Texas, Immigration, and Easily Avoidable Chaos | Crooked Media
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March 25, 2024
Strict Scrutiny
Texas, Immigration, and Easily Avoidable Chaos

In This Episode

Steve Vladeck joins Kate and Leah for the play-by-play of what happened with SB4, Texas’s restrictive and extreme anti-immigration law that wound up on the U.S. Supreme Court’s shadow docket. Kate and Leah also recap the oral arguments in cases about the First Amendment and social media, the NRA, and the types of evidence allowed in trials.




Leah Litman [AD]


Show Intro Mr. Chief Justice, may it please the court. It’s an old joke. But when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.


Kate Shaw Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts today. I’m Kate Shaw.


Leah Litman I’m Leah Litman. Melissa is unfortunately out this week. So this is what we’ll be doing. First, we’ll have an explainer on what is going on with Texass restrictive immigration law and the various court machinations and maneuvers that allowed it to go into effect for like four minutes and then again for a little bit of time and to, you know, help us figure all that out. We’re going to be joined by now BFF of the pod, professor Steve Vladeck.


Kate Shaw We will then recap the cases the court heard last week, focusing on the social media case about whether the federal government violated the Constitution when it asked platforms to take down misinformation. And we will end with a short court culture segment on some recent Supreme Court opinions and another fit circuit case on reproductive freedom. This one also from the court of one judge, Matthew Merrick. This particular case is about basically whether litigants can bankrupt Planned Parenthood. Before we get going, though, in case you missed it, we just announced a live show in the nation’s capital on June 22nd. It’s actually been a little while since we’ve done a live show. We really enjoy doing it, and you can grab the opportunity to watch us in action during the high stakes, end of term end times. That is basically June these days as we break down the latest Supreme Court decisions in the city where all the chaos occurs. Those tickets are now live, and if you want to pick them up, head to Cricket.com.au events to snag them before they sell out.


Leah Litman And now on to the show. First up, it is time for some more bad decisions on the shadow docket and with us to help explain what the heck is going on in Texas. And the Fifth Circuit is one of the BFFs of the pod. Professor Steve Vladeck, welcome back to the show, Steve.


Steve Vladeck Thanks, guys. Great to be with you.


Leah Litman So we joked last time that after the Judicial Conference adopted its new policy to tamp down on judge shopping, you had decided to leave University of Texas with a Vladeck Out mic drop. But it seems that the state of Texas, the Supreme Court and the Fifth Circuit have a little more up their sleeves to wish you well on your way out.


Kate Shaw Or a last ditch attempt to get you to reconsider, you’re.


Leah Litman Going to administratively stay your appointment.


Steve Vladeck I mean, you know, if administratively stayed rather thin.


Kate Shaw FactCheck. True. So to make clear what we were talking about, and we have briefly talked on the show before about Texas as before, but just as a brief reminder, Texas is SB four is the restrictive anti-immigration law that purports to impose state criminal penalties for violations of federal immigration law and for holding certain statuses under federal immigration law. It also sets up its own state system of removal, and purports to allow state judges to actually order persons removed.


Leah Litman This is, to put it mildly, not how this fucking works. Federal law is supreme, or it is supposed to be supreme, and therefore preempt state law that is inconsistent with the federal law. And Texas law is wildly inconsistent with federal law governing immigration, because federal immigration law includes carefully reticulated schemes about who can be removed in the removal process, and it greatly restricts state officers ability to participate in the removal process, much less carry out removals, without taking into account where the federal government is on removal determinations.


Kate Shaw At least everything that Leah just described used to be the law. It has long been understood as the proper allocation of authority between states and the federal government, and the court made all of that crystal clear in Arizona versus United States, which was a decision where the Supreme Court held that an Arizona immigration law was mostly preempted by federal law, even though that law was significantly less restrictive and intrusive than the Texas law. At issue here. Okay, so Texas, an access law, a district court, correctly enjoins it on the ground that it is clearly preempted. The district court actually said that Texas law amounts to, quote, nullification of federal law and authority, a notion that is antithetical to the Constitution and has been unequivocally rejected by the federal courts since the Civil War.


Leah Litman And then what happened next, Steve?


Steve Vladeck Yeah. Then the Fifth Circuit. Fifth Circuit did. So Judge Ezra’s injunction was entered on Thursday, February 29th. And I’m just going to be particularly about the dates because they’re going to matter a little bit. So two days later, on Saturday, March 2nd, the Fifth Circuit issued this three part order. Part one is the Fifth Circuit deferred the question of whether to issue a stay pending an appeal to the merits panel that was going to hear Texas’s appeal of the injunction. So the motions panel said, we’re not going to decide whether we’re going to stay pending appeal. Part two is but we are going to issue an administrative stay of Judge Ezra’s injunction, which means that once our administrative state goes into effect, there is no injunction. And so SB four would go into effect. But part three, we’re going to give the United States and the private plaintiffs seven days to go to the Supreme Court and ask the Supreme Court to do something about that, if the Supreme Court wants to. So, in other words, starting on March 2nd, the Fifth Circuit set up a seven day clock and a. The end of those seven days, as before, would go into effect. Then Justice Alito putting.


Leah Litman Scotus on the clock. Classic inferior court behavior, right?


Steve Vladeck Totally like totally normal behavior on the part of the I mean, now I will say, I mean, in the Fifth Circuit, slight defense. I mean, the D.C. circuit did something kind of similar in the Trump case, but we are seeing more of this across the board. And I think that’s an interesting point unto itself. Then you got to, you know, Monday, March 4th, and Alito issues his own administrative stay is to give the court now until, the I guess it was the 13th. Then on the 12th, Alito says, actually, we need more time. And so on the on Tuesday, March 12th, Alito says, all right, now we’re going to go till 5:00 on the 18th. We should note, Justice Alito with with one Gorsuch exception. Alito is the only one of the justices who ever puts time limits on his administrative stays. Everybody else is like, we’re going to issue an administrative stay to buy us time until we need it. Alito keeps imposing deadlines that the court keeps missing. And that happened on Monday. Right. So 5:00 PM came and went with no order from the Supreme Court. So SB four actually apparently went into effect for like four minutes. Then Alito comes back and extends his administrative stay again. Then Tuesday.


Kate Shaw Literally like it’s not like four minutes. It was literally at 5:04. Right. So that he so we were talking about four minutes in which the law is in effect. So if this is giving the sense to our listeners that this is chaos, that I think is correct.


Steve Vladeck So please, just chaos could easily avoidable chaos. And I mean, you know, I think there are folks who have been clamoring for a while that the Supreme Court time stamp its work. 5:04 is the number that folks have been using, because that’s when the press got the orders from Alito. Like, we don’t know when Texas did.


Kate Shaw Right? Because they’re dated but not time stamped. And that sometimes is a significant difference.


Steve Vladeck See what happened on Monday. All right. Fast forward to Tuesday. So Tuesday, right. We get this order from the Full court where the full Court denies the applications to vacate the administrative stay, the immediate effect of which is to put SB four into effect, because everything all the other sort of stopgaps have have passed. And so, in other words, the the Supreme Court lets the Fifth Circuit’s administrative stay go into effect, which thereby pauses the injunction and puts us before, in effect. And that’s a little bit after 2:00 eastern, I think, 2:09 on Tuesday, with these public dissents from Justices Sotomayor and Jackson and Kagan, and with this very strange, interesting and matter concurrence from Justice Barrett, joined by Justice Kavanaugh.


Kate Shaw That is such a kind descriptor, Steve. We’ll, we’ll get into it.


Steve Vladeck We’ll get to it.


Leah Litman He’s still subject to the administrative stays of the Fifth Circuit right now. So he’s got to be careful.


Kate Shaw That’s right.


Steve Vladeck You know.


Kate Shaw He’ll speak freely once he’s actually in the federal enclave of DC.


Steve Vladeck We’ll talk about that issue. But but just to sort of finish the point. So part of what made the Barrett concurrence so and dogmatic is there was this nudge to the Fifth Circuit merits panel to move in her word promptly, and to decide the stay pending appeal quote soon unquote. So by like 6:00 Tuesday afternoon, we had this order from the merits panel, setting an oral argument for 10:00 central time Wednesday on the day pending appeal. And then like three hours later, the merits panel issued another order whereby a 2 to 1 vote, it dissolved the administrative stay, which meant it was put in Judge Ezra’s injunction back into effect.


Kate Shaw Meaning the law goes gets paused.


Steve Vladeck Meaning the law gets paused.


Kate Shaw So the law is no longer in effect.


Steve Vladeck At least and at least as were recorded. That is the state we have been in since, you know, 9:44 Central Time since Pacer does time stamp orders, Tuesday night. And so, you know, the whiplash is a story unto itself. Yeah. But also, I mean, I think part of what became clear, certainly from the oral argument on Wednesday is that Texas doesn’t have two votes on this panel. The panel, which is Chief Judge Priscilla Richmond, who’s a George W Bush appointee, who folks might know as Judge Owen because she she recently remarried and changed her name, Judge Andy Oldham, who’s a Trump appointee, judge Irma Ramirez, who is out the newest Biden appointee. And I think folks weren’t sure where Chief Judge Richmond was, until the argument. And now I think it’s pretty clear that she is on team Arizona is still good law.


Leah Litman And just to make clear what that panel is now deciding, that panel is weighing whether to grant a stay pending appeal of the injunction. That is, they are not, you know, reviewing the preliminary injunction that is a separate merits issue. But in the interim, they’re dissolving. The administrative stay means the injunction remains in effect until they quite possibly decide whether to issue a stay.


Steve Vladeck Exactly right, Leah. I would just add one more thing that I should have said, which is this same panel. Is also hearing oral argument on what we might call the merits, appeal. Merits. Right. That is to say, was the preliminary injunction properly entered in the first place on April 3rd? Right. Which is not that long from now. So, you know, I don’t know if we’re going to hear from the panel on the stay pending appeal before April 3rd. We might we might not. But the relevant point for now is that after that crazy chaotic 30 hours, we’re back to SB before being blocked. And it’s going to take I see no universe in which this panel unblocks it. So it would take Texas either seek an en banc review from the full fifth circuit, which I think is not impossible, but a long shot or going to Texas, going to the court. Right, for SB four to go back into effect anytime soon.


Leah Litman And as all of that summary makes clear, there’s a lot of procedural morass kind of happening here. And as Justice Sotomayor’s dissent in this case noted, procedure can be just as consequential as substance. And so we wanted to help unpack what is going on and the different moving parts. So one is the fact that we’ve now jokingly alluded to a few times, which is that the Fifth Circuit issued an administrative stay about Judge Ezra’s injunction and the that is what had, at least for some periods, allowed Texas SB four to go into effect. And that fact that it was an administrative state played a key part in Justice Barrett’s writing, which was joined by Justice Kavanaugh. Not to disturb the Fifth Circuit’s action. So, Steve, what is an administrative stay? Or at least what is it supposed to be? And why was it potentially concerning that both Justice Barrett and Justice Kavanaugh said they were not inclined, at least at this point, to allow the Supreme Court to review an administrative stay at all.


Steve Vladeck So, I mean, first, we should give a shout out to Rachel Day. Who is at UVA and who has a great article on administrative days, I think just about the the canonical academic discussion of them. So administrative stays are basically sort of an invention of appellate courts. There’s no statute that creates them. There’s no statute that discusses them, unlike status pending appeal, which are specifically provided for in 28 U.S.C. 2101. And the idea basically, as you guys know, is it’s a stay pending a stay. Right. That if a party is seeking a stay pending appeal, that is to say, to freeze the lower court decision for the duration of the appeal. We might want a couple of days to decide whether to issue that stay. And so it’s like a matryoshka doll of states. Justice Barrett says, I think guys, quite correctly, that the whole point of an administrative stay is just to, by the appeals court a little bit of time, no more time than necessary, in her words, to hash out whether to issue a stay pending appeal. And I think part of what this case exposes is that there are some lower courts, including the Fifth Circuit, that have not approach administrative days that way. So here in this case, the Fifth Circuit administrative stay was issued by the motions panel, the the panel that was chosen just to decide Texas history application. And then they kicked it to a merits panel that has the effect of turning an administrative stay into at least a short term stay pending appeal. And that’s part of what I think Justice Kagan and Justice Sotomayor, in their dissent, were objecting to.


Leah Litman Yeah. So just to kind of like make that clear, you know, the Fifth Circuit, because they initially issued that administrative stay, that deferred consideration of the stay until the merits panel, you know, to the panel considering whether to uphold the objection and the merits briefing is still under way. That would have pause the injunction and allow the law to go into effect for at least a month, if not more. That’s not really an administrative stay, right? Designed to last until after argument, allowing the policy to go into effect for that time and potentially for who long. Right. That is a stay. And this is not the only case where something like that has happened. You know, Justice Sotomayor in a footnote, rattled off a litany of examples where the Fifth Circuit has issued administrative stays that lasts for weeks, if not months. And it’s just not clear, again, particularly in this case, where it’s obvious that the law is preempted under governing law. You don’t need that much time to resolve the motion, maybe on the ultimate merits review, and maybe the Supreme Court will change the law. But at this stage, there’s just nothing to really do here. And so the fact that the Fifth Circuit is using this process to effectively grant states, and then Justice Barrett suggests it’s an on reviewable process because the stay is captioned as an administrative stay, potentially allows the Fifth Circuit to just do all this stuff, insulating its practices from review. And I think that that was part of the concerning aspect of her writing.


Kate Shaw It’s got this strange, like Janis two face quality to it, which is it sort of suggests that we can’t intervene here because this is an administrative stay. And so there’s this formalism. It’s captioned that way and thus. This is, you know, it’s not appropriate for us to intervene here. And yet there is a kind of acknowledgment of like functionally, how the Fifth Circuit, just as you described earlier, is really using these. And then this kind of veiled, I don’t know, we’ve been talking a lot this last week about pressure, you know, like shading into coercion when we’re talking about government actors and their communications. I don’t know which exactly Barrett was engaged in was saying, yeah, or moderate, maybe, but she’s saying to the Fifth Circuit, like pick up the pace. And it does appear to have worked, at least in the very short term, which is not, I don’t think, to absolve the opinion from its many egregious errors. And I do think we should talk about those. But Steve, you look like.


Steve Vladeck You know, mean. So I would just say two things, right? So the first is, I think we should take a half a step back and point out why the administrative step? I mean, Leah basically said this, but I want to sort of say it one more time. This case, unlike any case, unlike most cases, involved a pre enforcement challenge to a state law. And in that unique context, the administrative stay has the effect of taking a state law that had never been in effect and putting it into effect. And that’s not the typical case. I mean, even the examples Justice Sotomayor’s, clerk stayed up until four in the morning to find right in that in footnote two of her dissent. Those aren’t these. Right? The case that actually really resembles this is SB eight, where it was an administrative state from the Fifth Circuit block, and you have further proceedings in the district court that because the Supreme Court didn’t intervene, allowed SB to go into effect. And it’s funny that Justice Barrett didn’t remember that.


Leah Litman It’s weird because it’s literally in the question presented for the SBA case for Women’s Health versus Jackson about the administrative stay. And yet that seems to have slipped her mind.


Steve Vladeck The other question I have, and this is I’m really interested in the question of whether Justice Barrett knew who the Fifth Circuit panel was. Was it fortuitous that her not so coercive message about moving quickly was heated so quick? Like, you know, if the panel had been I mean, just to choose a couple of judges at random, you know, Joe Duncan and all them, I don’t think they would have, you know, moved very quickly as opposed to a panel that had Chief Judge Richman and Judge Ramirez on it. And so I guess I wrote about this in my in my newsletter on Thursday. I mean, I really think that the Barrett opinion is worried about the right problem, which is that she doesn’t want to open the floodgates for the Supreme Court gutting all kinds of emergency applications, all administrative stays. But as both Justice Sotomayor and Justice Kagan say in their dissent, what the Court of Appeals calls the stay ought not to matter, right? The question should be, what effect does the state have? And that’s why I think it’s the context of a pre enforcement challenge, where the administrative state we’re not talking about, like grand jury testimony that’s being paused for two weeks. We’re talking about a law that was never in effect that now gets to go into effect.


Kate Shaw And that’s what I found so galling about this kind of sort of rumination on what is the meaning of status quo in the context of state requests. And there’s this, she said.


Leah Litman Just to explain, explain that for a second, because Justice Barrett and larger case law and administrative stay is suggests a goal of the administrative state should be to maintain the status quo. Sorry, I just wanted to say that.


Kate Shaw No thank you. Yeah. That’s right. And then so she notes that and then just sort of poses this series of rhetorical questions, which literally I’m quoting from her, a footnote in her opinion here. The status quo in this case is not self-evident, is it? The day before Texas enacted as before, the day before the lawsuit was filed, the day Texas’s appeal and stay motion was docketed in the Fifth Circuit? So she poses those three questions, and the footnote ends there. So she doesn’t even have the decency to to try to answer the questions.


Steve Vladeck Because the best thing about that is the answer is the same at all three of those dates.


Kate Shaw And all of them are before this clearly facially unconstitutional law was ever in effect. And yet, I’m not sure what the purpose of that exercise, which feels fine for a law review footnote to my mind, but not fine in an opinion or even a concurrence in the Supreme Court, I, I.


Leah Litman I’d like to intervene here because I think it is part of a broader pattern in her jurisprudence as well as this courts more broadly. And Steve was alluding to this when he suggested she was asking the right questions. It is this impulse to always draw false equivalencies. So you remember, in some cases involving the shadow docket, you know, the Republican justices will ask the lawyers for the Biden administration. Well, of course, if this case had come out the other way, you would have gone here on the shadow docket. But the point is that seeking some emergency relief from a wily, lawless, unlawful lower court decision is not the same as seeking to pause and seeking emergency relief, called an administrative state or otherwise, from a decision that obviously correctly applied the governing law to prevent a lot of obviously preempted from going into effect. And so her noting that like, oh, well, the court issued an administrative stay in June medical. Well, yeah. No shit. Because if the Law and June Medical had gone into effect, abortion providers would have closed so that even if the court would have ultimately invalidated the law, you don’t know whether it would have reopened. And again, they do this all the time and it is so irritating. It’s like if Sam Alito issues an administrative stay on all medication abortions throughout the United States, and then the full court, like, were to grant some relief from that, or, I don’t know, like some random Fifth Circuit judge did the same, right. The Supreme Court intervening on the shadow docket would not be a problem. And it’s like they refuse to grapple with this and acknowledge the lawlessness about what is going on. And to my mind, it just further emboldens a lawlessness.


Steve Vladeck This is why I’m so interested in the question of whether she knew who the panel was, because if she had reason, if Justice Barrett had reason to believe that exactly what happened, you know, five and then eight hours after the decision came down, what’s going to happen then? I think it hits a little different, and maybe not quite as, exasperatingly and elliptically, this is what’s weird about the opinion is that it has two basic themes, right? Theme number one being, hey, lower courts stop abusing administrative stays. But theme number two being we’re not going to actually push back against the abuse of the administrative state in this specific case. Yeah. And and and those are only consistent in a world in which one she expected what happened in the Fifth Circuit to happen. And two, the court is going to, in future cases, slap down improperly described administrative stays. I think part of the issue is like when I said she’s asking the right question, the fight over what is the status quo in emergency applications is a real fight. The problem is, is that the one place where it’s actually not meaningfully disputed is this exact context.


Leah Litman Yes. Yes yes. No. So I think that’s right. The concurrence or whatever it is hits different. If she knew who the panel was. Still, however, I am concerned that the unwillingness by a majority of the court to slap down the Fifth Circuit beyond just doing like an occasional reversal, like it seems like we’re going to get and murthy allows this stuff to continue because a Fifth Circuit knows they’re never actually going to be deterred, and they’re never actually going to lose enough credibility before the court to stop pushing the boundary and flirting with lawlessness. It’s kind of yeah.


Steve Vladeck And that’s and that leads me to the only other question I have, which is where is the chief justice on this? Yeah. Right. Because just, just, you know, folks probably don’t have this committed to memory, but the majority in Arizona was 5 to 3. Justice Kagan was recused because she had been in she had been the SG, I think, when it was in the Ninth Circuit, and it was the chief who was the fifth vote with Kennedy and the other three Democratic appointees. First of all, it wouldn’t have shocked me if he actually had dissented here and just not publicly recorded it. I’m not surprised he didn’t join the Barrett Kavanaugh opinion, because I think he’d have lots of problems with it. I’m a little surprised he didn’t join Kagan’s dissent. Yeah, yeah, he dissented in the SBA case right at the drive in at both, at both stages. And so I’m surprised less likely, by Barrett and Kavanaugh sort of having this weird procedural fixation. I mean, I’m not surprised, of course, by Thomas, Alito and Gorsuch. But where’s Roberts defending his own vote in Arizona?


Kate Shaw Maybe he also knew who the panel the circuit was, and so knew that it was sort of a I don’t need to stake out our position here.


Steve Vladeck I mean, you guys look at how different I mean, right? I don’t know about you guys like my my just personal reaction to what the court did on Tuesday was so different late Tuesday night after the Fifth Circuit had frozen out before then. Beforehand. Yeah. Because. Right. It just it looked like a sort of a problematic ruling, but not a crazy one today versus what it felt like. And, you know, those first eight hours.


Kate Shaw You mentioned the Kagan dissent, which just take a beat, I think, on on the Sotomayor dissent as well. They are both quite displeased with what the court does, but tonally just about as far apart as conceivably possible. Right. Sotomayor withholds respectfully, she just says, I dissent. She refers repeatedly to the chaos that will be sown by the court. And Kagan is, I think, pretty clearly trying to distance herself from that rhetoric. And I actually thought you saw that, you know, kind of repeated in some of the oral argument dynamic during the week that we’ll talk about later in the episode. But it’s an interesting study in contrast tonally, but they’re both obviously really, really unhappy with what the court has done.


Steve Vladeck I chalk that up to Justice Kagan firmly believing that one or both of Barrett and Kavanaugh are still in play on the merits in the S.B. four case, and not wanting to risk potentially alienating them. And I’ll just say, I think that that’s probably right. In the sense that, like, I don’t, you know, as problematic because I think Barrett’s concurrence is I don’t think it is a clear indication that, you know, those two justices are going to side with Texas. On the question when the time comes. Right. So, so again, it’s it’s this tricky problem of how. Procedure masks substance in ways that are both complicated and exasperating. Especially when the procedure doesn’t actually make sense.


Leah Litman So, you’ve alluded to the fact that it’s possible that Justice Barrett and Justice Kavanaugh might ultimately vote against Texas if this issue made its way to the court, and also to the fact that the Fifth Circuit, you know, that already heard the arguments via zoom on whether to issue the stay pending appeal, seems inclined to keep the law blocked for the time being. And so we just wanted to quickly touch on that argument. I had thought about saving some of this rant for when the Supreme Court, you know, might hear this case. Just a few points about the B.S. that Texas is peddling. And at least one court of Appeals judge is going to buy. So when we say like this law is obviously preempted, and obviously the Supreme Court’s decision in Arizona resolves this. You know, Texas during the argument kept saying, oh, we did our best to make sure we were hewing to federal immigration law in the Supreme Court’s framework in Arizona. Oh, really? You know, because the theory that Texas pressed in this case and some courts have adopted is that the federal government has so abandoned its enforcement of immigration law. Texas now has a right of self-defense. And the Texas solicitor general essentially opened the argument with that claim. Also, Paxton’s top deputy told Texas Senators in 2022 what we asked you guys to consider laws that might enable us to go and challenge that ruling again, that ruling being Arizona. Also, on the very same day of the argument, Governor Abbott said SB four was consistent with the dissent in Arizona. This is an actual clip. Here is the recording.


Clip The arguments that will be made and that is that will the Texas law contradicts the Arizona decision that was issued by the United States Supreme Court back in 2012, and it should be overturned. We found ways to try to craft that law to be consistent with the dissent that was wrote in that Arizona case, by Justice Scalia.


Leah Litman You know, and the other is that, like this law goes further than the law in Arizona in actually authorizing state officers to remove people. Removal is not some long standing state power. And during the argument, Texas was like, well, I don’t know. You’re on Earth. How is it possible that the United States has standing or cause of action to sue? They’re literally saying the federal government doesn’t have the authority to enforce federal immigration law. That is this argument. And the leading case in this area, the one they claim to be honoring, is Arizona versus United States, where the United States sued Arizona. It is bonkers. Like this goes way farther. It doesn’t just, you know, piggyback on federal immigration law. It makes some things a crime that aren’t crimes, you know, under federal law that, you know, aren’t even violations of federal immigration law. And it just, there’s just too much here. And I can’t handle this amount of B.S.. Just say we ask you to overrule Arizona. We’re trying to get to the Supreme Court.


Kate Shaw Yeah.


Steve Vladeck I mean, I agree with all that. I mean, just as you said something really quickly, Leah, that I just want to take pause for one bit on which is one of the things that is true under SB4 is there are a whole lot of folks in Texas who have, you know, who are not subject to arrest and removal under federal immigration law, but are under SB four because there are various federal sort of temporary statuses that are not covered under SB, like you could have entered the country without authorization and still be in a kind of protected status under federal law, and you’re still in violation of SB4. I mean, the notion that that is, you know, helping the federal government enforce federal federal, it’s just it is all nuts. I agree this would have felt I would say better. This would have felt more honest if from the beginning Texass litigation position had been we have two arguments, right? One is this invasion self-defense argument, which they’re going to lose on, but which they’re going to make anyway. And the other is that Arizona should be overruled. And we understand that we can’t win on the second argument in the district court or the Court of Appeals. Sure. That would have been so much more honest. And instead you have this, you know, complete doublespeak, when you can. And so I guess you know that to me, you know, for folks who don’t know the Fifth Circuit very well, I mean, Chief Judge Richman is not, you know, she’s not a centrist, right?


Leah Litman She was a possible Supreme Court nominee under the Bush administration, right? I mean, she understood the fucking assignment. She was like, incredulously reading passages from Arizona to the Texas Solicitor General.


Kate Shaw The egregious ness of the Texas law is part of the reason that I found Barrett’s, like, just kind of breezy tone, like, oh, there’s no real jurisprudence of administrative stays, but it’s not really a problem if you maintain the joint for time here. It’s like, what? What’s the big deal? No harm, no foul. What are the stakes? And it’s like, you can literally be lawfully residing in Texas under federal law. And all of a sudden you’re going to be subject to removal by state authorities pursuant to a clearly unconstitutional law. But no big deal like easy breezy, says Barrett. And I just like I don’t think the Fifth Circuit’s intervention should like, drain. You know, this kind of strength of our reaction to that, you know, although I grant it did the same with me. But I actually think it’s important to hold on to the ridge from Tuesday afternoon.


Steve Vladeck And I’ll just say that even. And if we even if Barrett knew who the panel was and reasonably anticipated what was going to happen. The larger problem is that she’s now basically saying that there’s a brief period of time during which appellate stays are going to be on, reviewable by the Supreme Court. Now, that might not this might not be that period of time. I mean, like this, we may end up I end up in a place where that brief period of time is measured in single digit numbers of days. But this is why it’s so important when Sotomayor says even allowing usb4 to go into effect for one day, right, is just is way too much harm. So this is why I think Barrett starts from the right principle and ends up in the wrong place. The issue should not be the duration of the stay. The issue should be if that’s the reason why, in the typical case, an administrative stay is not going to warrant emergency intervention is because a proper administrative stay in a typical case, but not this one, is not going to produce that much harm because of how short lived it is. And that’s the point that she missed, right? Which is that she is right in the abstract and wrong here. I’m actually now a little bit more worried about the next case, right where you have some kind of really crazy state law and, you know, even letting it go into effect for 2 or 3 days forces a whole host of businesses to shutter or, you know, folks to leave the state or something like that, where the courts like, oh, you know, it’s to the it’s a proper administrative state. Come back in five days.


Leah Litman It’s like, oh yeah, the Fifth Circuit needs time to consider whether women actually are citizens or not or whether Texas can, like, strip them of their citizenship. So just like, give them time.


Steve Vladeck That’s not a preposterous fear in this space. And so, you know, I guess some of this will depend on what happens. Like, do the courts of appeals take the Barrett opinion and start creating clearer sort of rules, or at least norms for administrative days that that mitigate that concern? Maybe. But like all I mean, maybe it’s the best I’ve got.


Leah Litman Yeah.


Kate Shaw So let’s leave that SB4 conversation there. I am sure we will return to the topic. But Steve, while we have you, we also want to get your quick take on recent developments regarding judge shopping. So as of our last episode, the Judicial Conference, which is the policymaking body for the federal judiciary, had announced that it was adopting a policy to minimize the practice of judge shopping, but it hadn’t yet released the text of that policy. So it has now released that text, and it is as the announcement described, it says that cases should be assigned on a district basis, not a division basis, which should mean that if you file in Amarillo, Texas, your case will be assigned to any judge in the district, not necessarily the lone judge who sits in Amarillo, Texas. So on the face of it, that initial policy actually looked really encouraging. And as we said in the last episode, directly responsive to the sort of, you know, fist pounding that one Steve Vladeck has been doing now for several years. And yet there have been some subsequent developments. So maybe let’s talk about those developments. And then, Steve, we want to ask just how much teeth this policy really has.


Leah Litman Yeah. So some Republicans started throwing a temper tantrum. So Mitch McConnell wasn’t a fan because he stole those court seats fair and square and filled them with lunes. So as Nate Raymond at Reuters reported, McConnell and other Republican senators sent a letter on Thursday to chief district court judges arguing that a statute gave local courts sole discretion to decide how cases are assigned, allowing them not to follow the policy. And following that letter, the judicial conference said around a memo agreeing that their policy doesn’t eliminate the discretion possessed by the chief judge in each district. So, Steve, is the policy has written, what you’ve been advocating. Does it address the Matthew Kaczmarek problem? And in light of the memo, some of the reactions, like will the policy actually have an impact in the districts where it’s most needed?


Steve Vladeck So, there’s a lot there. Let me do the quick version. The policy will not produce immediately the impact that I think is needed for the reasons that I think you’ve just articulated, it was never going to the Judicial Conference court ordered lower court judges to do anything, despite what certain right wing law professors might think. I think the real point here, guys, is not that the judicial conference policy is by itself this, you know, game changer. I think the point is that’s an inflection point. Yes. Because having someone like Chief Judge Sutton come out and so publicly criticize this practice, having the judicial conference, which, you know, 15 of the 26 current members of the conference are Republican appointees, having them all endorse, you know, even a non-binding opposition to that kind of docket manipulation. I think what it means is that the writing’s on the wall. And we’ve already seen this a bit even before this was formalized. You know, there’s already quietly been reassignments, the Western District of Louisiana, for example, which is where the murthy versus Missouri case came from, no longer has any single judge divisions. Even though that’s how murthy was filed in the Monroe Division of the Western District. You know, there’s a judge in Galveston, Judge Jeff Brown, who has changed his own local rule, said even though he hears 100% of cases filed in Galveston, plaintiffs have an affirmative obligation to convince him that Galveston is a proper forum for their lawsuit. So, you know. I think it’s the point is not that the judicial policy is going to flick an on off switch. The point is that it’s I think it’s going to really move the conversation ahead in the right direction, to the point where there are really only going to be a couple of very visible outliers left. And the more visible that those outliers are, the more that I think there will be a more formal pushback, whether by the Advisory Committee on Civil Rules through an amendment to the federal civil procedure, or maybe, you know, not this Congress, but some future Congress, because I think the the key was just getting this into the public domain. And now that it has this kind of consensus behind it, I don’t think, you know, I don’t think, I mean, the fact that the defenses of it to this point have been so transparently, shamelessly Partizan, I think has actually only helped to prove the point of why this was an important conversation to be having in the first place.


Kate Shaw All right. Well, that was a good an optimistic take on on where things stand. So not an immediate sort of fix, but a really important step in the right direction. So we won’t leave things on that note. Thank you so much, Steve, as always, for joining us. It was great to have you.


Steve Vladeck Thanks, guys.


Kate Shaw And listeners, if you want to stay up to date in real time, subscribe to Steve’s terrific newsletter One First.


Leah Litman [AD]


Kate Shaw So now we’re going to switch to recaps. And first up is murthy versus Missouri which is a case in which states and some private individuals are trying to get the court to bar the federal government from engaging with social media companies in various ways. The gist of this case, according to the plaintiffs, is that the federal government effectively coerced although, as it turns out, really just encouraged social media companies to remove certain kinds of content from their platforms or to adopt certain kinds of content moderation policies. The plaintiffs say that all of this amounts to censorship and triggers the First Amendment, because the social media companies decisions to remove or moderate certain content were effectively the government’s decisions and thus governed by the Constitution.


Leah Litman So the federal government tried to focus the argument on how the plaintiffs did not have standing. That is, on how the plaintiffs were not injured by the government conduct they were challenging, because they couldn’t show that the social media companies decisions were traceable to the government, or that the plaintiffs were at risk of being censored, you know, because of some government action in the future. I did think that a majority of the court, including, you know, the Republican justices who are sympathetic to the government, seem more interested in evaluating the case on the merits and focusing on whether there was state action here. It’s possible some of this gets folded into a standing analysis, you know, part of a decision about whether the social media companies decisions are traceable to the government, but that that is like the linkage between the companies and the government seems to be where the action is.


Kate Shaw And mercifully, on that substantive question, it does seem as though a majority of the justices think these challengers did not have enough to substantiate their claim that the federal government was strong arming social media companies. And part of that came out in the justices seeming skepticism of the theories the challengers were pressing, in a way I think is captured well in this exchange with Justice Barrett. So let’s play that here.


Clip Just plain vanilla encouragement. Or does it have to be some kind of like significant encouragement because encouragement would sweep in an awful lot?


Clip I think that’s right, Your Honor. And so let me give you two answers to that. The top line answers, I mean, I’m, First Amendment purist. And so I would say even mild encouragement, but we don’t need that to win in this case because we are so far afield from whatever that that threshold is. So if you want to say substantial encouragement, like the Fifth Circuit said and like Blum said, absolutely. That’s a standard that works.


Leah Litman So the idea that the federal government cannot even mildly encourage social media companies, or any publisher or author or company to do anything is, to put it mildly, bananas. It would make it unconstitutional for some federal employee to send a note to Mark Zuckerberg along the lines of like, please, sir, it would be really great if you would remove deepfakes about polling stations from your website, but you don’t have to. We’re just asking nicely. Like that would be unconstitutional.


Kate Shaw Yeah. And, you know, the implications of that theory are pretty insane. As I think that hypo makes clear and as was made clear by Brian Fletcher, the deputy Solicitor general who has always did a great job, and several of the justices actually brought this out as well. So here, let’s play a clip from Fletcher.


Clip I think it’s really troubling, the idea that those sorts of classic bully pulpit exhortations, public statements urging actors to behave in different ways might be deemed to violate the First Amendment. And I think if the injunction were to go into effect and the president or his senior advisers and the president isn’t enjoined, but if his senior advisers, the press secretary or someone else wanted to talk to the public about other problems like the circulation of anti-Semitic or Islamophobic content on the social media platforms, or the effects they might be having on children’s mental health or national security issues, like the anti-Semitic Osama bin laden letter that was trending on TikTok at the end of last year that we referenced towards the end of our brief. I think all of those things could be done only under the shadow of the injunction.


Kate Shaw And now, Justice Kagan making a similar point.


Clip I guess what I’m just trying to suggest is that there are all kinds of things that can appear on these platforms that do all kinds of different harms and, and the inability of government that you’re suggesting to, to reach out to these platforms and say, we want to give you information that you might not know about on this, and we want to give you our perspective on what harms that this is doing. And, and, you know, we want to be able to answer questions that you have, because we really do think that, it would be a good thing if you, on your own, chose to take this speech down.


Leah Litman And here is the closer herself, justice Jackson, with a question that the Chief Justice came back to because the challenger’s answer to it was so wild.


Clip No. My hypothetical is there is an emergency. My hypothetical is that there is an emergency. And I guess I’m asking you, in that circumstance, can the government call the platforms and say this information that you are putting up on your platform is creating a serious public health emergency. We are encouraging you to take it down.


Clip But if you know whether you, as I said earlier, would, regardless of the label that you apply, whether it’s coercion, whether it’s, encouragement or joint participation and conspiracy, at the end of the day, if what the government is trying to do is to eliminate viewpoints from public discourse.


Clip Again, under my colleague’s hypothetical, it was not necessarily eliminate viewpoints, it was to eliminate instructions, let’s say, about how to engage in some game that is seriously harming, children around the around the country. And they say, we encourage you to stop that. I mean, is it that violates the Constitution?


Leah Litman So again, the upshot seems to be that a majority of the justices seem unwilling to adopt the completely unhinged theory that the plaintiffs are pushing and are unwilling to go ahead with the latest B.S. out of the Fifth Circuit, which amounts to the utterly nihilistic claim that government actors cannot even mildly encourage platforms to take down misinformation or posts that endanger public health, national security, election integrity and more like even asking would be illegal is their theory. And it doesn’t seem like a majority of the justices are okay with that.


Kate Shaw It doesn’t. And it also doesn’t seem as though a majority of the justices are okay with the factual basis of the challenger’s case and claims. And so, as we noted in the preview, the case was premised on this idea that the government was out there strong arming social media companies into taking down content, often conspiratorial content. But put that to one side from conservatives and that it was engaging in basically censorship of conservatives. But when you push on the actual facts the plaintiffs had, that’s actually not supported by the record. And Justice Sotomayor introduced the problem this way.


Clip I have such a problem with with your brief counselor, you omit information that changes the context of some of your claims. You attribute things to people who it didn’t happen to, at least in one of the defendants. It was her brother that something happened to, not her. I don’t know what to make of all this, because you’re you have a I’m not sure how we get to prove direct injury in any way.


Leah Litman If she ever said that about anything I’ve written, I would throw myself into the sea. I would take the quickest flight to whatever coast is available and just march myself into the ocean.


Kate Shaw My blood ran cold in my veins as I listened. It was wild. Yeah.


Leah Litman Just liquefied. And you know, we discussed when we did the preview that we were not confident in, you know, this court’s or the lower court’s ability to kind of actually look at the record and not to selectively parse it. But I’m not sure even I understood, like, how bad and wild the lower court’s misrepresentation of the record was. So while Melissa isn’t here, we wanted to give a shout out to one of her colleagues at the law school without a campus NYU. So NYU law, Professor Ryan Goodman, together with Justin Hendricks, did a fabulous post at Just Security that showed how the court’s below. That is the handpicked judge for this case, a Trump nominee and the Fifth Circuit. And this will be shocking. I know they completely distorted the record in order to further their conservative grievance narrative. So just an example. The district court quoted an email exchange between two federal employees about how, in the district court’s words, the employee said there needed to be, quote, a quick and devastating takedown and quote of the content. The problem is that the district court omitted the word published. So what the employees actually said was there had to be a quick and devastating published takedown of the content, i.e. they weren’t talking about taking down content, but publishing additional content to respond and rebut two other content.


Kate Shaw Minor. Minor. Difference.


Leah Litman Minor.


Kate Shaw Just tiny.


Leah Litman Yeah, yeah yeah. He just administratively stayed that word published, but it was there in spirit.


Kate Shaw Exactly. So that was one, I think very telling example. Another one was that the district court said the plaintiffs had identified 920,000 tweets that were political speech by American citizens, that the FBI pushed platforms to remove. The court failed to mention that the tweets were sent by accounts controlled by wait for it, the Russian Internet Research Agency. All 929,000 of them, I think.


Leah Litman Kate, you’re not going to understand this reference. I’m going to make it anyways.


Kate Shaw Oh, I’m so sorry. Can we just, like, dial Melissa in just for this moment because I’m going to be so useless.


Leah Litman But this is basically the district judge and the Fifth Circuit in this case, saying that people tell them all the time that they look like Megan Fox. If you watch Love Is Blind, you got that reference. And it was amazing. Kate is just giving me a blank stare.


Kate Shaw I do know who Megan Fox is, but that’s all I got.


Leah Litman Oh, wow.


Kate Shaw Oh, I mean, only barely. She’s very pretty. That’s all. That’s all I have.


Leah Litman *laughs*


Kate Shaw All right, well, I’m sure that landed with our listeners much better than I did with me. So. Okay, so, Ryan, as always, Ryan Goodman, Melissa’s colleague, has receipts. And it’s a pretty long list of just, like, pretty clear misrepresentations of what the factual record actually shows.


Leah Litman Yeah. And so Mike Mazanec at Techdirt did a similar post debunking more, you know, other factual claims that appear in the lower court’s decisions. But you know who? This wasn’t going to stop Samuel Alito, as we predicted, Sam Alito heard the accusations of discrimination against Republicans with fringe views. And that is his bat signal. It’s moment. It’s moment started when a. Leto said that he had read the officials emails to tech companies and he was shocked, shocked about their angry tone. So that’s the person with probably like, the angriest tone on the Supreme Court right now. But here was his first intervention, and it only began from there.


Clip Mr. Fletcher, when I read all of the emails, exchanged between the white House and other federal officials on Facebook in particular, but also some of the other platforms. And I see that, the white House and federal officials are repeatedly saying that Facebook, and the federal government should be partners. We’re on the same team. Officials are demanding answers. I want an answer. I want it right away. When they’re unhappy, they they curse them out. There are regular meetings. There is constant pestering of, Facebook and some of the other platforms, and they want to have regular meetings, and they suggest why you, they suggest rules that should be applied. And why don’t you tell us everything that you’re going to do so we can help you and we can look it over. And I thought, well, I cannot imagine federal officials taking that approach to the, the, the print media I represented. It’s over there. If you if you did that to to them, what do you think the reaction would be. And so I thought, you know, the only reason why this is taking place is because the federal government has got section 230 and antitrust in its pocket, and it’s, I to mix my metaphors and it’s got these big clubs available for, available to it. And so it’s treating, Facebook and these other platforms like their subordinates. It would you do that to the, to the New York Times or the Wall Street Journal or the Associated Press or any other big newspaper or wire service?


Leah Litman Sam Alito might allow Texas to force women to bleed out and become septic and parking lots, but he will not stand for constant pestering of big social media companies.


Kate Shaw No, his values are in the right place now. This, this this is the real injustice. And and I have to say that part of, I think our optimism about the outcome of this case stems from the fact that Alito really seemed to be way out on his own limb here, like we already played the clips of Justice Barrett and Chief Justice Roberts being skeptical of the challenger’s claims. Not that surprising, since they actually voted to stay the Fifth Circuit’s injunction against the federal government in this case. But importantly, it was not just the two of them. So Justice Kavanaugh was also deeply skeptical of the idea that there is a First Amendment problem. Whenever government officials ask the press, even maybe in ways that offend Sam Alito’s delicate sensibilities, to take down content or not to publish certain content, and he was clearly and explicitly drawing on his own experiences as white House staff secretary. Basically, when he said that government officials call up journalists to scold them all the time. And that’s obviously not a First Amendment violation. And he definitely knows where of he speaks, because folks who don’t know this, he was like, actually kind of famous in government for calling up and haranguing members of the press, in particular when he was a member of Ken Starr’s team. Anyway, let’s play that clip here.


Clip You think, on the anger point? I guess, I’d assumed, thought, experienced, government press, people throughout the federal government who regularly call up, the media and, and berate them. So, I mean, is I not I don’t understanding you said the anger here was unusual. I guess I wasn’t, so I wasn’t entirely clear on that from my own experience.


Clip And that’s where I guess I don’t want to endorse berate, but I guess I will say, I bet this is not the first time that there’s been profanity or intemperate language in exchanges between white House or agency communication staff and members of the press.


Leah Litman So Coach Kavanaugh’s intervention led to, I think, the most Peak-lito moment of the argument, which we’ll treat you to before we dissect it ourselves. So here comes Sam.


Clip Well, I don’t know whether our public information officer is here today, but may maybe she should take a note about this. So whenever, whenever they read something that we don’t like, she can call them up and curse them out and, say, why don’t you, you know, why don’t we be partners? We’re on the same team. Why don’t you show us what you’re going to write beforehand? We’ll edit it for you. Make sure it’s accurate.


Leah Litman Yes, listeners, this is Sam Alito saying that if government officials get to berate the press, just you wait for what he has in store for the awful press, maybe courtesy of the Supreme Court’s public information office, I would like to take this moment to encourage him that if he ever has a note on strict scrutiny coverage, you know where to find us. But again, this this moment gives us a nice occasion to pause over the irony of Sam Alito, of all people, believing there is a constitutional problem when government officials say things that are critical about others speech because he has literally made it his part time job to deliver angry rants and screeds about press coverage he doesn’t like. He had a Wall Street Journal op ed about a ProPublica story he didn’t care for, the title of which was ProPublica Misleads Its Readers. He gave an interview to the Journal in which he, you know, lambasted the nonsense that has been written about him. He called Adam Sir’s Atlantic piece about the SBA ruling false and inflammatory. He blasted the media and Steve Vladeck for using the term shadow docket. Like more and more, he is a government official who is in a position to set the rules affecting all of our lives, and he can’t stop himself from lashing out at public criticism.


Kate Shaw No, he’s the person who evaluates the constitutionality of of government officials. He himself is not, in fact, a government official like that. This is like they think they stand outside of politics and the political process and even government, I think and.


Leah Litman He is above the law. He is the law.


Kate Shaw Yeah, he is the law. He is not subject to the law. And that’s all of everything you just referenced is entirely irrelevant.


Leah Litman Right. I’m sure I will hear a note from him lambasting, you know, the silly nonsense and annoying criticism right on the airwaves.


Kate Shaw Yeah, but look, I for one, I’m here for it. If Justice Alito decides that he is going to be newly emboldened to reach out directly to us and give us show notes, because he now understands that a government official like that, that’s something that happens all the time, like I’m here for it.


Leah Litman So just two other short notes on the argument. So some justices fixated on what would happen if the platforms in the federal government decided they were in this together and on a team, which isn’t what happened here, but could present a different case. There was also a clip I wanted to highlight because it relates to a dynamic we anticipated in the case, which is the effort to portray the censored conspiracy theorists as the modern civil rights heroes. So let’s play a clip and explain it.


Clip Your honor, we don’t need coercion as a theory. That’s why we led with encouragement in our red brief. And I would point the court to what it said in Norwood, which is the court or the government cannot, induce, encourage and promote private actors to do directly what the government can’t itself do directly.


Leah Litman So what is the Norwood case he cited? That is literally a case where the Supreme Court invalidated a state’s effort to shut down its public schools and then fund segregated private schools instead of integrating. And this is the solicitor general of a state arguing on behalf of posters everywhere saying that’s basically this case.


Kate Shaw Yeah. So we had Pete Lehto earlier. And even though this was an advocate who was still the advocate channeling locally though. So I think yes, I think it’s I think it’s still belongs in that column. So to wrap up, it does seem as though the Supreme Court is likely to rule for the federal government, end the injunction that prohibited various parts of the government from engaging with social media companies about content moderation. And that is a, I think, very good result.




Kate Shaw So let’s move on to NRA versus Volo. Which is another case the court heard argument in last week. And that’s the case about whether state officials unconstitutionally forced companies to stop doing business with the NRA because of the NRA’s political positions on and advocacy of guns. And as we predicted, a majority of justices seem inclined to side with the NRA. And to say that at this stage of the case, which is the very earliest stage, the motion to dismiss the NRA had alleged a clearly established constitutional violation in the complaint. So a motion to dismiss happens after a plaintiff filed the complaint, and the rules are supposed to be. Well, if you take everything the plaintiff says as true, has the plaintiff alleged a clearly established constitutional violation? So we’re not assessing whether these claims are true, yet we are taking them as true.


Leah Litman And recall that the NRA included an allegation that a state government regulator essentially told an insurance company, I will look the other way on your insurance company’s legal violations if you stop doing business with the NRA, whose advocacy and views I don’t like. As Justice Kagan notes in a clip we’re about to play that allegation, describe something that seems to have crossed a line, and I didn’t detect really any justice disputing that. The real question in the case is whether the court is going to say the other allegations in the complaint, the other stuff the NRA said was unconstitutional were also illegal. So we’ll play a question from Justice Kagan along these lines.


Clip Shall I put the Lloyd’s meeting in a different category and was really more interested in and I think that this is a closer one. Just because if if reputational risk is a real thing and if gun companies or gun advocacy groups, impose that kind of reputational risk, isn’t it a bank regulator’s job to point that out?


Kate Shaw I think the concern in this case is that the Supreme Court might say that a bunch of evidence that usually isn’t sufficient to raise the prospect of a constitutional violation, like the fact that New York state officials entered into consent decrees with insurers and the NRA who were in violation of the law, is evidence of a constitutional violation. And if it does that, it could seriously limit the government’s ability to both enforce the law and to try to persuade people to do certain things, including things like maybe not doing business with the NRA, sort of coercing them to do so. So there is a concern, I think, about tying the hands of government in its ability to do socially valuable and important things. And as Justice Kagan pointed out, some of the government statements at the NRA points to here actually don’t seem to be anything more than the government just pointing out that, you know, guns are dangerous. Doing business with guns might increase reputational risk. So let’s play a clip here.


Clip So how do we know? I mean, I take a there’s obviously a lot about guns in that letter, but it might be that, gun advocacy groups, gun companies do impose reputational risks of the kind that bank regulators are concerned about. So, where do you how do you how do we know?


Leah Litman And I just wanted to underscore something that you said, which is, you know, the NRA is saying evidence of a constitutional violation is the fact that the NRA and these insurance companies entered consent decrees with New York regulators. But, right, those companies conceded they were in violation of the law. And in another case that the court heard this week, that we’re not going to go in depth on Gonzalez versus Trevino. In that context, you cannot ordinarily make out a First Amendment claim for retaliatory arrest. If the officers had probable cause to believe you were in violation of the law here, right. These companies conceded Lee, violated the law. So the fact that, you know, they had enforcement proceedings against them ordinarily would foreclose it, constitutional claim, not provide the basis for it. But again, like that’s part of the danger of this case is that the court might again take that one allegation and then let the rest of them in as well. And so, as Kate just noted, you know, there are concerns about overly restraining the government. Sam Alito, by contrast, was concerned that the court wouldn’t restrain the government enough and wouldn’t prevent governments from trying to discourage people from working with the NRA and wouldn’t prevent the government from maybe enforcing the law against the NRA at all. So here’s that clip.


Clip Yeah. So they they gilded the lily or whatever the phrases. I mean, they were ham handed about this. The people up in New York, our rubes, they don’t really understand how to do this. If you do it in a more sophisticated manner, you can achieve what you want to achieve.


Kate Shaw And Neal Katyal, who was arguing for the state regulators, tried to suggest that the kinds of things the NRA alleged here could be alleged by just about anyone, that they could always be used to thwart enforcement proceedings.


Clip And the worry here, it’s not just about this case. It’s about any case because everyone can allege, well, you know, can stop a plea negotiation or consent set in negotiations by saying you’re retaliating against me. I mean, you know, if you just think about what Dinesh D’Souza said publicly in his filings or Michael Avenatti about the president, being retaliated against because of me, because of my speech. And that’s the danger. And that’s why there’s always been an objective, unreasonable standard. And Mr. Cole says in his brief at. Page 23 in his reply brief. Oh don’t worry, the NRA will never do this. We’ve only filed one suit on Bantam Books before in our history, and it’s this one that’s wrong and five minutes of re internet research. We found another case in which the NRA sued San Francisco on exactly that theory. And if you look at his amicus briefs, at least ten of them admit they want to do this, to open up lawsuits for when chick fil A isn’t being righteous.


Leah Litman And there might be a way in which that’s true with respect to the government press statements, but it doesn’t seem like it’s true for the meeting between the regulator and the insurance company. You know, the initial allegation we talked about at the initial kind of recap and, you know, Neil Cottrell tried to analogize that meeting to the kinds of plea negotiations that happen where a prosecutor might say, I won’t prosecute you for this crime or I’ll knock down the penalties if you testify against your codefendant. But I think the difference there is that what’s being asked of the person and the reason they’re being asked to testify isn’t that the regulator opposes their political speech or advocacy. And so even that analogy I’m not sure will be enough. You know, we’ve mentioned a few times that this is a qualified immunity case. There was one very frustrating exchange in terms of qualified immunity I wanted to highlight. And that is here.


Clip Mr. Crutchfield, just to follow up on Justice Kavanaugh’s original question, it seems like that we’re all in agreement that the law here is clearly established under Bantam Books, and it’s just a matter of application. Is that right? So I certainly think the law is clearly established in terms of what I read to you at the Second Circuit, the standard, the Second Circuit. I think that’s clearly law. Okay. Yes.


Leah Litman So the reason why this is frustrating is because the idea that a general legal standard is clear has never been sufficient in, let’s say, the Fourth Amendment context in particular, where people try to sue police officers for using excessive force. Here the general standard is you can’t coerce private parties because you don’t like their speech. But in the context of the Fourth Amendment, the rule that you can’t use excessive force that’s never been thought to be clearly established with respect to any particular facts, to actually allow people to recover damages. And it’s just, again, predictable but very irritating. That will be sufficient here.


Kate Shaw And just to make that point really explicit. It’s enormously important at what level of generality the court sort of explains how the, you know, clearly established rate should be understood. And if just like a general understanding of a right, you know, against unreasonable searches and seizures were enough to allow you to pierce qualified immunity and proceed against a law enforcement officer in that 99.999% of cases in which the police officers violate constitutional rights. And you’re trying to establish that those were clearly established. And yet the NRA might be able to proceed here, invoking at a very high level of generality, the rights that it alleges are being violated would be dispiriting, to say the least. But I think it’s entirely possible that that happens. So this is a case where the outcome might be generally right, but it matters enormously, both for this case and more broadly, how exactly the court writes the opinion, citing to some degree with the NRA.


Leah Litman For sure, because it’s possible, like the court is going to give the NRA kind of like a free pass from two generally applicable legal principles that otherwise constrain other plaintiffs. Did you know, just want to play one additional clip of Sam Alito just being a gratuitous jerk to Neil Katyal, who was going to lose the case? So let’s just play the clip here.


Clip Right? You say in your brief, this case is not even close. You stand by that. I do, I do. Under the existing law. Yes. Thank you.


Leah Litman This is why he’s our favorite justice. Just so nasty. Like you’re going to win.


Kate Shaw Yeah, you’re.


Leah Litman You’re going to win. Tone it down.


Kate Shaw Yep, yep, yeah. No he can’t help himself.


Leah Litman Most gracious winner ever.


Kate Shaw Yeah.


Leah Litman Can I administratively stay Stam Alito?


Kate Shaw No. No. Sorry.


Leah Litman Oh. That’s too bad.


Kate Shaw Maybe if maybe if the court provides more specificity about the standards. I mean, maybe we’ll let you.


Leah Litman Perf. I’ll. I’ll wait.


Kate Shaw Okay. In the meantime, let’s break down the argument in Diaz versus United States, which is a case about the federal rules of evidence. And before we get to the case, I actually wanted to make one atmospherics point, which is, you know, not directly relevant to the case, but something that I noticed, which is that once the justices started invoking their personal experiences in the murthy case that we were just talking about, when they were like waxing nostalgic about haranguing the press, we played Kavanaugh doing that, but we actually didn’t play a clip of Justice Kagan basically doing the same thing, basically, because she also, you know, was a lawyer in the executive branch and, you know, suggested she might have some more than passing familiarity with the phenomenon of, you know, lawyers and policy makers calling up the press to say we’re unhappy with your op ed, or with the reported piece. So weirdly, that seems to have carried over, at least as I read it into the Diaz case, in which the justices seemed to be invoking their own personal experiences. And that was particularly true about Justice Gorsuch, who I think maybe felt a little left out by like Justice Kagan and Kavanaugh talking about their government. And thus, for whatever weird reason, was invoking his experiences in this evidence case. And then a couple of other justices did the same. So let’s play a couple of those clips here.


Clip So in my experience, you know, it’s not too hard to hire an expert witness in my experience. I mean, and the 10th Circuit, for example, we took as a reliable indication.


Clip So we have an expert who comes in and I and in my experience, this is also pretty standard.


Clip I certainly don’t have experience in trial.


Kate Shaw That was kind of weird. But here’s what the case is about. One of the federal Rules of evidence rule 7:04 says, quote, in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the Trier of fact alone.


Leah Litman And so, just to be clear, a mental state might be like, did the defendant intentionally or knowingly or purposefully do something? And that’s what the rule is saying. You can’t have an expert witness testify that the defendant had that mental state or not. So the question in this case is whether in a prosecution for drug trafficking, where an element of the offense is that the defendant knew they were carrying illegal drugs. Does that rule permit an expert witness for the government to testify that most people at the border with drugs know they’re carrying those drugs, in part because drug trafficking organizations generally don’t entrust large quantities of drugs to unknowing couriers.


Kate Shaw So here’s what happened in this case a trial the government called an agent to the stand who referenced their training and experience, and the agent then testified about how the drug trade works. The prosecution asked whether large quantities of drugs are entrusted to drivers that are unaware of those drugs. And to that question, the agent answered no. In extreme circumstances, actually, in most circumstances, the driver knows they are hired. It’s a business. They are hired to take the drugs from point A to point B. The witness then explained that drug trafficking organizations don’t generally hire individuals who don’t know they’re trafficking drugs, outside of three circumstances the agent described that are not the circumstances of this case.


Leah Litman So again, the question is whether this kind of testimony effectively stated an opinion about whether the defendant had a mental state that constitutes an element of the charged crime. The witness didn’t testify about the particular defendant’s mental state, but the issue is whether the testimony as such effectively did so.


Kate Shaw There was a notable amicus brief we wanted to mention, and it got a fair amount of airtime during the argument. And that was an amicus brief from some evidence law professors. So the brief argues that this case is about a category of evidence known as framework evidence. So evidence that bears on the likelihood of a fact being true based on the defendant’s membership in a particular group. So the signatories say, quote, fears at 704B, testimony might become the functional equivalent of telling the jury how to decide. The case should be addressed by explaining to the jury, in plain terms, the group nature of the expert’s testimony, and how it is independent from the jury’s factual determination, such that the jury is still left to assess the witnesses credibility and the applicability of the framework to the particular facts, but not by eliminating the evidence entirely. The evidence brief was on the side of the government right, seeking a ruling that would not always exclude testimony of the sort that was at issue here.


Leah Litman And the brief specifically tries to preserve, you know, this category of framework evidence. And it does so in part by highlighting how framework evidence sometimes can be favorable to the defense. So the brief notes that, you know, laypeople might have an intuition that people might flee because they’re guilty or that people might immediately report a sexual assault. But social science data about how groups tend to behave can counteract those impulses and then allow the jury to decide again whether that generalization is true with respect to a particular case or defendant. So Justice Jackson brought up the brief in this clip.


Clip Mr. Fisher, sometimes statements about knowledge are actually, defense important. You suggested that in this case, the defense put that evidence in sort of because they were living in the world that the court had already established. But, one of the things the evidence professors talk about is that if you exclude this kind of evidence, you could have a situation in which you have a battered, spouse who assaults, their, the person who is beating them, and they’re not going to be able to put on expert evidence that negates mens rea in that situation. What do you say about that? It seems to me this is not all net positive for defense.


Kate Shaw So it seems like a majority of the justices were inclined to agree with the government and the evidence professors in this case, to the point where this was a rare instance in which Justice Jackson and Justice Alito appeared to be in agreement. Alito also seemed to be drawing on personal experience, in this case, for him as his time as a prosecutor, where the government introduced evidence, including expert testimony from which juries could infer mens rea. That is, you know, the mental state and thought that a rule permitting such evidence short of an expert testifying, you know, something like I think this was or wasn’t the defendant’s mens rea here is clear.


Leah Litman And again, the agreement was so strong. At one point, Justice Kagan suggested she would yield her time to Justice Alito.


Clip I feel as though I should offer a bit of my time to Justice Alito to respond to being a chaos insider.


Clip And I’ll ask Mr. Garnier about that.


Clip What was my question? Here’s mine.


Kate Shaw This seemed clearly to echo or reference the Texas shadow docket exchange we were talking about with Steve Vladeck a little while ago. It remember, Sotomayor accuses Alito in that writing of being a chaos agent, and Kagan is more conciliatory in her dissent. And they basically sort of repeat that same dynamic here. So upshot seems like the court is going to say the evidence was permissible here. Which is not to say that Jeff Fisher, who argued for the other side of the case, did not do an excellent job because he did, and he always does. You know, there were a lot of really interesting cases this year. So here is another one we’re going to talk about, which is Gonzalez versus Trevino, which is a case about how plaintiffs can prove that they were arrested for their political views or their speech and make out a First Amendment claim, even when the officers may have had a probable cause to arrest them. So, briefly, the facts of this case involve a plaintiff who is a 72 year old, Sylvia Gonzalez, who was a prominent critic of the mayor of Castle Hills, Texas, who had just been elected to the city council and who says she was then arrested for something that nobody has ever been arrested for, which here was taking home a government document. In this instance, a petition in violation of state law. So the officer says, but there was probable cause to arrest you. And the question here is whether the plaintiff can make out a First Amendment claim. Anyway, even though there was probable cause to arrest them for some crime. And given the expanse of criminal law, there often will be probable cause to arrest someone for some crime. And the question is, how does that general principle interact with the fact that under a particular set of circumstances, someone may have been singled out for retaliation based on their views or speech?


Leah Litman Yes. Lisa Blatt argued the case for the officers, which means, of course, we have a clip to play. So here’s that.


Clip Justice Kagan’s asking you a hypothetical question. I’d be grateful if you’d answer it.


Clip Sure. The problem with this. Anything good to have it, enforcer? Yes. Because anytime you get carried away doing all this other stuff. And your question, I had to go. And it was a good one, because you’re a good advocate and my advocate is going to hire you or somebody like you who’s going to say, my evidence is really good. Look how these people were out to get me. I’m an unpopular figure. This is a small town. I didn’t like the road. You know, now you’re still fighting. Okay, I’m on your other hypo.


Clip You don’t need an enforcer.


Clip Any hypothetical. It is going to be. I was picked on.


Leah Litman Always entertaining.


Kate Shaw Was that. Was that. That’s sort of the kind of like apex Lisa Blatt exchange. I’m not sure it was up there.


Leah Litman Yeah. You know, it was definitely up there. So this case really turns on the meaning of a 2019 case, Neaves versus Bartlett, which held that in order to make out a retaliatory arrest claim, the plaintiffs must show that the officer did not have probable cause to arrest the plaintiff for any crime. But the court carved out an exception and said plaintiffs would not have to prove the lack of probable cause if they were arrested for conduct that, quote, otherwise. Similarly, situated individuals were not arrested for the so-called atypical arrest exception, and the meaning of that exception is really what this case is about.


Kate Shaw And I truly don’t have like a real read on how this case is going to go down. I did think that there were enough justices sympathetic, to Miss Gonzalez, that she had a real shot. Certainly Gorsuch and I think the Democratic appointees were there, but I’m just not sure if there’s a fifth voter who that vote would come from. So we’ll see. Okay. Reminder this is another big week at the Supreme Court. The medication abortion case will be argued this week. We now know who the advocates will be. So there are two advocates arguing on behalf of the FDA and Danco, the drug manufacturer. So, you know, in defense of mifepristone and its availability. That’s Jessica Ellsworth for Danco and Elizabeth Lager, the solicitor general for the federal government, both superb advocates. And so they’re familiar a name that may or may not be familiar to our listeners is who is going to be arguing on behalf of the anti-abortion doctors. And that is Erin Hawley, who represented the plaintiffs in the district court and in the Fifth Circuit and is a very experienced appellate litigator. I’m not sure if she’s done a Supreme Court argument before. I think this may be her first. If you’re looking to read up on Aaron Hawley, there’s a great profile in Politico, maybe about a month ago by Kathy Gilson in with a pretty epic title that came from one of her sources, which was, quote, Josh is a show pony, Aaron is a workhorse, and the Josh in the title is Josh Hawley, to whom Aaron Hawley is married. There’s a claim made in the piece that Josh Hawley is, you know, this big, showy, you know, United States senator who’s just declared for reelection. And Aaron has been working behind the scenes and increasingly in the public eye to restrict access to abortion for many, many years. And there’s a claim made in the article that actually, it is Aaron and not Joshua’s most moved law and policy in this country in that household. And anyway, it’s an interesting read, and it’ll be interesting to see that these three women advocates doing it out over the future of access to more of Preston, and whether these doctors have any right to be in court in the first place, which is, of course, an important threshold question in this case. The answer to my mind is clearly no, they do not. So there’s a real chance that the substantive question I’ve never pressed on access actually won’t be answered, because standing will sort of be the beginning and the end of the decision, but I’m sure that the argument will at least. Cover merits as well as standing.


Leah Litman So finally, some additional quick court culture. We got a few opinions and cases we’ve discussed that we wanted to know. One was in FBI versus Vic Ray. The Supreme Court, in a unanimous opinion by Justice Gorsuch, concluded that a challenge to the no fly list had not become moot. That is, the challenge to the no fly list could proceed after the government removed the person challenging the no fly list from the list. The court reached the decision, in part because the government didn’t really elaborate on why the challenger had been placed on the list in the first place, and therefore it wasn’t clear the challenger wouldn’t be put back on the list for doing pretty innocuous stuff. It’s a big deal for the government to lose. Nine nothing in a national security case, though. Obviously this is just an opinion about whether the claim can go forward.


Kate Shaw But a very important win.


Leah Litman Yes for sure.


Kate Shaw Yeah. Another big important win. Wilkinson versus Garland. The court, in a 6-3 decision by Justice Sotomayor, concluded that federal immigration law did not preclude federal courts from reviewing immigration officers determinations about whether an applicant’s removal would result in undue hardship to a spouse, parent, or child, which is a precondition for cancellation of removal. So big congrats to Jamie Santos on the win in her Scotus debut.


Leah Litman I wanted to highlight a concurrence in this case which just caught my eye given, you know, some discourse right now regarding the Supreme Court. So Justice Jackson, in a concurrence, said the courts were bound to respect and honor and take seriously Congress’s decisions to strip jurisdiction from the federal courts. And I just found that interesting, in part because of the ongoing debates and movement for jurisdiction stripping as Supreme Court reform and court form today. So, yeah.


Kate Shaw I just like it’s not just Justice Thomas dropping crumbs. Yes. You know, on areas that may in the future come before the court. I liked that in. So let’s wrap with some quick additional court culture. Which like the beginning of this episode, will take us back to the Fifth Circuit. And we’re talking about some arguments in a case involving Planned Parenthood Federation of America. So that was an argument in the case we’ve mentioned before on the show. It seeks hundreds of millions, maybe over $1 billion from Planned Parenthood under the False Claims Act. The backstory here is really complicated. But basically, the case arises from the fact that there were legal questions and litigation about whether Planned Parenthood was entitled to receive certain funding as part of its participation in Medicaid. And actually, by Planned Parenthood, I mean Planned Parenthood affiliates, which are what actually provides medical care in the States. When this issue was ultimately resolved against Planned Parenthood, plaintiffs sued and sought treble damages under a statute called the False Claims Act, which is for people who fraudulently cheat the federal government out of money. That’s what the statute is for, not for people engaged in litigation over whether the proper interpretation of a law makes certain funding available. The case initially involved both the funds that the Planned Parenthood affiliates received from the state, and also the litigation expenses that Planned Parenthood Federation of America incurred while litigating these questions. And the suit was filed before Judge Kaczmarek, and portions of it are now on appeal before the Fifth Circuit. So that’s what the oral argument was about.


Leah Litman So most of the argument was devoted to whether portions of Judge Kaczmarek’s ruling could be appealed at this point in the litigation. So Judge Kaczmarek denied Planned Parenthood’s motion for summary judgment in part. But because that decision is under seal, like we don’t really know what it said. And so the issue in this appeal is whether the theory that Planned Parenthood Federation of America is liable because its lawyers represented Planned Parenthood affiliate clients is barred by the attorney immunity because the allegations involve providing legal advice about Planned Parenthood’s continued participation in the Medicaid program.


Kate Shaw So basically, the issues on appeal are one, whether the attorney immunity claims are subject to immediate appeal and two, if they are, whether the complaint should be dismissed on attorney immunity grounds. Although there are actually other issues in the case that I think would go forward either way. But just as to this portion of the case, and okay, the oral argument, things got off to a rollicking start. As is always the case for repro freedom claims in the Fifth Circuit. So we want to play a little bit of audio from that argument. You will hear first from Antoinette Lynskey, who is a fantastic lawyer representing Planned Parenthood and then from Judge Barksdale on the Fifth Circuit.


Clip This appeal turns on Relator’s responding at superior theory that PPFA violated the false claim to act and state stated.


Clip So this appeal turns on whether you can even assert that you can even be in this court on this interlocutory appeal. That’s that’s a big, big issue in this court. And you’d be wise to really direct a lot of attention to that.


Leah Litman And oof, it continued from there.


Clip It’s not just a claim against the attorneys hired by people that were attorneys for these other affiliated, state laws, but other people for employees. Right. So it’s it is so, in a sense, procedurally disruptive. But listen, don’t interrupt me prior to this entire, case that. That there’s a real question of whether we can even hear this appeal.


Leah Litman I personally think we need a complete and total shutdown on the fifth circuit until we can figure out what is going on, because.


Kate Shaw Anton kept his cool. It was impressive.


Leah Litman Yes. No. Obviously a tip of the hat to him. And, you know, we’ll see what they do, but. Yeah. Wild ride.


Kate Shaw Yeah. And this could be, you know, like another slow motion disaster unfolding in the Fifth Circuit. And so who knows, maybe there’ll be some underdeveloped musings about administrative status that this case has yet to produce. So, yeah, to be continued. We don’t have time to say much about the developments in the various Trump cases. So because we’re short on time, but also because we’re missing Melissa Murray, our resident expert on and author of the number one times bestselling book about the Trump prosecutions. But I actually did want to note one potentially significant under the radar development, which is that David Lat, on his original jurisdiction newsletter, reported last week that Judge Cannon, who is the judge presiding over the Mar-A-Lago documents case, has recently had two law clerks quit. Although the timeline on when they quit is not at all clear. But this is really rare. It seems maybe important. And, you know, federal law clerks don’t typically quit in the middle of a term unless something pretty crazy is happening. I mean, one, you could imagine some personal circumstances, of course, but two departures really raise red flags. So we just wanted to note this, and also to say that law clerks, if you want to dish either departed law clerks, other law clerks in the district or in the 11th circuit, generally with info to share it, we would love to talk to you. DM us, email us at StrictScrutinyPodcast@gmail.com. Get in touch.


Leah Litman So as we discussed earlier this week, the Supreme Court will hear opening arguments over the right to access abortion pills. Anyone else think it’s pretty fucked that five out of the nine justices deciding the future of abortion freedom are not the kind of people who tend to use abortions. Support nationwide abortion freedom and show them where they can stick their gavels while you’re at it, so you can pick up any item from Crooked’s No Trespassing collection, and a portion of proceeds will go to Vote Save America. Fuck Bans: The Fight Back Fund, which currently supports abortion rights organizations across Arizona, Nevada and Florida. Head to Crooked.com/store to shop now.


Kate Shaw Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. And if you haven’t already, please 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.


Leah Litman But we’ve administratively stayed any negative reviews for the time being.


Kate Shaw Just temporarily. Just until we decide we feel like lifting the stay.