S1: This ad free podcast is part of your slate plus membership.
S2: And I just think the justices maybe like, got used to working those muscles and litigants saw how successful the Trump Justice Department was in getting the court to intercede in a lot of cases and said, Well, we should try it
S3: if the court moves in the direction that I imagine that we expect it to, which is to strike down the New York gun control law. It will dramatically reshape the landscape of Second Amendment rights. The court doesn’t have the authority to enforce its own decisions. The court gets its authority through people accepting the court as a legitimate institution and believing the court is engaged in law rather than politics, and if people no longer believe that they lose their power.
S1: Hi and welcome back to Amicus, this is Slate’s podcast about the law and the courts and the rule of law. I’m Dahlia Lithwick, I cover the courts and more at Slate magazine. And this episode of Amicus was recorded in partnership with the 2021 Texas Tribune Festival, a virtual experience from September 20th through the 25th that offered big thinking interviews and nuanced discussion on all the topics you care about most. You can learn more at Trib Fest dot org, and we’re going to be talking to some of my most favorite court watchers for a fast paced panel that will set you up to understand the Supreme Court term that is about to begin and the hugely consequential summer. We have just had. Now, later on in the show, Slate Plus members will hear our bonus segment with Mark Joseph Stern, where we unpack some of the issues we couldn’t quite reach in the main show. And sometimes we let rip just a little on some of the things we did talk about in the main show, but showed better judgment than to say this week. The extras are going to be the continuing presence at the Federalist Society of the man who literally tried to make the coup sound constitutional to Mike Pence. The three justices who are on a charm offensive and why? And we’re going to take a look at some of the amicus briefs that have been filed in the Big Mississippi abortion case. Dobbs, if you would like to access that conversation with Mark, but you’re not a Slate Plus member, go to Slate.com slash Amicus Plus to find out how to join us. It’s only a dollar for your first month. And Slate Plus memberships help support all of the journalism that we do here at the magazine. So not only are you getting exclusive bonus content in ad free shows, you’re also getting our eternal, undying gratitude series. Thank you, Slate Plus members. OK, first, let’s head to our All-Star panel held virtually in Texas. We called this discussion on the bench, and it’s hard to think of a better time for a deep dive into the doings at the U.S. Supreme Court, with the first Monday in October right straight ahead of us and a very high octane spring and summer. Still sending shockwaves through the entire country. I cannot think of a better or more fun panel to take that deep dive. Enjoy. I want to welcome our friends who are listening in at Amicus. I want to welcome more friends listening in at strict scrutiny. If you’re a court watcher, you already probably have a huge crush on the strict scrutiny podcast, where these three brilliant women break down what’s going on at one first treat like nobody else does. Each of them is probably well known to our Amicus listeners and probably to all of you. If you watch or listen to or consume any news about the court, we are racing against the clock. There’s so much to talk about, so their incredible bios are absurdly compressed for our purposes, and I apologize that’s on us. Leah Litman is an assistant professor of law at the University of Michigan Law School, where she teaches and writes on constitutional law federal courts post-conviction review. Her writing appears absolutely everywhere, and in addition to co-hosting and co-creating strict scrutiny, Leah also co-created Women Also No Law, a tool for promoting the work of women and non-binary academics. Leah Welcome.
S3: I’m so excited to be here.
S1: Melissa Murray teaches at NYU School of Law and co-directs the Burningham Women’s Leadership Network. She is a frequent contributor at MSNBC. She’s also co-author of Cases on Reproductive Rights and Justice that was the first reproductive rights and justice case. Book Melissa Murray. Welcome.
S3: Thanks for having me. It’s great to be back here deep in the heart of Texas on Zoom.
S1: Kate Shaw is a professor of law and co-director of the Florsheim Center for Constitutional Democracy at Yeshiva University, where she focuses on executive power, federal courts and election law. She also served in the White House Counsel’s Office as a special assistant to the president. She is a contributor to ABC News. Kate, good to see you.
S2: Great to see you. Dahlia great to be here. And we should say you’ve been showing us how to do this work of commenting on the Supreme Court for a long time. So it’s terrific to be here with you.
S1: Well, thank you. It is, I think, fair to say you all will check me if I’m wrong that this last summer has been kind of unlike the summers. At least I got used to wear kind of aging justices, fly off to Europe and teach arcane courses, and the court kind of goes on screen. Save for the summer last term was momentous. This summer has been momentous. The term ahead of us may be history altering this. This is an immense amount of ground we’re going to try to cover in 27 minutes. So I thought we could just jump in and maybe we can start with the term that just ended in or nominally ended it the end of June 2021. There were a lot of dogs that didn’t bark Leah Amy Coney Barrett swapped out for R.B.G. The court didn’t hand the election to Donald Trump. It didn’t overturn the Affordable Care Act. It garnered a lot of end of term plaudits for being a very centrist, unanimous, reasonable court. Is it fair to say that actually not that much has changed from a court that went from five four conservative majority majority John Roberts at the center to the six three conservative supermajority court with Brett Kavanaugh at the center? Or has this been just massively misperceive?
S3: I think it’s a massive misperception, and I think we saw that in the term that finished even before we saw all of the activity over the summer on abortion, the CDC eviction moratorium and other issues. So the last term, you know, which we had covered, saw the court basically enjoin coronavirus public health measure after public health measure on religious liberty grounds and do so on the courts shadow docket, which as a matter of convention, you know, required five votes or six votes if they were summarily reversing opinions. And those decisions wouldn’t have been possible if John Roberts was still at the median of the court. He joined the more liberal colleagues, you know, dissenting from some of his more conservative, aggressively conservative colleagues efforts to quickly change the law on religious liberty. So I think the idea that this past term was a moderate centrist court is a very bad misperception and ignores how the court also changed the law, not just on the shadow docket, but also in some of the cases that flew under the radar and shouldn’t have, like when the court massively altered the scope of federal takings law and suggested that any time governments allow inspectors or people onto property for three hours a day less than half of the days of years, all of a sudden that’s fatiguing. That requires compensation. And we saw that reverberate in the decision striking down the CDC eviction moratorium. So they did a lot last term. It’s just for whatever reason people said, well, because they didn’t do the most crazy things they could have, i.e. all of the things that Sam Alito wanted to do. They’re moderate, but that is not the relevant comparison.
S1: So Kate, I want you to just unpack the shadow docket because not everybody who’s listening knows the distinction that Leah very, I think, correctly points up when we look at those end of term statistics that come out and they say, Well, you know, these were the 57 cases that were decided. This is how many were eight to one, you know? It sure looks as though this is a, you know, a court that’s in massive agreement about virtually everything and look at these unlikely bedfellows. So we have to graft on to those numbers, these shadow docket numbers that Lee is talking about. And I’m always careful because the word shadow docket sounds so pernicious and creepy, right? It’s very Halloween. I wonder if you could just help explain to folks for a quick little minute what happened on the shadow docket, how it’s being used differently and why it is that even some really scrupulous court watchers don’t take those numbers into account.
S2: And I think you’re right, that shadow docket sounds kind of nefarious, but I’m actually OK with that at the moment because I think that the court’s use of it, especially in the last year, has been nefarious and should be deeply troubling to anyone who cares about transparency, accountability, democracy and these values. So basically, just definitionally, the shadow docket just describes cases that the court disposes of outside of its ordinary decisional processes. Normally, a party seeks cert, the court agrees to take up a case you know, used to be what used to be hundreds a year. More recently, it was 80 or 90 a year. In the last couple of years, those numbers have been really declining, so it’s 50 or 60 cases a year in the last couple of years. And at the same time, we’ve seen this increase in the court disposing of cases outside of that ordinary process, which again involves a cert grant and then briefs filed oral arguments, extend negotiations and discussion behind the curtains inside the court and then a public decision that everyone can read and agree with or disagree with, but at least sort of understand. So the shadow docket often involves, well, always involves, you know, not that full sort of suite of actions. It does involve briefings or written briefs get filed, but it doesn’t involve oral arguments, and it sometimes doesn’t, sometimes doesn’t result in a written opinion, giving reasons. So the court decides on an expedited basis whether to grant injunctions and stays in other. Signs of what we call like emergency relief and sometimes does it in hugely consequential cases now it has done this really always, but it has not done it with the frequency and the kind of broad impact that it has done in the last couple of terms. So this the shadow docket activity really spiked during the Trump administration when the Trump Justice Department came to the court. This conservative court not as conservative the whole time as it is now, but still always conservative court seeking relief from the lower court injunctions that were issuing left and right because the Trump administration engaged in a lot of sloppy and lawless activity that the federal courts put a hold on. And the Supreme Court often granted emergency relief, restoring the status quo that the Trump administration saw it from the courts. So you know, the numbers compiled by our friend Steve Vladeck on faculty at the University of Texas show that the court issued 28 orders at the request of the Trump administration on the shadow docket in four years. Compare that to four such orders in the 16 years of the George W. Bush and Obama administration, so it’s just an unbelievable increase. So that’s the federal government seeking and getting this extraordinary assistance from the Supreme Court outside of its usual processes. And I just think the justices maybe like, got used to working those muscles and litigants. So sometimes private parties, sometimes states saw how successful the Trump Justice Department was in getting the court to intercede in a lot of cases and said, Well, we should try it and have met with pretty receptive audience from the Supreme Court. So the court, just in the last year, has issued seven injunctions of what Leah was describing. These coronavirus restrictions issued by state and local government officials on Religious Liberty Grounds that just a staggering number, the court has interceded to put back on the calendar executions that had been stayed by lower courts. The court has interceded in a number of other areas, but an incredibly sort of uneven, inconsistent and selective way, stepping in to protect certain kinds of constitutional rights like religious liberty. But conspicuously failing to do so in the context of other kinds of constitutional rights, like the right to abortion, which I imagine we will get to at some point. So that’s that’s the overview
S1: we’re getting there now. Kate, I think that we have to we are, as Melissa points out, deep in the heart of Texas. It I’m going to say it’s not an overstatement to say Melissa, you’ll correct me if I’m wrong. This has been the Supreme Court story of the summer. And let’s note, I mean, Leah already said we had the moratorium eviction. We had remain in Mexico. It’s not like the the court was not very, very busy this summer. And yet SB eight and the courts in this case, failure to redress it in late night orders on the shadow docket has turned into a pretty seismic, I think, story about what the court is and is not doing. Melissa, I want you to explain SB eight, but I also maybe want you to do it through the lens of a lot of folks, defend the court and say, Look, they didn’t jump in. You know, everything that Kate Shaw just said about the court being lawless and activists and reckless? I mean, maybe it’s a good thing that they didn’t jump in and do something with SB eight, but I think maybe set the table for a moment. I’m sure most of our listeners know exactly what happened in Texas in the last couple of weeks, but give us a quick overview and then tell us what the court did.
S3: So let me just say that you’re right. This was surely the story of the summer. Although it was vying against a number of other stories, including Why hasn’t Justice Breyer announced his retirement? So let’s bracket that one. So SB eight is a Texas law that was passed in May, and it’s an unusual law in that unlike other abortion restrictions and there have been a number of increasingly restriction abortion laws passed throughout the country, likely because of the change in personnel at the court. Abortion opponents imagined that they will receive a more hospitable reception with this currently constituted court. In any event, the problem with those really aggressive laws is that they’re patently unconstitutional because many of them restrict abortion before viability, which the Supreme Court’s precedents in Roe versus Casey say you cannot do if you are the state, and typically when these laws get passed, they are immediately challenged by abortion providers and almost immediately enjoined by the lower federal courts. But typically, what happens with those laws is that the person that you sue is the state official who is charged with administering the law or act or enforcing it. And so in Roe vs. Wade, Wade was Dallas District Attorney Henry Wade. Texas has done something that is almost fiendishly clever, and I don’t use the term clever in a good way, but in a really pejorative way. They have actually taken the state out of the enforcement business here, and that’s specific in the statute. The state is not. Available to enforce this law and instead, what Texas has done is delegated the enforcement of this law to private individuals. So any private citizen in Texas is offered a cause of action to sue a provider for providing an abortion or alternatively, to sue someone who has aided or abetted someone in seeking an abortion or providing an abortion. So it isn’t and completely privatized enforcement scheme. And it was done purposely to avoid federal court review because you don’t have a state official who’s available to enforce the law. You cannot bring a free enforcement chart or enforcement challenge against the law and in abortion litigation. Stopping the law from going into effect is actually the name of the game because if the law is allowed to go into effect, what likely happens is that providers are forced to shut down. And even if the law is later determined to be unconstitutional, as this law surely will be. It’s too late because the providers, once they go out of business, usually cannot resurrect themselves to come back and get back online afterwards. So. Texas has done something that no one else could do. It figured out a way to stop the providers in their tracks and to do it in a way that insulated those laws from federal court review and the Supreme Court in that late night order on September 1st essentially blessed it and we’ve never seen anything like this. They did it on the shadow docket, and although people say this is a nothing burger, they didn’t jump in. It’s just a procedural decision. They know we know that that procedural decision has massive substantive implications, and what the court did was allow a patently unconstitutional law to go into effect, restricting reproductive rights for women in the second most populous state in the country.
S1: And Leigh, a quick follow on if I may, which is simply and I know this is a moving target. But the Biden administration has tried to do the thing that the court made impossible by jumping into this. We’re now, I guess, all waiting for an October hearing on the Biden administration’s motion. But is it your sense that whatever it is that the federal government has done to try to intervene in the standoff? The Melissa is describing where a court simply the Supreme Court simply said, Sorry, we know it’s unconstitutional. Nothing to be done. Best of luck. We’ve got clinics closed. We’ve got providers no longer providing services after six weeks. We’re in a real staring contest. How does the Biden administration’s effort to move this forward look like it’s faring?
S3: I think there’s a way in which it is successful in a way in which it’s not. It is successful because we are still talking about the fact that the Supreme Court allowed Texas to effectively ban most abortions in the state. I mean, gosh, if we all just forgot about that after September 1st, that would be a real problem. And the second way in which I think it is successful is first lawsuit. The way it is structured does address the ostensible problem that the Supreme Court said there was with the abortion providers lawsuits against the various state officials, which is the abortion providers had to name specific state officials since they couldn’t sue the state for enacting an unconstitutional law. But the United States can. They can sue the state and seek an injunction against any possible state official, including judges and clerks who might be involved in the enforcement of this law. So I think in that respect, it’s successful in other ways, less so. I mean, the reality is is that every single day, every single day since September 1st, there will be some people in Texas who cannot get abortions so long as SB eight remains in effect. People who are more than six weeks after their last period and aren’t able to travel to another state, or they’re not able to get an appointment in another state during the time window in which those states would allow them to have abortions like this is every day. There are harms that are never going to be cured, no matter what happens with this lawsuit. And second is, I think the reality is given what we saw the Supreme Court do with the abortion providers lawsuit, as well as frankly, what they’ve done in other cases, I think it’s extremely unlikely that they will resolve this case based on, you know, what I thought to be a pretty general legal principle that the United States has an interest in ensuring the supremacy of federal law, and the United States has an interest in securing people’s constitutional rights under settled constitutional law. I don’t think they’re going to enforce that principle with respect to abortion rights. And so in that respect, I don’t necessarily think this lawsuit is going to be the bullet that fixes, you know, harms that might continue into the future.
S1: I want to ask all three of you what’s going to feel like a semi gossipy question before we turn to the term that’s coming. And you can just roll your eyes or wave your hands if you want to take it. But Melissa has already noted that one of the hot topics of debate in Supreme Court land is Justice Breyer’s failure to retire. It has to come coupled with his charm initiative. I don’t know what show he has not been on. Talking about the court being apolitical and non-partisan, but he’s joined by some unlikely bedfellows. Amy Coney Barrett just gave a big blockbuster speech in which she said We’re not partisan political hacks. And moreover, blame the press for the narrative that the court are political, and Clarence Thomas took to the hustings to make the same speech. Court is not political. It’s the other branches that are political. We’re just doing law, and I have to ask all of you what it signals that in September alone, in the weeks leading up to first Monday, we have a third of the court both doing the things that Leah started with. On the shadow docket more often than not, entering an incredibly politically hot term, and a third of the court is out there waving their hands, telling us that they’re not political. I don’t know quite what to do with that. Who’s waving their hands to answer why it looks like you Kate Shaw? OK.
S2: Well, I’m sure. I’m sure you’re going to shut us up on this topic. I will. I will. I will limit myself to a couple of observations. One. So I’m sure we all saw it this week. Quinnipiac had a poll out on lots of topics, right, like masks and vaccine mandates and other things, but did ask about SCOTUS, and most Americans are not impressed with the Supreme Court right now. Right. The worst approval numbers since Quinnipiac started asking this question in 2004 came out this week, so SCOTUS has a 37 percent approval rating among registered voters right now and a 50 percent disapproval rating, and I think the justices noticed this and care about this. And so I think we are hearing some kind of response from the justices, which is pushback. So I think the reason Americans are disapproving is because the court appears to be nakedly partisan in some of these decisions or, you know, the selectivity with which it will render or withhold decisions in certain kinds of cases. And so I think that that there is an important takeaway, which is that the court pretends it’s insulated from politics. It does care about public opinion and it is pushing back. And I think that means that it matters what we think about and what we tell pollsters, what we think about the Supreme Court. And the thing I’ll say about I am just I’m deeply frustrated with Justice Breyer, some of Justice Breyer statements in the kind of media blitz over the last couple of weeks, even before the substance of the statements. I find it frustrating that I’m not suggesting he’s staying on the court to sell books or anything, but he’s written a book. I haven’t read the book. Leah has read the book. She may have thoughts on the book, but I’m not sure he’s getting booked on all these shows about the book, if not for the swirling questions about will he or won’t he? So in a way, he is capitalizing on the suspense in a way I find really troubling. And I’ll let my mike, my my co-host, weigh in on Barrett, Thomas or any of the above if they have other thoughts, as I know they do.
S3: The whole question of whether and when Justice Breyer will step down is reaching LeBron James like proportions. I don’t think I’ve ever seen anything like this since LeBron James debated leaving Cleveland and then returning. I to think Justice Breyer should take his talents to South Beach or Miami. I mean, for whatever it’s worth. Dwayne Wade will surely make a place for you. Justice Breyer, if you just ask, but you know, to the point that you have Justice Thomas and Justice Breyer and Justice Barrett weighing in and all disclaiming this notion of partisanship, you know, I get it. The Quinnipiac poll, certainly part of it, the increased and more vociferous cries for court reform is likely also part of it. But I think the court should really think about the messaging and the optics of how the messages are delivered. It takes real chutzpah to stand at a podium and say that the court is not political when you are making that statement. While flanked by Senator Mitch McConnell, who’s probably done more than any other individual in recent history to actually politicize the confirmation process. So wow, that the optics of that were stunningly, stunningly poor. Likewise, Justice Thomas at Notre Dame made statements about the court not being political, and this is an individual who in separate writings that our public has said that he is uninterested in stare decisis when it requires observing and providing deference to decisions that he believes are demonstrably erroneous, which is at bottom a judgment call to some degree. And so these two may not be the best spokespersons for this message. Justice Thomas and Justice Barrett are the guy in the hot dog. Suit me, right? Like, we’re all trying to find the guy who did this. I mean, the idea that Justice Barrett would say the court is political. After being introduced at a center named for Mitch McConnell is an insult to the intelligence of every sentient being on the face of this Earth. But the two of them, Justice Thomas Justice Barrett, as well as Mitch McConnell, it’s in their interest for the court to be viewed as legitimate because, you know, as academics and scholars have explained, the court doesn’t have the authority to enforce its own decisions. The court gets its authority through people accepting the court as a legitimate institution and believing the court is engaged in law rather than politics. And if people no longer believe that they lose their power and they’re now in a position to again give Texas the keys to ban abortion and do all of the things they have been itching to do, so of course they are going on this PR campaign to say, let us do all of the things we want, and I think that’s how people should understand it. As for Justice Breyer, I mean, that guy is frankly high on his own supply. I don’t know what he is doing, but you know, I understand he wants the courts to be legitimate. I understand that he wants the court to act legitimate. I do not understand his releasing a book about how the court is completely apolitical. On the same day, the same day that the Supreme Court allowed Texas SB eight to go into effect and then to continue his book promotion tour afterwards. Not a great look.
S1: Stephen Kate Let’s do a speed round on what’s coming. The court, we should be clear, actually has not set oral arguments for for absolutely everything that’s coming down the pike. We don’t actually have a date yet for when Dobbs, the Mississippi abortion case is going to be argued. But can you just give us a quick? We know guns are coming for sure. Abortion is coming for sure and possibly affirmative action. Can you pick one of those three? And we’ll just bump, bump, bump through all three of you and see if we can get a preview?
S2: Sure, I’m happy to start with Dobbs, the Mississippi abortion case. So this is a case in which there’s a more traditional abortion ban and one that kicks in later in a pregnancy. So 15 weeks now, rather than six weeks since the last general period and one that is enforced in the traditional fashion. We should say to your first question, Dahlia about, you know, how much the court has really changed. I think you can see in the briefing that Mississippi has filed in the Supreme Court, some of which preceded Justice Ginsburg’s death and some of which followed her replacement by Justice Barrett, just how dramatically the legal landscape has changed. So Mississippi files a petition saying You don’t need to overturn anything, but let us keep our 15 week ban in effect because you could, you know, rethink the standards you have set forth in previous cases. The court sits on this petition for months and months and months, gives Justice Barrett a chance to kind of get acclimated to chambers, put her paintings up, et cetera. And then they grant the case in May. And by the time Mississippi is filing its merits briefs, it is saying burn it all down, obviously overturn all of the precedents. So Mississippi understands it’s talking to a totally different court than it was when it filed its cert petition. And so, you know, as you said, we don’t have a date yet, probably December. But I think that, you know, and yet even with Mississippi on the horizon, the court couldn’t put the brakes on in Texas to just decide the Mississippi case first without letting this flagrantly unconstitutional Texas law go into effect. And so that’s obviously a huge one, I think, by the end of June. You know, Roe may well no longer be the law of the land. I think very likely will no longer be the law of the land, whether formally or functionally.
S1: And I just want to push on something you just said, Kate, because I think it’s so important. Dobbs was coming anyway. The court had could have looked really apolitical and judicious by simply pumping the brakes with SB eight in Texas. The idea that instead we saw the court really floor it, I think, tells you a lot about what’s coming. Melissa do you want to take a whack at either affirmative action or gun?
S3: So I’ll I’ll I’ll take a stab at guns. Let me just say that the other thing going on and Dobbs and this is the interaction between Dobbs and SB eight is that, you know, now that we’ve had SBA, which bans abortion at six weeks go into effect suddenly 15 weeks seems a reasonable compromise. Let’s uphold that. And so you know, what’s also happening here is the court has participated in shifting the Overton window on what we think is reasonable in terms of abortion restriction. So you add that to the ledger. So the court is also going to hear a case called New York State Rifle and Pistol Association versus Brewin. And this is more than 10 years after the court in Heller versus District of Columbia recognize a right to have a home, a handgun in the home for self-defense. A couple of terms ago, they tried to take up another Second Amendment rights case, and that didn’t work out because New York repealed the law that was at issue and that basically mooted the case. This tees it up again, and there are a lot of folks on the court who were really antsy for a new challenge on in. That earlier case that was mooted, Justice Kavanaugh and Justice Alito both signaled that they would be very interested in hearing a new case that raised the Second Amendment cases, but this one deals with a New York law that prohibits or provides some restrictions on getting a concealed carry permit in the state. And these concealed carry permits. They have particular conditions for their granting, and lots of states have these conditions on them. So New York is not the only one, although the New York law is the one that’s being challenged. And if the court moves in the direction that I imagine that we expect it to, which is to strike down the New York gun control law that puts those conditions on a concealed carry permit. It will dramatically reshape the landscape of Second Amendment rights and its Kate noted earlier. That’s very a very different posture than the one they’ve taken with regard to other kinds of rights, like reproductive rights, although quite consistent with their expansion of First Amendment rights and Leah.
S1: Can you do a quickie on affirmative action, which is not a for sure grant yet? Yes.
S3: So this is a case that challenges the legality of Harvard College’s admissions programs. Back when the Supreme Court was deciding affirmative action cases in the 1970s, Justice Powell wrote What we wrote, what wrote, what was the foundational case and opinion for affirmative action jurisprudence. And he held out Harvard’s admissions program as the example of what a permissible use of race in admissions policies was, namely part of a holistic review of a candidate’s file. In order to ensure diversity in a class and a group that is opposed to affirmative action. Students for Fair Admissions has challenged Harvard’s affirmative action policy. They argue it violates a federal statute that is interpreted to be consistent with the Federal Constitution, and their cert petition also asks the Supreme Court to revisit the case. Grutter versus Bollinger that held affirmative action was constitutional at the University of Michigan. So what the court did is they invited the solicitor general to weigh in and give their views on whether the Supreme Court should take that case. We haven’t yet received the solicitor general’s brief. It’s possible we will get it soon, in which at which point the Supreme Court will decide whether to take the case. I think given the extent to which you know, this court is in a hashtag YOLO, let’s just do it and be legends mode. You know, they might be inclined to just do this one, too. You know, as we were talking about with respect to Dobbs and Texas SB eight, so that’s also something that could make its way onto the docket. I just wanted to note two quick additional points about Dobbs, which is first, even if the court does not take Mississippi’s invitation new invitation to overrule Ron Casey, that does not mean they are moderate or institutionalist. Just putting a pin in that now. Second is I think it’s possible they will do in that case what they did in Texas, SB eight, which is simultaneously insist we’re not getting rid of Roe and Casey. It’s just we’re allowing states to prohibit abortions before viability. And again, we should all understand those decisions for what they are allowing states to ban abortions before viability, i.e. criminalizing the core of the right protected and defined in Roe and Casey.
S1: So we have to wrap up, which breaks my heart because I still have about 400 questions I would love to ask and have answer, but I do want to say that all three of the extraordinary women who you are meeting today have written a really, I think, powerful law review article called a podcast of One’s Own, explaining just how desperately women’s voices are needed in the space around, not just at the Supreme Court arguing at the Supreme Court, but commenting, thinking, writing about the court. And this is what you are witnessing, particularly in this moment around SB eight exactly why we need these three voices. I could not be more honored to be in conversation today with Leah Litman Melissa Murray Kate Shaw. Thank you so much for the work that you do.
S3: Thank you, Dahlia. Thank you so much, darling. Thanks for having us, Dahlia and we
S1: really want to thank the Texas Tribune. We want to thank our listeners at Amicus and Slate, and we hope that if you enjoyed this conversation, you continue to stay really active and involved. This is going to be a hell of a Supreme Court term. So buckle in. Thank you for having us. And here we are back for everybody’s favorite part of the show that is the slate plus extra top secret special edition conversation with Mark Joseph Stern. This is our, I think, first big conversation rolling into the opening of the term. So Mark, welcome.
S4: Thank you. I’m not ready for the term at all. So that sent shivers down my spine, but I guess it’s we’re ready for us.
S1: I mean, to be clear, the 2020 term never really ended, right?
S4: This is the new phenomenon. With the shadow docket. The last opinion comes down and then the court just spends the summer overhauling the law through a series of midnight orders with no majority opinion unsigned, no reasoning. So, you know, it just never stops now in the SCOTUS, be it. And that’s the life we’ve chosen. Dahlia.
S1: It is the life we’ve chosen, I wonder, Mark, if we can start with the completely mundane question, how are oral arguments going to happen this year? As as Mark and I are always quick to say, it was so fun to have the telephonic arguments and the justices all talked and Clarence Thomas had an actual voice. Now we’re doing this strange hybrid d thingy. Can you walk us through how oral arguments are going down?
S4: Yes, and I actually like this format. I think maybe once I hear it all, he let. But essentially what the court is doing is going back into the courtroom. The justices will be on the bench, but the only people allowed in will be the attorneys. The party is the Supreme Court press corps with hard passes, so a limited number of members of the press who will be spaced out or around the courtroom, I believe, and the justices will ask questions from the bench and the entire thing will be livestreamed as well. So for the first time ever, people will be able to hear arguments from the courtroom as they happen, which is a big step forward. Now, how will those arguments happen? At first, it will be just like the good old days, so the lawyer will go up, speak for two minutes uninterrupted, ideally. And then there will be a free for all. It will be a hot bench. Justices will jump in and ask questions in any order. Then, after a certain period of time, the free for all will stop and the justices will ask one final question each in order of seniority. So it’ll start with the chief justice asking his question, and it will go right on down to Justice Amy Coney Barrett. And that will mimic what we heard over telephonic arguments. So truly a hybrid in many ways, and I’m kind of optimistic about it. I think it makes a lot of sense. And you know, there will be some adjustment period, but at least we don’t have to worry about a toilet flush with this. And that alone is a huge perk.
S1: Yeah, I mean, I think not to put. Too fine a point on this, but this is really what you and I have been agitating for for a very long time, which is that if folks want to listen in, they will be able to listen in. And I like the idea of mashing together both the order of seniority, giving the justices who don’t like jumping in a chance to speak, but also going back to the old version and the flow of if we have a theme, we can keep talking about it and we don’t have to truncate discussions every time we start a new line of questions. So this feels like it could kind of be the best of both worlds.
S4: Yeah, I agree. And I think the big question is whether the live streaming from the courtroom will continue after COVID is over, if COVID is ever over and the court resumes its normal operations. That’s something that you and I have been advocating for as well for a very long time. You know, I’m certainly a proponent of cameras in the courtroom, but I do think that live streaming audio is a perfectly acceptable and satisfactory compromise. You know, the big problem right now is that nobody knows what’s going on inside the courtroom until the doors open at the end of arguments. And then everybody has to wait for transcripts, which can come two, three or four hours later and are sometimes riddled with typos. Until then, it’s just people like me tweeting little fragments of questions and answers that we scrawled down since we’re not allowed to bring computers or phones. So I’m again cautiously optimistic that the justices will like this, and it will kind of introduce them to this idea of livestream arguments and when and if it ever ends, they’ll say, OK, it wasn’t so bad. It wasn’t the end of the world. I guess we can keep this as a compromise and sort of stem the endless tide of arguments for cameras in the courtroom.
S1: And before we leave the Supreme Court, let’s talk for one little minute mark about the big pileup of Amicus briefs or amicus briefs or amicus briefs if you’re justice Breyer,
S4: that’s just perverted
S1: what Amicus? He is quite emphatic on this point. Can we talk a little bit? You’ve been, I know, poring over the briefs in Dobbs in the Mississippi 15 week abortion case. Can you just talk briefly about what you are finding in? There’s really been an immense amount of activity, both on the New York gun case and the DOBs case in terms of those green briefs, just blizzard ing down upon us.
S4: Yeah. So I guess one theme that we see in the Dobbs briefs in the abortion case is just this almost brazen effort to flatter the hell out of these three conservative justices who appear to be most gettable on abortion. And those justices are John Roberts, Brett Kavanaugh and Amy Coney Barrett. And just saying that out loud reveals how desperate and unlikely this whole endeavor is. But you know, they’ve got to go through the motions. And so what we see are a lot of citations to previous opinions that each of them have written about Stari decisis, about precedent, about, you know, the legitimacy of the court and also with Barrett about the importance of having a framework to replace precedent when you overturn it. So last term in Fulton versus Philadelphia, Justice Barrett declined to overturn this longstanding precedent and wrote a separate opinion, saying, Well, I’m scared to overturn it because I don’t know what comes next. That’s actually a big problem in Dobbs, because Mississippi and all of their Amicus have urged the Supreme Court to overturn Roe v. Wade, and they don’t have a clear idea of what comes after Roe. And one of the issues is, of course, that all of these decisions involving bodily integrity and personal privacy are bound up with Roe and its progeny and the right to abortion cases, granting a right to contraception, a right to same sex intimacy, a right to bring up children as you see fit. They’re all kind of bound together with Roe, and none of the antero lawyers have an idea of what will happen if Roe falls and whether that just means it’s totally open season on all matter of personal privacy. And so there’s a there’s a clear goal of winning over Barrett by just scaring her and saying, we don’t know what comes next, so let’s not take this leap into the breach. Don’t think it’ll work, but I guess it’s worth a shot and it’s pretty much all they have.
S1: I want to talk briefly, mark about John Eastman for so many reasons and listeners, you should see Mark’s face light up as John Eastman. You know, darling of The Federalist Society, turns out the one of the legal architects of Coup de Jan six. Can we just talk briefly about
S1: he was arguing in now disclosed memos about how Mike Pence could have set aside the results of the presidential election in 2020? And maybe just dip briefly into why it is that he is still on panels and in professor groups and why it is. And I know we talk about this with so many lawyers. But why the kind of very, very esteemed. Great brains of the legal movement still are OK with John Eastman.
S4: You know, I guess that last question is difficult for me to answer because it seems to me like all of the people welcoming John Eastman back into their academic and intellectual circles are just shameless hacks who deserve to have signs hung around their necks, saying that they have no shame and no integrity and do not deserve to be taken seriously are ever welcomed into polite society. But to your earlier questions, John Eastman lobbied Mike Pence, right? This wasn’t just a memo floating around. This was something that John Easton was pushing on Mike Pence to throw the election to Donald Trump when counting the electoral votes on January 6th. And the basic idea here was that Mike Pence was going to refuse to acknowledge the votes from states that Joe Biden had won, that we’re fairly close like Arizona and Georgia, and say that there were two different slates of electors that those states had produced, that there were some electors who were going to cast their votes in the Electoral College for Biden and some who would cast them for Trump. And so he just couldn’t, couldn’t say who would win. And the whole contest would be ultimately thrown to the House, where Republicans hold a majority of state delegations. And so they would be able to hand Trump a second term. Obviously, it didn’t work. Obviously, there is just a huge number of glaring legal errors in this memo that are laughable. I will say it still scares me because one of the lynchpins of the whole plan was this idea of an alternative slate of electors, right? And this is something that I really believe Republican legislators and politicians are trying to shore up for 2024, right? This is crucial to throwing an election to a Republican who didn’t actually win it. It’s producing a slate of electors who will cast their vote for that Republican, even though the state went the other way because the state legislature will just say, we don’t accept the results and we’re the ones who decide. So we recognize and appoint this slate of electors, the Republicans who are going to send a Republican to the White House. They didn’t really have their act together in 2020. The whole alternative slate of electors thing was clearly an afterthought. In 2020, they were scrambling to get some loonies to put together and claim to be an alternative slate. But this is something that states could really do in 2024. And while there are still a lot of other legal roadblocks to giving Republican an unearned win, this is something I don’t see Democrats really fighting back against. And this is something I do, I fear, see federal courts teeing up with the independent state legislature doctrine. This idea that state legislatures can just do whatever the hell they want in a presidential election, including appointing a slate of electors who will vote for the loser. So that scares me, and the rest of it is just absolutely pathetic.
S1: Yeah, we should note a couple of things. One is Jamal Bouie. Our former colleague has a great piece in the New York Times on Friday about this. That Laurence Tribe, whose work was extensively cited by John Eastman, was like, What the what? This is not, in fact, any prep or construction of what I have argued. And then I think, Mark, you’re making this really important point that I don’t think we take seriously enough, which is it’s just super easy to laugh at the crack in lawsuits and it’s super easy to laugh at. Then President Trump’s efforts to bully Georgia into changing its slate of electors or bully other states. All of that seems like it’s behind us and heartless. But I think the point you’re making is that actually this ceded the ground for what is very artful, very, very lawyerly and not nearly as obvious and flagrant, but actually quite a bit more dangerous. You know, and so that we can sort of laugh about the Arizona, you know, the results of the Arizona audit and say, Well, that’s behind us. But the fact is the work is done, which is to sort of lay the groundwork for doing this right the next time. And I’m just struck by how many times you and I have said that when we laugh at the creepily dumb, heartless thing, we sometimes miss that the shark is coming right behind it. Right?
S4: That’s right. The shark is right there. We can see it spin, and we’re all still laughing as though it’s just a movie.
S1: Mark, I have to turn to the utter hilarity of one third, as I understand it, of the Supreme Court spending last week on a completely bipartisan, non-political basis, telling us that they are. Bipartisan and non-political. All three of. Amy Coney Barrett, Stephen Breyer and Clarence Thomas were at pains last week to let us know that even though the court has the lowest, I think, approval rating in the history of at least Gallup polling, let it be clear we are not partisan.
S4: That’s well, and we should note that Amy Coney Barrett said this at a speech at the McConnell Center after being introduced by Mitch McConnell, who then sat next to her as she declared that the Supreme Court is not just a bunch of partisan hacks. Make of that what you will. I think this whole thing is embarrassing and ridiculous, and I think that all three of them should be ashamed of what they’re doing, particularly Stephen Breyer who knows better. Because with Barrett and Thomas, there’s some strategy here, right? We see that the poll numbers for the Supreme Court are going, especially among Democrats long overdue. I think they understand that their power is derived from sheer magic. As you often eloquently explain, right, that the Supreme Court doesn’t have its own police force to go enforce its decisions. We just have to believe it in its own magical powers to say what the law is and make itself. And they are out here trying to shore up the court’s legitimacy as it takes a hard right turn and prepares to veer further to the right than it has in maybe about a century. So that makes sense to me, even if I think it’s gross. They are sort of laying the groundwork for this coming term in the public’s eye, and when they issue these really, really conservative decisions, they will be able to say, Hey, we, you know, we warned you we were just applying the law. You know, we went out there and went on the lecture circuit and said, We’re not a bunch of partisan hacks, so how dare you call a partisan hacks that we’re just doing our jobs with with Stephen Breyer? I don’t. I don’t get it. I don’t get it. I don’t know if he’s just trying to sell books. I don’t know if he’s a true believer in this stuff. If he’s been on the court for so long that he’s just sort of been indoctrinated by this idea that it’s totally nonpartisan, apolitical. But it’s it’s a really, I think, unfortunate way for him to spend his golden years and what I hope to be his last term on the Supreme Court. He knows better, or at least he should. And I look forward to seeing his dissents in coming cases and seeing just how much they align with what he’s saying on The Colbert show right now.
S1: Let’s talk before I let you go mark. I think the question you and I have probably received the most in the last two weeks is how do I even watch S.B. eight unfold? I think there was a collective sigh at the beginning of this week when Dr. Alan Braid admitted in the pages of The Washington Post that he had in fact performed an illegal under SB eight termination of a pregnancy inviting litigation to help for litigants both out of state came forward to sue him. It appears now that the crafters of SB eight or like, Oh no, we didn’t mean those kinds of lawsuits. We don’t support those. Those are stunts. But I think there’s a lot of lanes here and folks are confused about timing. So if I could lay this out, can you walk us through it? We’ve still got the ongoing challenge by the providers that the Supreme Court refused to enjoin. That’s going to be heard in December at the 5th Circuit, right? Then we have the Biden administration. The Justice Department has brought a suit that has not resulted in immediate injunction that is going to be heard next week. Now we have a new suit filed Thursday night by the same group of providers saying, and this is the one that I still can’t fully understand because I’m not smart enough, but they are seeking this extraordinary relief. A petition for cert before judgment that’s in the hopper. And then through all of that, and let me know if I’ve missed anything. These two civil suits against Dr. Breyer, the Justice Department lawsuit the original challenge and now this extraordinary relief. We are careening into drops. Can you please please draw a map of the world of SB eight and what is going to happen first, if you can? And what if anything is going to happen before Dobbs?
S4: Sure. So let’s start with the state lawsuits, right? So two different out-of-state lawyers have filed suits in Texas state court against Dr. Alan Breyer, who wrote a piece in The Washington Post acknowledging that he performed an abortion after six weeks in Texas in violation of SB eight. Those cases are now going to be litigated in Texas state courts and the. Doctor is going to raise as a defense, among other things, the fact that Roe v. Wade is still the law of the land, and so it is just not constitutionally permissible for him to be punished for performing an abortion that is legal under binding Supreme Court precedent. Let’s assume that both of these state courts are on the level and are going to acknowledge ROE as binding precedent. In that case, they will presumably throw out the lawsuits. But that doesn’t mean that SBA is over or that it’s enjoined because the way this law is written, it’s essentially impossible for any Texas state court to block it across the state. It has to be litigated in each individual case. And so no matter the outcome of these particular Texas lawsuits, SB eight will still be in effect. This particular doctor may be off the hook because he’ll raise the constitutional right to an abortion as a defense. But everybody else in Texas will still be under the thumb of SB eight, and it will continue to work its way through the Texas court system, probably very slowly. Then we have the Justice Department lawsuits. The Justice Department lawsuit, I think, is one of the stronger suits we’ve seen because the Justice Department representing the United States can sue Texas directly. It can say we are filing suit against the state of Texas, including all of its agents, which would presumably encompass anyone who sued under SB eight. That’s something a private plaintiff can’t do. Only the United States gets to sue an individual state because the Supreme Court has said sovereign immunity is not a problem in this context. And so that case is currently sitting before a federal judge in Texas, and that judge will soon hold a hearing on whether or not to issue a preliminary injunction blocking SB eight throughout the entire state of Texas by issuing a decision directly against Texas. But we have to sit on our hands and wait for that because the federal judge is not rushing at the Justice Department. Asked him to rush it, he said, No, I’m going to take my time on this. And so we’re all waiting for early October when that case will move forward. Then we have the once again petition before the Supreme Court, which is really part of the same case that we all freaked out about, and rightly so in early September. This is the same lawsuit that was filed against state court judges and clerks in Texas. Right? That was the first bite at the Apple, the first effort by abortion providers to block SB eight. As you recall, they went to a federal judge, the same judge who’s hearing the DOJ suit. They said, Please block this law. The 5th Circuit swooped in before the judge could do anything and prevented him from doing anything. The providers went to the Supreme Court and by a five to four vote, the Supreme Court threw up its hands and said, We can’t do anything. Later, a couple of weeks later, the 5th Circuit issued a decision saying, Well, we really think you sued the wrong people. We don’t think that you can sue state judges and state court clerks. And so we’re going to hold on to this case and will decide this question formally in a couple of months. So now the providers have gone back up to the Supreme Court and said, Look, we got that you ruled against us last time and we’re not asking for a ruling on the merits. We’re not asking you to issue a shadow docket decision just saying up or down vote, whether SB eight can be blocked and it should be blocked. All we’re saying, all we’re asking, is for you to say that we sued the right people, that some of the folks we sued can be sued and thus bring this case back down to the original. Federal judge was hearing it in the first place and clear away all of these obstacles so that he can decide on the merits whether to issue an injunction. That’s the lay of the land for SB eight, and all the while we’ve got Dobbs in the background, which is a completely different case, not directly related to the Texas case at all. That’s a challenge to Mississippi’s 15 week abortion ban. The Supreme Court will hear oral arguments in that case on December 1st and probably issue a decision in June of 2022. You did it. We did it, Joe.
S1: You did it. Thank you. No, I think that’s exactly. I think that’s the lay of the land. And I think anybody who. Who expects instant relief or clarity in the coming days is probably going to be disappointed. At minimum, what I’m hearing you say is we may get an injunction in the Justice Department suit and at minimum, I think I’m hearing you say that the Supreme Court could act quickly on this second petition that came in on Thursday night.
S4: Yes, that’s right. And so if the court does act quickly and rules favorably for the providers here, that case will go back down to the federal judge, who will then have two different lawsuits against SB eight before him, the one filed by these abortion providers and the one filed by the Justice Department. And it seems like we have we we can bet that this particular judge, Judge Pittman, an Obama appointee, a friend of reproductive rights, will issue an injunction eventually, probably in October, blocking SB eight. The big question mark, then, is what does the 5th Circuit do? Because the Fifth Circuit is extremely conservative, very rogue and lawless, in my view and in the view of at least three Supreme Court justices. And I think there’s a chance that no matter what Judge Pittman does, some Trump appointees on the 5th Circuit will find a way to reinstate SB eight.
S1: Mark Joseph Stern covers the courts, the law, state courts, amicus briefs, amicus briefs and amicus briefs. So at Slate.com and is, as always, an invaluable shepherd through the sticky wicket of civil procedure, criminal procedures, state jurisdiction, federal jurisdiction, all the things that I can’t even remember from law school. Mark, thank you so, so much for being with us today.
S4: Always a pleasure, Dahlia.
S1: And that is a wrap for this episode of Amicus. Thank you for buckling in with us, and thank you so much for your letters and questions. You can always keep in touch at Amicus, at Slate.com, or you can find us at Facebook.com slash Amicus podcast. Today’s show was produced by Sara Burningham. Gabriel Roth is Editorial Director. Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate Podcast. We’ll be back with another episode of Amicus in two weeks.