisco's argument is basically that Congress created and amended the Clean Water Act in part because in a world without specific regulations, it's really difficult to impose liability on polluters, which is to say

00:13:11 Speaker_06
that Congress, when it enacted the Clean Water Act, was responding to concerns about a regime where there weren't precise and specific rules about exactly how much and what kind of pollution could give rise to liability under the Act.

00:13:23 Speaker_06
And the city argues that Congress created the permit system that instructs the EPA to tell polluters exactly what they have to do to avoid liability under the Act to respond to those concerns.

00:13:35 Speaker_06
And according to the city, when the Clean Water Act mentions effluent limitations, that's Congress directing the EPA to tell polluters exactly what they can discharge or exactly how they have to structure their discharge systems.

00:13:48 Speaker_04
But the problem with the city's argument, as Justice Kagan tried repeatedly to explain to her junior varsity colleagues, her head was literally exploding.

00:13:55 Speaker_04
I think we said last week or the week before that we were worried she seemed a little deflated or tired. I didn't get that at all in this argument. Like she had real mother of dragons energy throughout.

00:14:05 Speaker_04
But anyway, her point is that you cannot read the legislative history of a statute that broadly to say the Clean Water Act's purpose was to impose more specificity and then infer that the agency is prohibited from promulgating general standards for water quality.

00:14:17 Speaker_04
That's just not how this thing called textualism is supposed to work. So whatever is in the legislative history or whatever is in John Roberts' idiosyncratic notion of the battle days to which he referred repeatedly.

00:14:29 Speaker_04
In his view, the statute was supposed to respond to that.

00:14:32 Speaker_04
This statute explicitly authorizes the EPA to impose, quote, other limitations, not just effluent limitations, which would seem pretty clearly to encompass the kinds of broader prohibitions to which the city is subject.

00:14:44 Speaker_04
It also seems relevant that Congress amended the Clean Water Act to require compliance with a specific program that contained general prohibitions rather than specific effluent limitations, which is a point that Justice Jackson underscored.

00:14:56 Speaker_06
And if, as it seems likely, the Republican appointees are just simply going to declare in very broad strokes that these water quality standards aren't the kinds of limitations that Congress intended for the EPA to promulgate, notwithstanding the provisions of the statute that we just mentioned,

00:15:13 Speaker_06
Justice Kagan made clear that this was going to happen over her dead body. She was not going to go quietly into the polluted sewage infested waters of the San Francisco Bay at night, as you can hear in this montage of clips. So let's roll them.

00:15:29 Speaker_10
Ms. Sealy, I mean, there are lots of different kinds of regulations in the world. Some people like some kinds. Some people like other kinds. Some regulations are really prescriptive. Do this, this, this, and this.

00:15:38 Speaker_10
And then, you know, some people hate those kinds of regulations. They'd rather have regulations that are less prescriptive, that say, here's the goal, you decide how to meet it. That gives a party more flexibility and so forth.

00:15:51 Speaker_10
So, you know, some people, you know, it's, you know, it's, you know, it's, you know,

00:15:55 Speaker_10
There's got to be something in this statute that tells you that the agency can't decide to go the less prescriptive, more flexible, you decide how to meet it, this is the goal route. And I don't see anything in this statute that does that.

00:16:12 Speaker_06
So I disagree, Your Honor, that this provides a flexible standard.

00:16:15 Speaker_10
Let's talk about the statute. But what I don't hear you telling me is like what in the statute prevents the EPA from doing this. But of course, One C does not talk about effluent limitations. One C just talks about limitations.

00:16:30 Speaker_10
One A talks about effluent limitations. One B talks about effluent limitations. You were adding a word to one C to get effluent limitations there, weren't you?

00:16:41 Speaker_06
No, I disagree that we're adding a word.

00:16:42 Speaker_10
So section... Well, you're definitely adding a word because there's only limitation there.

00:16:48 Speaker_06
whatever the statute says. The Republican justices are just saying, watch us do some magic textualism. And Justice Kagan is like, I got a different rabbit that I'm going to pull out of my hat.

00:16:58 Speaker_03
How about that? We will get to the magic part in a bit.

00:17:00 Speaker_03
But we should note that when the lawyer representing the city of San Francisco took the podium, some of the Republican justices seemed a little confused about which side they should hate, the EPA or San Francisco.

00:17:11 Speaker_03
San Francisco received some skeptical questions from both Justices Thomas and Alito. But then they remembered, oh, yes, that's where the Bohemian Grove meets.

00:17:20 Speaker_06
I like that place.

00:17:22 Speaker_04
I like that place. It's not in San Francisco, right? No, it's near San Francisco. You've got to fly in there.

00:17:26 Speaker_06
You've got to fly into San Francisco, though. You have to traverse San Francisco to get to the Bohemian Grove.

00:17:30 Speaker_04
You might need to drink some water while stopping en route to the Bohemian Grove. But I guess that's not enough to make them worry.

00:17:37 Speaker_06
Nobody wants GI distress at the Grove.

00:17:39 Speaker_04
Nobody wants that. at the Grove, but evidently they're fine with it or maybe they just bring their own bottled water in.

00:17:44 Speaker_04
In any event, yeah, so there was this discomfort among some of the Republican justices about the possibility of ruling for San Francisco, even if that did mean sticking it to the EPA again and some more.

00:17:54 Speaker_04
And at one point, the EPA's lawyer seemed to feel this energy and to lean into it, basically like, you're right, fellas, this is all San Francisco's fault. So let's play that clip here.

00:18:02 Speaker_07
Reuben Cahn, Jr. : Mr. Liu, you said at one point that you lacked the information. necessary to provide a more specific provision than the provisions that are in question here.

00:18:14 Speaker_07
But is there anything that prevented you from obtaining whatever information you thought you needed?

00:18:20 Speaker_01
Yes, San Francisco.

00:18:22 Speaker_07
Under the statute, San Francisco You have no ability and the State has no ability to require them to produce any information?

00:18:30 Speaker_01
We did require them. We issued information requests under 33 U.S.C. 1318a.

00:18:36 Speaker_03
But the Republicans got over their discomfort with ruling for liberal loving San Francisco once the EPA stood up and they remembered, yes, this is who we really hate.

00:18:48 Speaker_03
You know, ladies, forget Donald Trump as your protector, keeping you safe from quality health care that might be necessary to save your life, your health or your fertility.

00:18:57 Speaker_03
Get you someone who will defend you and stand up for you the way that Brett Kavanaugh will stand up for shit dumping polluters, because

00:19:04 Speaker_03
Really, you know, I don't think Brett Kavanaugh has been this mad since he was scream asking Senator Klobuchar if she had a drinking problem during his confirmation hearings.

00:19:14 Speaker_03
He was absolutely incensed about the supposed unfairness to polluters when the EPA doesn't tell them exactly how much they can pollute. So roll that tape here.

00:19:26 Speaker_08
Why, you know, some of these standards are not as specific. Marine communities shall not be degraded. The odor of fish shall not be altered. It's hard to know.

00:19:39 Speaker_01
I mean, to take the first example, Justice Kavanaugh.

00:19:42 Speaker_08
It's just hard. I'm not looking for comment on the specific example. It's just hard.

00:19:46 Speaker_03
This clip was just incredible to me because, you know, a shorter version of this. I'm not looking for a comment. I just like to make a speech about justice for polluters. That's not how Supreme Court arguments are supposed to work. Right.

00:19:58 Speaker_03
The justices just making these statements about their principles. And yet Kavanaugh was just explicit about this.

00:20:05 Speaker_03
And it seemed to me like while the rest of the country watches Mudang TikToks, you know, Brett Kavanaugh is watching videos of companies or cities dumping sewage into the waters and thinking, ah, nature is so soothing.

00:20:19 Speaker_04
So I pull up the occasional Mudang video just like on the Internet, but I didn't realize Mudang was all over TikTok. This might be a reason to consider dipping back into TikTok, which I rarely do. But Mudang is getting big, which makes me sad.

00:20:31 Speaker_06
Mudang is getting big, she says.

00:20:33 Speaker_03
Mudang is big, has been big for a while. Has been big. No, no.

00:20:37 Speaker_04
OK, so I've watched just the baby, baby videos. Where you have been living. He's not big as his mom, though. He's still a little, right?

00:20:44 Speaker_06
And we don't mean in size, Kate.

00:20:46 Speaker_04
It's a baby. It's a baby hippo. I'm saying he's bigger than he was when he was, oh. I was saying, I'm sad that his size is increasing because he was so little initially.

00:20:55 Speaker_06
OK, good. I'm glad you clarified that because we were going to have to go and have an intervention.

00:21:01 Speaker_04
Yeah, we're going to have to discover this super secret baby hippo. Hippo.

00:21:05 Speaker_05
Did you guys know about this hippo named Mudang? Did you know about Mudang?

00:21:10 Speaker_04
entirely plausible, but in fact, I did know. See, I'm so aware that I have charted Mudang's growth physically, not in likes or follows. Only you would have Mudang on a growth chart.

00:21:24 Speaker_04
I want Mudang to be able to swim and grow in clean waters, is what I'm saying, and Brett Kavanaugh, in fact, is not.

00:21:31 Speaker_05
Justice for Mudang. Not the polluters.

00:21:35 Speaker_04
So there was some effort by the federal government to kind of push back against Kavanaugh's justice for polluters sort of through line and, you know, his efforts to depict the supposed unfairness to the polluters that this entire regime reflects.

00:21:49 Speaker_04
So maybe let's play that clip here.

00:21:51 Speaker_08
You're suing San Francisco separately for a lot of money based on a standard that they had no idea You know, at least that's the theory. That's the theory in your position. Your position would allow that.

00:22:05 Speaker_01
I don't think so. Yes, it would. I mean, the Bayside complaint is Exhibit A for what you said is not going to be true. The standards that are violated in those cases are numeric water quality criteria.

00:22:19 Speaker_04
So that's the federal government responding. And then there was a point at which Kavanaugh's solicitude for the polluter class, the polluter-tocracy, if you will, was just like too much stupidity for Justice Kagan to handle. So let's roll that tape.

00:22:38 Speaker_10
This issue of, like, we don't know what we're supposed to do, it's horribly unfair, and you think, well, they've really not come up with any particular way in which that's true. I mean, I thought that most of these were something like this.

00:22:52 Speaker_10
There's a California water quality standard that says, waters shall not contain floating material. in concentrations that adversely affect fishing and swimming.

00:23:01 Speaker_10
And it turns out EPA says that notwithstanding that standard, San Francisco has left lots of toilet paper floating in Mission Creek. I mean, that's not a we-don't-know-what-to-do issue.

00:23:13 Speaker_10
Like, we know you're not supposed to leave toilet paper floating in Mission Creek, don't we?

00:23:18 Speaker_08
And that's one example. There are plenty of others.

00:23:22 Speaker_10
I mean, there might be examples where they don't know something, although they haven't come up with any. But there are plenty of examples. I could go on and on. There are plenty of examples where it's obvious, you know.

00:23:33 Speaker_10
don't like, like, spew the kind of chemicals that discolor the water.

00:23:40 Speaker_03
I appreciate and relate to these moments where the stupidity is just too much for Justice Kagan, who I think had like operated in this universe where she thought smart arguments and smart people

00:23:52 Speaker_03
Rose to the top and it's just endlessly frustrating to her to be reminded that that is not in fact the case because that exchange was just 9-1-1 I'd like to report a murder like a body has been found in a pool of brown water, you know, I Chief Justice Roberts you have the opportunity to do the funniest thing ever assign the majority to coach Kavanaugh

00:24:16 Speaker_03
And then we will keep our fingers crossed that the dissenters give it to Justice Kagan. And she will murder this whole argument and him again, and again, and again, some more.

00:24:27 Speaker_04
It's the only thing keeping me going after this argument is thinking about that dissent.

00:24:30 Speaker_03
This argument was so brutally stupid. I mean...

00:24:36 Speaker_06
Speaking of brutally stupid, Coach Kavanaugh wasn't the only Republican appointee to take a body blow during the argument. So let's roll the tape of Justice Jackson absolutely bodying Justice Gorsuch.

00:24:50 Speaker_09
If that's the case, then I guess I'm kind of circling back to the Chief Justice's question, and really maybe administrative agencies generally. The point was to

00:25:00 Speaker_09
to give people notice ex ante of their legal obligations rather than rely on tort ex post, nuisance law.

00:25:08 Speaker_02
I'm a little surprised by the suggestion that the goal of the statutory permitting process here was fair notice.

00:25:15 Speaker_02
Um, I thought the goal was to ensure that there were clean waters in the United States and that that was not actually happening under the previous regime. And so Congress was giving the EPA additional tools to effectuate that result.

00:25:30 Speaker_06
It seems that a mutual respect for the rule of lenity will only get you so far when one of you is spewing absolute nonsense. Or BS. Lesson learned.

00:25:41 Speaker_04
The honeymoon between those two felt like it was over in that argument. I mean, I think it's true that they have like points of convergence, but this is clearly not one of them.

00:25:51 Speaker_04
And just to kind of underscore the insanity of Gorsuch here, he is literally saying, and Kavanaugh alluded to the same thing earlier, that the whole point of the Clean Water Act is to help polluters.

00:26:03 Speaker_04
And KBJ is like, I read the words, Neil, it's called the Clean Water Act and not the Safe Harbor for Polluters Act.

00:26:10 Speaker_06
And she's actually right. And again, because this is a court that professes an interest in history and tradition, maybe this history will be instructive.

00:26:19 Speaker_06
The Clean Water Act was enacted in 1972 in response to a series of absolutely horrific water pollution events that took place in the 1960s. So

00:26:28 Speaker_06
There was, in 1968, a survey that revealed that the pollution levels were so bad in the Chesapeake Bay that fishermen suffered millions of dollars in lost revenue because they couldn't sell the polluted fish.

00:26:40 Speaker_06
And there was a 1969 study that found that bacteria levels in the Hudson River were 170 times the legal limit.

00:26:47 Speaker_06
The same year, pollution from local food processing plants killed 26 million fish in a Florida lake, which was the largest fish kill on record at that point.

00:26:57 Speaker_06
And most famously, water pollution caused an enormous oil slick that resulted in a fire on the Cuyahoga River in Cleveland, Ohio.

00:27:06 Speaker_06
It's hardly surprising that when liberal squish Richard Nixon established the EPA in 1970, just two years before Congress enacted this Clean Water Act,

00:27:15 Speaker_06
it was understood that dealing with the growing issue of water pollution was going to be a major part of the agency's charge.

00:27:23 Speaker_06
But again, history and tradition only works when you're trying to protect a gun and not protect women, but water pollution, I don't know her.

00:27:34 Speaker_04
Right. So who's going to let historical facts get in the way of hobbling administrative agencies? Definitely not one Neil M. Gorsuch. True to his EPA... Say his whole name, Kate. What is it? Neil McGill Gorsuch? Neil McGill.

00:27:47 Speaker_04
That is a man who wants to pollute. Neil McGill Gorsuch. M. McGill, I think either way. Yeah, this is his true passion and also aligns with his true EPA villain origin story.

00:27:58 Speaker_04
He could not resist taking yet another opportunity to press the case against agencies, both EPA specifically and more generally. So let's play a clip and then explain it.

00:28:08 Speaker_09
I'm just asking as a practical matter, if we're essentially saying don't create a nuisance and EPA sets the standard as opposed to an expert witness, what value has been added?

00:28:21 Speaker_03
He is asking, as if it were a rhetorical question, why on earth would we want an agency to decide if polluters polluted the water too much and caused harm to certain species? Why not just have a lay jury do it?

00:28:34 Speaker_03
They could hear from an expert, and it would be the same. And he is asking this at the time when non-delegation petitions from the federal government have arrived at the Supreme Court.

00:28:45 Speaker_03
The non-delegation doctrine, to remind listeners, challenges the idea that Congress may delegate to administrative agencies the power to make rules governing private parties. So the non-delegation doctrine is not a thing. It's not the law.

00:28:58 Speaker_03
It was invoked by the Supreme Court twice in 1935. But because Clarence Thomas would like to make non-delegation great again, two court of appeals have insisted that non-delegation is, in fact, the law.

00:29:10 Speaker_03
and invoked the doctrine to invalidate two federal programs. And the Solicitor General has asked the Supreme Court to review those decisions, which, again, could be the first step of the Supreme Court actually reviving the non-delegation doctrine.

00:29:26 Speaker_03
Why would the Solicitor General do that, just because you can't allow those decisions to stand? Because what they've done is these courts have revived the non-delegation doctrine in their circuits.

00:29:35 Speaker_03
And when they do that, they are potentially vacating a rule nationwide. So I don't think the Solicitor General really has a choice here. So you know who also doesn't have a choice? Planet Earth. Right. And clean drinking water. You're all in danger.

00:29:55 Speaker_03
Poop and polluters. You'll be fine. And I just want to pause over how ridiculous this timeline has become.

00:30:03 Speaker_03
We are debating whether the EPA can, under the Clean Water Act, impose water quality standards it has determined are necessary to stop billions of gallons of sewage from being dumped into the ocean.

00:30:16 Speaker_03
It's just that, like, every year the court is doing something weirder, right? They're overruling Roe. They're nuking student debt relief. Then they're declaring the president is, you know, above the law and entitled to absolute immunity.

00:30:28 Speaker_03
And I've talked about this before, but I was working on a book last year about the Supreme Court, and I remember when I was going through the stages of talking to publishers, it was like, okay, well, yes, the Supreme Court overruled Roe, but are they really going to do anything else crazy?

00:30:41 Speaker_03
And then they nuke student debt relief. And the question is, OK, well, so they nuke student debt relief. Are they going to do anything crazy? And now it's presidential immunity.

00:30:49 Speaker_03
And now it's, can San Francisco throw billions of gallons of shit into the ocean? And we're just going to pretend that's OK. And so if you want to hear more about this endless devolution of the court into madness, you can actually preorder my book now.

00:31:04 Speaker_03
We'll put the link in the show note.

00:31:06 Speaker_03
It's called Lawless, so it will be out in June whenever the Supreme Court does the next insane thing, which appears to include, again, blasting gallons of shit being poured into the ocean and declaring that the Clean Water Act meant to protect that.

00:31:22 Speaker_03
I mean, again, it's just the stupidest of timelines.

00:31:26 Speaker_06
It's not just a stupid timeline. It's so meta. I mean, this is a court that's literally shitting on people.

00:31:31 Speaker_03
It's going to shit. Everything is going to shit.

00:31:35 Speaker_04
The one silver lining in this cursed, cursed timeline that we are living in is that you get to buy and read Leah's book to help you make sense of all of it.

00:31:43 Speaker_06
It's true. We get to listen to her all the time and we feel better. So I think you might want this on your nightstand. If you're looking around, you're like, why is that water so brown? Let me consult the book.

00:31:54 Speaker_06
It will explain why it's Neil Gorsuch's fault.

00:31:58 Speaker_03
always.

00:31:59 Speaker_06
So anyway, stepping back a little we wanted to note something that the Democratic appointees also floated at oral argument, which is that to the extent these conditions may seem too confusing or somewhat unfair.

00:32:13 Speaker_06
San Francisco actually has a number of avenues to challenge them beyond this particular challenge, which seems intent on blowing up water quality standards across the nation. So

00:32:24 Speaker_06
For example, San Francisco, if they thought these restrictions were too confusing or unfair, could challenge them on the ground that they are arbitrary and capricious.

00:32:33 Speaker_06
If they thought that the EPA didn't have good enough reasons to adopt general water quality standards rather than specific effluent limitations, San Francisco could also do that through an arbitrary and capricious challenge.

00:32:45 Speaker_06
If the issue is that the standards are too vague, San Francisco could challenge their vagueness on vagueness grounds. So there are many avenues that San Francisco could have pursued if the city truly feels that it has been wronged by the agency.

00:32:59 Speaker_06
It doesn't necessarily have to pursue this path, which, again, involves trying to wipe out water quality standards, writ large, hobble the Clean Water Act, and hobble the EPA.

00:33:11 Speaker_04
Yeah. So surprising no one, the conservative justices, the ones who allegedly, at least this is like their mythology, favor restraint and judicial minimalism. Turns out it's bullshit. Maybe always was. It definitely is.

00:33:27 Speaker_04
So they do seem very inclined to completely disregard all of these possible off-ramps, to disregard kind of acknowledging that San Francisco very explicitly chose not to take these more modest routes to potentially getting some relief that doesn't involve blowing up this entire set of standards.

00:33:42 Speaker_04
But it is possible, I suppose, that a majority could say something like, you can only do these permits like this only under certain circumstances. They could limit the EPA's authority without wiping it away entirely.

00:33:54 Speaker_04
That, based on what we heard at argument, may be the best we can hope for, which is a very, very bleak place to be.

00:34:01 Speaker_06
I mean, I have to say, I'm a little disappointed in San Francisco. And I just want to note, Oakland would never.

00:34:09 Speaker_03
It is a sad state of affairs because They could have challenged these on other grounds, and they did do some of them in the lower court, but then they didn't ask the Supreme Court. to take up any of them.

00:34:23 Speaker_03
And it seems like they could have, should have done so, because you know the court is going to rule against the EPA, right? The only question is how they violated the law.

00:34:32 Speaker_03
So why not offer the court up a narrower ground that doesn't call into question the EPA's ability to adopt these clean water standards, which are sometimes necessary, as the federal government lawyer noted, if you don't have the specific information that allows you to adopt more specific rules about

00:34:50 Speaker_03
particular polluters but this is where we are the stupidest shittiest of timelines Let's quickly recap some of the other cases on that note. One of the cases the court heard last week was Buarfa v. Mayorkas.

00:35:14 Speaker_03
This is a case about judicial review of immigration determinations.

00:35:18 Speaker_03
Federal law, the Immigration and Naturalization Act, governs the availability of visas, and it requires DHS, Holem Security, to reject visas under certain circumstances, which are known as non-discretionary denials.

00:35:32 Speaker_03
And courts can review those non-discretionary denials, but they cannot review discretionary decisions. Immigration law also provides that after a visa has been approved, Homeland Security, quote, may revoke the approval, quote, at any time

00:35:47 Speaker_03
for, quote, what the secretary deems to be good and sufficient cause, end quote.

00:35:52 Speaker_03
The question here is whether you can get that judicial review when a visa has been revoked based on a reason that would supposedly be grounds for a nondiscretionary denial.

00:36:01 Speaker_03
That is, if the visa had been denied in the first instance for this reason, you could have gotten review. The question here is, if the visa has been revoked for that reason, can you still get review as you would for a nondiscretionary denial?

00:36:14 Speaker_06
Amina Barfa filed a visa petition on behalf of her husband who's a non-citizen and USCIS, which is the Citizenship and Immigration Service, approved the petition but then later revoked that approval after finding that Barfa's husband had previously entered into a different marriage for fraudulent purposes.

00:36:32 Speaker_06
Ms. Barfa filed a complaint in district court seeking review of that determination and the question is, whether she can get review of that revocation, because it would have been, if it were in a denial posture, a non-discretionary denial.

00:36:47 Speaker_06
This was, in all respects, a pretty short argument, and it wasn't entirely clear which way it seemed like the court would go, although it seems like the government is likely to prevail here. maybe because it's immigration.

00:37:02 Speaker_06
The only justice who seemed to obviously be on Buarfa's side was Justice Gorsuch.

00:37:09 Speaker_04
Some of the justices' uncertainty about the case focused on whether the existence of a sham marriage was actually a non-discretionary ground for denying a visa.

00:37:16 Speaker_04
And some of the justices seemed concerned about a related sort of perverse consequence of that argument. So they were concerned that saying that the existence of a sham marriage

00:37:24 Speaker_04
is a non-discretionary basis for rejecting a visa would mean that the agency could never exercise discretion and waive that as a reason to reject a visa. But there also seemed to be resistance to the petitioner's statutory argument.

00:37:36 Speaker_04
And as we said when we summarized the case, the INA's revocation section is generally quite discretionary. It's the initial approval slash denial section where there is a good amount of non-discretionary language.

00:37:48 Speaker_04
And so there was some discomfort with just importing the mandatory language into the discretionary section

00:37:52 Speaker_04
based on the idea that it would be odd to be able to obtain review as to the initial approval or denial but not as to the revocation, but that oddness isn't normally a reason to overlook statutory language, especially if there may be, as was floated in the argument, some plausible explanation for treating the two scenarios differently.

00:38:09 Speaker_06
The court also heard oral argument in Medical Marijuana v. Horn, and this was a case about damages under the RICO statute, that's the Racketeer Influenced and Corrupt Organizations statute.

00:38:21 Speaker_06
The question here is whether economic harms resulting from personal injuries are the sorts of injuries to quote-unquote business or property by reason of the defendant's acts under RICO.

00:38:32 Speaker_06
So RICO gives private plaintiffs a cause of action to recover trouble damages for injuries to business or property when those injuries occur because the defendants have committed certain RICO offenses.

00:38:43 Speaker_06
But RICO excludes recovery for personal injuries. Here, Douglas Horn, who is a commercial truck driver, consumed Dixie X, a product that the petitioner, Medical Marijuana, advertises as being THC-free. THC is the psychoactive component in marijuana.

00:39:02 Speaker_06
A drug test, however, detected THC in Mr. Horn's system, and he was fired from his job.

00:39:09 Speaker_06
So Mr. Horn sued Medical Marijuana, the manufacturer of Dixie X, arguing that his lost wages, and really the loss of his job, was an injury to business or property, and namely his business, driving the commercial truck.

00:39:24 Speaker_03
So Lisa Blatt argued for petitioner medical marijuana, and Isha Anand argued for Douglas Horn. And it seemed as though the justices, I think a majority of them probably, were skeptical of medical marijuana's position.

00:39:37 Speaker_03
And that prompted some characteristic, character-filled moments of Lisa Blatt talking to the justices like they're normal people, which in some ways, respect and I love.

00:39:48 Speaker_03
At other times, it led to some interruptions or weird exchanges, particularly between Lisa Blatt and Justice Kagan, and then between Lisa Blatt and Justice Jackson. So the justices' skepticism came from two directions.

00:40:01 Speaker_03
One was the sense that loss of a job is an injury to a business. A job is someone's business, so a purely textualist skepticism.

00:40:10 Speaker_03
Petitioner Medical Marijuana seemed to concede that in some instances, the loss of a job or a workplace could constitute an injury to a business or property under RICO, like if someone extorted you out of a job or blew up your workplace.

00:40:22 Speaker_03
And petitioners- That's the Artie Bucco Rico from The Sopranos. Yeah. But medical marijuana seemed to want to exclude injuries to business or property that were caused, in some sense, by a personal injury or injury to a person.

00:40:35 Speaker_03
But here's that pesky textualism rearing its head once again. That's not really what the statute says.

00:40:41 Speaker_04
And then Justices Sotomayor and Kagan and Jackson articulated a second basis for skepticism about medical marijuana's view that injuries that are caused by personal injuries are excluded from recovery, even when they are business or property injuries.

00:40:53 Speaker_04
And they really emphasized that what medical marijuana was objecting to was whether the alleged RICO violation, like mislabeling, caused the plaintiff's injuries, specifically the employer's decision to fire him.

00:41:04 Speaker_04
But as they noted, that causation question is a separate question from whether the injuries are to the plaintiff's business or property as required by RICO.

00:41:12 Speaker_04
Right here, as in any RICO case, the plaintiff has the burden of establishing causation, and that causation question really wasn't before the court.

00:41:20 Speaker_04
It would have to be sorted out in the case eventually on remand, and Isha Anand, who again argued for Horn, the employee, conceded that it might be an uphill battle and her client might lose on that issue, but that that wasn't the issue that the court was faced with deciding.

00:41:32 Speaker_03
Yeah, so it's not entirely clear how the case is going to be resolved.

00:41:36 Speaker_03
Some of the Republican justices, like the chief, seemed concerned that RICO plaintiffs could plead around the exclusion of personal injuries by recasting them as injury to business or property.

00:41:46 Speaker_03
But as the Democratic appointees pointed out, if they can do that, that's because Congress drafted the statute to exclude only certain types of injuries, not particular ways in which injuries are caused.

00:41:57 Speaker_03
And in any case, the requirement that plaintiffs show proximate causation that the defendant's actions caused their injury could take care of many of the cases that the Republican justices seem concerned about.

00:42:08 Speaker_03
So here, for example, it's probably going to be difficult to establish that medical marijuana's marketing of Dixie X caused Horne to lose his job when there's an independent decision by a third party, the employer involved here.

00:42:20 Speaker_06
There was an interesting moment where the Chief Justice appeared to confuse one of his colleagues with the late Antonin Scalia. He referred at one point in the oral argument to Ishanan's dialogue with, quote unquote, Justice Scalia.

00:42:36 Speaker_06
And that raised some eyebrows. Maybe it's just spooky season upon us. And the Chief Justice is like Hailey Joel Osment, seeing dead people everywhere. That could happen.

00:42:47 Speaker_06
Or maybe it's just a credit to Isha, who is such an effective advocate that she is actually capable of communing with justices in the great beyond.

00:42:57 Speaker_04
Either way, a notable slip of the tongue. It was weird. I mean, I just felt like there was a moment, a beat of silence, and no one said anything to correct him, and he hadn't even realized the mistake. It was really quite strange.

00:43:10 Speaker_04
But Isha was amazing, as she has been in every argument we've heard from her. So she just was unfazed and pressed on.

00:43:16 Speaker_05
She's like, let me get my Ouija board. Hold on. Let me see what he says.

00:43:21 Speaker_04
But it was like between that weird slip up and the fact that he thought his immunity opinion would stand the test of time, rise above politics, the things that we know from the Times reporting he believed in completely deranged fashion would happen, would receive his immunity decision.

00:43:36 Speaker_04
It's really like there seem to be some signs that John Roberts is not necessarily at the very top of his game in this moment.

00:43:42 Speaker_06
The court also heard oral argument in Buffkin v. McDonough, and Mel Boswick appears to be headed to a win in a veterans benefit case.

00:43:50 Speaker_06
She previously argued George v. McDonough, and she has been successful in a string of lower court cases on veterans benefits. veteran on veterans benefits.

00:44:02 Speaker_06
The question in this case is whether the Veterans Court must ensure that the Department of Veterans Affairs, the VA, properly applied a statutory rule in deciding the availability of veterans benefits.

00:44:13 Speaker_04
Federal law requires the VA to give, quote, the benefit of the doubt to a veteran claiming disability benefits when there is, quote, an approximate balance of positive and negative evidence.

00:44:22 Speaker_04
In reviewing a VA benefits determination, the Veterans Court must, quote, take due account of the VA's application of the benefit of the doubt rule.

00:44:28 Speaker_04
And the question here is whether this due account provision requires the Veterans Court to independently assess whether the VA correctly applied the benefit of the doubt rule or it instead authorizes only clear error review.

00:44:39 Speaker_03
The federal government argued that the secretary's decision is only reviewed for clear error and that veterans cannot get the court to independently review the decision.

00:44:47 Speaker_03
And there seemed to be concern in the argument that this would make the due account provision meaningless, something several justices brought up. And that is the October sitting, the first sitting of October term 2024. It is going to be

00:45:04 Speaker_03
a long ass term. And on that positive note, let's discuss some court culture. I'm sure things are going great in all the other courts in the United States. So let's check in on my home circuit, the Sixth Circuit.

00:45:19 Speaker_03
In a previous episode, we mentioned different state court decisions on whether Robert F. Kennedy Jr. 's name would remain on the ballot in states after he withdrew from the election late in the game. Many cases after some ballots were already printed.

00:45:35 Speaker_03
And one of those states was in Michigan, where the Michigan Supreme Court ruled that under Michigan law, RFK was not entitled to have his name wiped away from the ballot at this late stage of the game.

00:45:46 Speaker_03
So naturally, RFK decided to go to federal court to ask them to get his name off the ballot, arguing that it violates his First Amendment rights to send a message that he wants to be a presidential candidate when he does not, in fact, want to be one, and that that First Amendment interest overrides Michigan's interest in the orderly conduct of presidential elections.

00:46:04 Speaker_03
You know, ballots have already gone out in Michigan. Hundreds of thousands of ballots have been returned. We're less than a month from the election. Ladies, a bear would not do this to democracy. Always choose the bear.

00:46:16 Speaker_04
Another reason to choose the bear.

00:46:18 Speaker_03
I'm your favorite reference, baby, the bear.

00:46:21 Speaker_04
So Kennedy, who loves democracy far less than the bear, was unsuccessful before a panel of the Sixth Circuit. And when he sought rehearing on bank, the court denied, but by the narrowest of margins.

00:46:32 Speaker_04
And some Sixth Circuit judges wrote separately to basically say, yeah, let's do this. And their claim is that Purcell, which is a general principle that courts should not upend election administration on the eve of elections,

00:46:43 Speaker_04
doesn't bar this intervention because the Michigan ballots are themselves confusing.

00:46:48 Speaker_04
And of course, this is an argument that never seems to have any purchase with this kind of judge when applied to confusing voter ID laws or confusing precinct rules or whatnot. But they also say that the Michigan Supreme Court got Michigan law wrong.

00:47:01 Speaker_04
And, just like cherry on top, that the Michigan Secretary of State, who was, by the way, a professor of election law before becoming the Secretary of State, is unilaterally changing the rules and potentially the outcome of the election.

00:47:13 Speaker_04
And, you know, so all these Michigan officials were obviously proceeding not sufficiently mindful of the overarching rule of election administration, which is that only Republicans get to do things that advantage them and change the outcome of an election on the eve of an election or maybe anytime.

00:47:29 Speaker_04
But I mean, the good news is that RFK, kind of chaos monster, did not manage to upend the election in the state of Michigan. But it is terrifying how close it seems like he got.

00:47:40 Speaker_06
Yeah. Let's now turn from Michigan to the Nebraska Supreme Court, which invalidated an effort by Nebraska state officials that would have disenfranchised tens of thousands of people with prior felony convictions. Nebraska is an electoral

00:47:57 Speaker_06
I don't know, polar coaster right now. There's a tight Senate race this cycle in Nebraska. And of course, this is a state that doesn't use a winner-take-all model for its Electoral College votes.

00:48:09 Speaker_06
Nebraska has five electoral votes in the Electoral College and two come from the state at large. that then one comes from each of three congressional districts.

00:48:17 Speaker_06
So there's a lot of activity in Nebraska, particularly in the little blue dot districts where Democrats might be able to pull an electoral college win or get an electoral college vote. So all of this makes Nebraska a place to watch right now.

00:48:34 Speaker_06
And apparently the Nebraska Legislature and the Nebraska Republicans know how hotly contested this is because the Nebraska legislature enacted a law that automatically restored voting rights to individuals who had completed their sentences.

00:48:49 Speaker_06
But then, the Republican AG in Nebraska issued an opinion saying that the legislature's new law violated the Nebraska Constitution. And for good measure, he said that another law from 2005

00:49:03 Speaker_06
also violated the state constitution in re-enfranchising individuals. The Republican Secretary of State then prohibited election officials from registering any person whose voting rights would have been restored by those laws.

00:49:18 Speaker_06
Again, an election battleground state where there are a number of electoral votes that don't necessarily go with the entire state but can be peeled off and might go to different constituencies again.

00:49:32 Speaker_03
And you all of a sudden discover that this 20 year old law is unconstitutional. Now would be the time not to enforce it. So weird. So weird. This matter reached the Nebraska Supreme Court who basically said, No, definitely not.

00:49:51 Speaker_03
You know, only we the Nebraska Supreme Court declare laws unconstitutional Republican attorneys general and secretaries of state don't.

00:49:58 Speaker_03
You know, the opinion asked, quote, do we want to live in a world where every state employee who has a hunch a statute is flawed gets to ignore it? Question mark.

00:50:07 Speaker_06
So did you hear that the Electoral Count Act might be unconstitutional? Likely unconstitutional.

00:50:14 Speaker_03
Same energy.

00:50:15 Speaker_05
Same energy. Yes.

00:50:17 Speaker_03
Yeah. So now Nebraskans who were re-enfranchised actually could register. But as Justice Lindsay Miller Lerman, who's been on that court for many years, pointed out, the Nebraska Supreme Court issued this opinion and order so late.

00:50:33 Speaker_03
after months of consideration that after the order, there were just two days left of online voter registration and nine days left of in-person registration.

00:50:44 Speaker_03
So while the court ultimately rejected the state's blatant partisan effort at disenfranchisement, it also partially rewarded that effort through the timing of the decision. It's almost like they took a page from the U.S.

00:50:58 Speaker_03
Supreme Court on the immunity decision. I learned it from watching you, Dad. I learned it from watching you. Exactly. Fish rots from the head.

00:51:07 Speaker_03
Did want to take an additional beat on Justice Lindsay Miller Lerman's separate opinion, which is a partial concurrence in dissent. She agrees with the bottom line conclusion. There is a section entitled, Procedure. Timing is everything.

00:51:19 Speaker_03
Let the games begin? Or was it a mere coincidence, question mark? Love the Taylor reference. Love the notes about procedure. And it concludes with noting, it is most unfortunate that this court encourages this apparent scheme.

00:51:37 Speaker_04
Legendary. Yeah, just legendary. We've been aware of Justice Miller-Lerman for a while. I'm very happy that we now have a chance to mention her in that epic writing. And as a practical matter, it's just a really important point.

00:51:49 Speaker_04
There had been so much that rules had changed. People were understandably concerned that they might run afoul of the law after having finished their sentences if they just tried to participate in self-governance.

00:52:01 Speaker_04
And I hope that the on-the-ground forces in Nebraska aren't going to mobilize quickly enough and the people are going to be comfortable enough to actually come forward and register.

00:52:09 Speaker_04
But obviously, like, these insane games by state officials have quite deliberately undermined, like, meaningful broad-based participation.

00:52:17 Speaker_04
And it's like when the Nebraska legislature, which is a conservative body by supermajority, decides to re-enfranchise people who have completed their sentences, it's just insane that the executive branch tried to thwart it the way they did.

00:52:28 Speaker_06
Your point about the confusion, again, this is sort of part of the Dobbs, post-Dobbs landscape. This same playbook can be deployed in any number of contexts.

00:52:39 Speaker_06
It's not just abortion where you sow confusion and make it hard for people to understand what their rights are. The one place where it might actually really count right now in voting, the same playbook is being used.

00:52:51 Speaker_06
Make it a weird and confused landscape and then people are deterred from doing what they might actually be allowed to do. All right, speaking of states that we have to just deal with, if anyone's going to talk shit about Florida, it's going to be me.

00:53:05 Speaker_06
So let's turn to the Sunshine State. Florida men had, appallingly, been threatening television stations that aired ads that were supportive of Florida's reproductive rights ballot initiatives.

00:53:18 Speaker_06
Florida officials, including the Surgeon General of Florida and the Department of Health and the Department of Health's General Counsel, told television stations in the Sunshine States to remove political ads supporting the amendment, Amendment 4, or they would face criminal prosecution.

00:53:34 Speaker_06
And if that sounds to you like a bit of a First Amendment problem, then don't bother going to law school. You might as well just be a lawyer, and maybe you should go down to Florida and be the General Counsel of the Department of Health.

00:53:46 Speaker_06
The creators of these advertisements sued these officials, and they asked a court to stop these blatant efforts to violate the First Amendment.

00:53:55 Speaker_06
And a district court in Florida said, yes, this seems like it violates the First Amendment, and issued a temporary restraining order telling the Florida officials to stop threatening people for exercising their actual First Amendment rights.

00:54:11 Speaker_06
And in the words of this absolutely epic and legendary order, quote, To keep it simple for the state of Florida, and that's really important, keeping it simple for the state of Florida and its officials, it's the First Amendment stupid." End quote.

00:54:28 Speaker_06
And check that into my veins. I love that.

00:54:30 Speaker_03
I love the order. It was horrifying what Florida was trying to do here.

00:54:35 Speaker_03
But it is very much a part of a pattern of Republican officials basically fighting democracy and trying to undermine democracy when the issue of voting on reproductive justice actually comes up.

00:54:49 Speaker_03
I mean, obviously, you two wrote about this with respect to, like, the Supreme Court's failure to safeguard the democratic process. that they then handed the issue of reproductive justice over.

00:54:59 Speaker_03
But then we've seen these state-level efforts of people trying to keep ballot initiatives off of the ballot, like in Michigan, or trying to increase the- In Ohio, yeah.

00:55:10 Speaker_03
Right, exactly, the percentage of people who have to ratify a ballot initiative in Ohio, and now these efforts in Florida. And it is, again, just making very clear that this was never about just letting democracy play out. It was about control.

00:55:26 Speaker_06
Let me just say, I do love the Sunshine State. I was raised in Florida. I am not the one making it Florida. It is the Surgeon General, the General Counsel, the Department of Health. So I just want to make that clear. All of my ire is directed at these

00:55:40 Speaker_06
dudes who literally want to just suppress anything that's antithetical to their position. So that's the flora duh of which I complain.

00:55:50 Speaker_06
Not the otherwise beautiful sunshine state with incredible humidity that made me think I had curly hair for far too long.

00:55:57 Speaker_04
Alright, moving on to Georgia, where we actually had two very positive developments in the courts in the last week or so.

00:56:04 Speaker_04
First, a Georgia trial court blocked a controversial new rule that was issued by the state election board and that would have given local election officials the power to block certification of votes at the county level.

00:56:15 Speaker_04
Judge Robert McBurney, whose name may be familiar because he also struck down the state six-week abortion ban back in September, although that was a short-lived order,

00:56:22 Speaker_04
wrote in this case regarding the certification of votes, quote, if county election board members were free to play investigator, prosecutor, jury, and judge, and so, because of a unilateral determination of error or fraud, refused to certify election results, Georgia voters would be silenced.

00:56:38 Speaker_04
Our constitution and our election code do not allow for that to happen. So at least for now, that rule, which again had been wildly controversial from the moment it was issued, is not in effect.

00:56:48 Speaker_06
McBurney also invalidated a rule issued by the same state election board that would have mandated hand recounts of Georgia ballots.

00:56:57 Speaker_06
His opinion reasoned that this was a new requirement, true, that was slated to take effect after voting had already begun, also true, and without any training or any extra budgetary allotment provided to do this work, and that all of this was thus likely to result in what he called

00:57:16 Speaker_06
administrative chaos," also true, that would be totally inconsistent with an obligation to, quote, ensure that our elections are fair, legal, and orderly, end quote. That is Robert McBurney staring in Purcell and writing this particular opinion.

00:57:32 Speaker_03
But here too, right, you can just draw parallels to this isn't just happening in Georgia.

00:57:37 Speaker_03
Republican officials and, you know, groups affiliated with the Republican Party are trying to undermine the sound counting of votes and election administration elsewhere. You know, we talked about the effort where RFK Jr. wanted

00:57:50 Speaker_03
Wisconsin officials to put like a little sticker over his name on the ballots, and that would have interfered with the ability to accurately count ballots in Wisconsin, thereby also undermining the ability to actually conduct a fair counting of votes and clearing the way for possibly more shenanigans.

00:58:08 Speaker_03
So Right. Okay. Speaking of good state court decisions, we also got a decision out of Tennessee.

00:58:16 Speaker_03
A three-judge panel of the Tennessee Chancery Court ruled that several women who were denied abortions under Tennessee's restrictive abortion law should have been able to receive abortions. This case, Blackmun v. Tennessee,

00:58:28 Speaker_03
is like the Amanda Swarovski case out of Texas, is sought to clarify the medical exemptions that are available under Tennessee's abortion ban.

00:58:38 Speaker_03
And the court granted the plaintiff's request to block the state from enforcing its abortion ban as applied to certain pregnancy complications and fetal diagnoses, thus allowing providers to offer abortion care in those instances without fear of being criminally prosecuted.

00:58:52 Speaker_03
To be clear, this doesn't invalidate the state's abortion ban. It is just a narrow ruling that says only the doctors can't face criminal liability for providing abortion in certain medical emergencies or lethal fetal diagnoses.

00:59:06 Speaker_06
We should also note the passing of Lily Ledbetter, who became a kind of unlikely feminist icon and a champion for equal pay.

00:59:16 Speaker_06
And if her name sounds familiar to you, it's because you likely heard of her through the Supreme Court case that bears her name, or the statute that followed the Supreme Court case that bears her name as well.

00:59:28 Speaker_06
So in Ledbetter vs. Goodyear Tire and Rubber Company, the Supreme Court ruled against Lilly Ledbetter when she sued her employer for pay discrimination.

00:59:36 Speaker_06
And in an opinion by noted feminist Samuel Alito, who appeared to just be warming up for Dobbs, the court held that you can't review a pay discrimination claim if the claim was based on decisions made by your employer 180 days or more before you filed your claim.

00:59:55 Speaker_06
And in this situation, Ledbetter had received negative evaluations early on in her time at Goodyear for reasons that she said were rooted in sex discrimination.

01:00:05 Speaker_06
And because of those negative evaluations, her pay never reached the level of similar male employees.

01:00:11 Speaker_06
So her paychecks continued to reflect, she said, gender discrimination, gender discrimination that she never actually knew about because she didn't know what her colleagues were getting paid.

01:00:23 Speaker_06
So she was being substantially docked and didn't really know.

01:00:27 Speaker_04
So the court rejected that theory, finding that the amount of time she had to actually bring her claim under law started, like the clock started, around the time of the evaluations or the original discriminatory action, like not on the basis of subsequent paychecks that incorporated set evaluations and that reflected discrimination.

01:00:44 Speaker_04
This really was, you know, this was early Sam Alito, right? Like this was when he was still sort of like... he was beginning to fully embrace, like, the full diabolical Sam Alito. This was, I think, the first full term that he was at the court.

01:00:56 Speaker_04
He had come on board about a year before.

01:00:58 Speaker_06
I started cutting my teeth by keeping women out of Princeton, but then when that didn't work, I decided to go to Goodyear and do this.

01:01:05 Speaker_04
And, you know, here we are all living with the fallout. But Justice Ginsburg, right, sort of knew who she was dealing with, I think, from very early on. So she was ripshit in this dissent that she wrote.

01:01:15 Speaker_04
But she was also constructive in that she was furious about the court's error, but she also kind of turned her attention to Congress, urging them to amend Title VII, which is the part of the Civil Rights Act that deals with employment discrimination.

01:01:26 Speaker_04
and urging them to explicitly allow plaintiffs like Ledbetter to recover for pay discrimination in the way she thought the statute already allowed, but to make it explicit.

01:01:35 Speaker_04
And Congress, in the halcyon days when inter-branch dialogue really happened, responded. So it passed the Lilly Ledbetter Fair Pay Act. Congress enacted the law.

01:01:46 Speaker_04
It was the first law that President Barack Obama signed in 2009 when he was newly inaugurated. And, you know, it was an enormous moment and a victory. And she became this, again, like Melissa said, sort of unlikely face.

01:02:01 Speaker_04
She never sought the public eye. She was just an employee who brought a lawsuit that really did change things for many, many people. And she passed away last week. Rest in power, Lily Ledbetter. May her memory be a blessing.

01:02:12 Speaker_03
So a few notes before we head out. It has been a wild ride for Empire City, the untold origin story of the NYPD.

01:02:23 Speaker_03
We've dived into the militarization of the force, the policing of abortion in the early days of New York, and the very first investigation into police corruption. But as NYPD news continues to break, we know there's so much more to uncover.

01:02:38 Speaker_03
The series finale of Empire City dropped today, so make sure to follow Empire City wherever you get your podcasts. You can binge all episodes now and enjoy ad-free listening by joining Wondery Plus in the Wondery app or on Apple Podcasts.

01:02:52 Speaker_04
As we approach a pivotal election, the choice between Donald Trump and Kamala Harris will affect more than just what happens in the United States. It will reshape our approach to global politics.

01:03:01 Speaker_04
On Pod Save the World, co-host Ben Rhodes is breaking down the implications for global democracy and foreign policy in a new special election series airing each week from now through Election Day.

01:03:10 Speaker_04
You can find the series every Saturday until November 5th in your Pod Save the World feed or on YouTube.

01:03:18 Speaker_03
Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Michael Goldsmith is our associate producer.

01:03:29 Speaker_03
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. And thanks to our digital team, Phoebe Bradford and Joe Motosky.

01:03:41 Speaker_03
You can subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com forward slash at Strict Scrutiny podcast.

01:03:48 Speaker_03
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.