Rewriting Statutes Via Courts

Listen to this episode

S1: I couldn’t think of a worse way for COVID era masking on transport to be over than by a single federal judge in Florida.

S2: So this is obviously a disappointing decision. The CDC continues recommending wearing a mask in public transit.

S3: Hi, and welcome to Amicus. This is Sleep podcast about the court and the law and the rule of law. I’m Dahlia Lithwick, and I cover some of those things for Slate. This week, we’re actually going to turn our eyes briefly from the U.S. Supreme Court to a federal district court in Florida which decided on Monday to lift the mask mandate for public transportation all around the country. At one level, it could seem a little trivial. The mandate was going to expire May 3rd anyhow. The ruling came from a newly minted Trump judge who basically just tortured the word sanitation into a smoldering heat in order to get herself there. And I guess everybody hates masks now, so no big deal. But actually, this ruling was a big deal. And it feels like another episode of a lone federal jurist substituting their own public health opinion for that of an entire government agency tasked with dealing with what is still, my friends, a lethal pandemic. It also feels like part of a larger effort to ensure that those very agencies are increasingly sidelined with claims of government overreach and really expansive new ideas about liberty. And now the Biden administration is appealing in a move that risks creating a legal precedent they don’t want. Here is Biden’s press secretary, Jen Psaki, explaining why.

Advertisement
Advertisement
Advertisement
Advertisement

S2: The objective here is, of course, to appeal the 15 day extension, but also to preserve the CDC authority over the long term. Because, as we’ve noted from here, we expect there to be ups and downs in the pandemic, and we certainly want the CDC to continue to have this authority.

S3: Later on in the podcast. Slate Plus, members will be able to listen in on my conversation with Mark Joseph Stern as we talk about some of the Supreme Court news. We couldn’t get into the main show, including a death penalty decision at the Supreme Court and an upcoming case about school prayer. But first, we must turn to public health and masking and the CDC, because on Monday, Judge Katherine Kimball Missal handed down a sweeping 59 page opinion, striking down the Biden administration’s requirement that passengers wear masks on airplanes and trains and other methods of transportation. The mandate, which also applied to airports and train stations and even ride sharing services like Lyft and Uber, had been set to expire regardless on May 3rd. But as a result of the ruling, passengers were heard delightedly ripping their masks off mid-flight on Monday night as flight attendants walked up and down the aisles with trash bags.

Advertisement
Advertisement

S2: Cbsn’s Errol Barnett is at Reagan National Airport.

S3: With the latest.

S1: There was jubilation in the skies as passengers found out masks were no longer required. No one’s.

S3: Been happier.

S1: Than we are.

S4: One flight attendant.

S1: Celebrating in some.

S3: Look, we’ve talked several times this year about federal judges just tossing out Biden administration efforts. In the environmental context, we talked about it with Professor Richard Lazarus. We talked about it on the vaccine or test mandate with Andy Slavitt. But a lot of public attention was focused this week on Judge Measles ruling, partly because, yes, she is the youngest federal judge ever appointed Donald Trump recess appointed her when she was 33 years old after the ABA found her not qualified. But we’re also talking about what feels like a very results oriented reading of the Public Health Service Act. This was a sprawling 1944 law that gave the federal government power to respond to public health emergencies. Well, joining me to discuss all of that and more is Professor Lawrence Gostin. He’s professor of global health at Georgetown University. He also directs the World Health Organization’s Center on Global Health Law. His 2021 book is Global Health Security A Blueprint for the Future. Professor Larry Gostin, welcome to Amicus.

Advertisement
Advertisement
Advertisement
Advertisement

S1: Appreciate it.

S3: And I think I just want to start by locating this lawsuit in the context of other ongoing lawsuits. This is just one challenge that’s brought by a couple of plaintiffs and the Health Freedom Defense Fund that they filed in July. And they were challenging the CDC mask mandate largely under the Administrative Procedures Act. Right. So this is one of several such cases that’s in the pipeline.

S1: Yes, that’s right. You know, if you actually you step back, literally, every federal attempt to control the COVID 19 pandemic from the Biden administration have been at one time or another blocked or struck down by the courts. It’s really it’s almost jaw dropping to think that the scientists who have been charged with protecting the American public haven’t been able to act the way they need to to protect us during this pandemic. And so no matter what is done, it was, you know, whether it’s vaccines or it’s masks or it’s quarantine or it’s lockdown or business closures, if it’s, you know, regulating, you know, church services, you know, to prevent spread in churches, whatever you can think of that CDC or the Biden administration has tried to do, the courts have literally trying to handcuff them.

Advertisement
Advertisement

S3: So let’s talk a little bit, if we can, about what the actual CDC rule provided. The rule, as I understand it, was that, quote, A person must wear a mask while boarding, disembarking and traveling on any conveyance into or within the United States. And can you just walk us through the language, the Public Health Service Act, this is this sprawling 1944 law that the Biden administration relied on to defend that policy. It seems to me pretty specifically said that if the government is trying to prevent the spread of communicable diseases, it can, quote, provide for inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be infected or content. So it feels as though that very broad 1944 statute gave the CDC the authority. They thought they had to impose the mandate, but Judge Mizell thought otherwise. Am I wrong to say that all turns on her definition of the word sanitation in that act?

Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

S1: Well, I think she thinks that, but it’s certainly not the case under the law. I mean, of course, a judge always starts with the statute that authorizes the action. You know, CDC has been, you know, doing a huge amount of work under the Public Health Services Act since 1944, including quarantining, which is a much greater restriction of liberty than than masking the statute. Listen is absolutely clear. CDC can make and enforce such regulations as, in its judgment, are necessary to prevent the introduction, transmission and spread of communicable diseases. And then it goes on to list a number of things, you know, that include sanitation, but then says. Or any other thing that in Siddiqui’s judgment, may be necessary in 1944. It’s impossible that Congress would have envisaged in 2022 there would be a mask mandate, but masks are scientifically proved to reduce transmission. And to me, you know, if CDC can’t do this, it can’t do anything. It’s not like this is on the edge of CDC’s authority. May be like the housing eviction moratorium, even though I supported that. But this is literally somebody getting on a plane from New York to Los Angeles and making it so they’re less likely to contract and transmit a highly contagious virus and disperse across the country. That is, CDC is mandated CDC. CDC can’t do that. As I say, it’s it’s hard to imagine what it could do.

Advertisement

S3: And I guess the only other thing I want to say on this sanitation point is that if you read Judge Marcel’s opinion, she does yeoman’s work saying that sanitizing. Isn’t. Within the sort of purview of masking because, as she says, wearing a mask cleans nothing. It neither sanitizes the person wearing the mask, nor does it sanitize the conveyance. I mean, she’s quite determined. And she, by the way, goes through the other words, right, fumigation, pest extermination. And she feels very strongly that because she is consulting many dictionaries and doing the work of seeing what sanitation meant in 1944, when the statute was enacted, that she has really come to this conclusion that sanitation is garbage disposal, it’s sewage, it’s plumbing, but it is not, in fact, anything that is done by a mask. And it’s just at one level it looks like sophistry. At another level, I guess this is how we do law now, right? We just read statutes in ways that as long as the result we seek is achieved, then you can go for pages and pages saying that essentially, you know, CDC has the authority to make businesses clean stuff up, but they do not have the authority to prevent or prevent the spread of disease. That’s what she’s saying ultimately. And I think that goes to your larger point about what else it would do to preclude the CDC from doing other public health efforts.

Advertisement
Advertisement
Advertisement
Advertisement

S1: Yeah, well, you know, I don’t like to use this word because it may be too strong, but it really is an ignorant way of doing this. First of all, I mean, I wrote the textbook on public health law. It’s been the standard book for decades and actually start with the idea of sanitation, because sanitation actually had a much broader meaning at the time. It was a kind of term for public health. And she calls these the sanitation regulations. I don’t know why CDC since 1944 is and everyone else in law has called it the quarantine regulations and she focuses on sanitation. I don’t know why why would she not focus on the actual statement that begins, which says that they can and make enforce such rules as in its judgment, are necessary to prevent the transmission of disease across borders. And at the same time, even if you at the end of the list that includes sanitation, the statute again says or any other measure or any other measure the CDC, in its judgment, deems necessary. So it makes little sense to me why she would focus on that term, in her opinion. She also says another thing that really just struck me almost talking points out of the I don’t at the mega playbook, you know, basically saying that CDC is ripping people out of their seats on airplanes. They’re taking them away if they’re unmasked from bus stops and, you know, that kind of language. But CDC doesn’t have the power to detain or to quarantine, she said. It doesn’t have the power to detain or quarantine when, as I just mentioned, these are actually called the quarantine regulations. And CDC has used these regulations to detain, isolate, quarantine and do a whole range of other things, including requiring testing for smallpox, tuberculosis, Ebola, COVID, you name it. So this is this is just a rewriting of history and it’s a rewriting of the statute to achieve a particular talking point or ideological position. And I couldn’t think of a worse way for COVID era masking on transport to be over than by a single federal judge in Florida.

Advertisement
Advertisement
Advertisement
Advertisement

S3: And I just want to point out, because a lot of legal commentators from the left and the right have made essentially the point you just made. Ilya Somin wrote in, Millhiser wrote this week, her definition of sanitation would preclude and I guess this is a just super gross example, but it would preclude the CDC from having rules that kept people from urinating on an airplane because that’s also not cleaning the way she describes it. So really what it sweeps out is so much of what we consider public health. And as you say, it does it in this way that is really selecting them. Most tortured dictionary definition of sanitation to get there. I do want to stay for one minute on that second point you made, because it didn’t get as much attention as for sanitation analysis, and that is this liberty analysis. I just want to read a little bit from the opinion because she starts talking about liberty and it’s exactly what you just described. People are forcibly removed from their airplane seats, denied boarding at the bus steps, turned away at station doors, all on the suspicion that they will spread a disease. Indeed, the mask mandate enlists local governments, airport employees, flight attendants, ride sharing drivers to enforce removal measures. So she’s making this massive liberty point. And it’s so fascinating to me, Larry, because it’s directly in tension with some of the liberty arguments we keep hearing from Supreme Court justices and other justices who are kind of culture warriors, that liberty there is no liberty interest. There is no interest in bodily autonomy. There is no right. Those are made up, invented rights. And it’s such a funny thing to invoke the idea that you have liberty rights to get on planes without a mask, but you actually don’t have those liberty rights in a whole bunch of other contexts, including reproductive freedom.

Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

S1: Yeah, that’s right. Let me just kind of dig in a little further on these things just from a commonsense point of view and your listeners. If truly, CDC only had the power to sanitize, it would be useless. Sanitation is useless against SARS-CoV-2. It could do nothing to protect the American public. And then on Liberty, I you know, I’ve been just gobbledy struck by the modern, conservative ideological notion of liberty, because traditionally, if you look at, you know, conservatism, the the stopping the spread of infectious diseases was always the exception to liberty. That is, you know, you have a liberty to do anything. You want your own body. That is self-regarding behavior. But nobody has the liberty of transmitting a potentially lethal infectious disease to another person. That’s never been the understanding of liberty since John Stuart Mill or whoever it might be. I know of no intellectual position that would say that a person has the right to take measures that are likely to transmit an infection to others that could potentially kill them.

Advertisement

S3: Right. That’s. That’s Hornbuckle. That’s Jacobson versus Massachusetts. Right. That’s simply your liberty interests. And when you are spreading smallpox around.

S1: Yeah, exactly.

S3: So let me ask you, I think my bigger picture question, which is a thing, as I said in my introduction, that’s been worrying me in all sorts of contexts. And we talked with Professor Richard Lazarus about the court trying to hobble, you know, the EPA. And we’ve talked to other folks about sort of taking a brick bat to agency. And, as you say, all the expertise inherent in an agency taking a brick bat to that. And one of the things that enables that is just complete dearth of deference to federal agencies. Right. And there is a long standing tradition that for the most part of the statute is ambiguous. The agency interpretation is reasonable. Judges are meant to defer. That is how, in fact, we get to the place, as you noted, where millions of scientists get to make decisions and federal judges can’t second guess them here. That seems to be gone. In addition to Judge Maazel saying that the meaning of sanitation is not ambiguous and the CDC’s interpretation of sanitation is just not reasonable. She then says, anyway, we wouldn’t defer because this is a major question and Congress needed to speak more clearly. So it feels like this is a bit of a12 punch, right? This is both decreasing deference to agencies and using this major questions doctrine to say that if it’s a big deal, as indeed masks are, then Congress has to speak specifically. And this feels really as though it’s of a piece with this longer term project of just making it impossible for agencies to do anything at all.

Advertisement
Advertisement
Advertisement

S1: Yeah, I think, you know, clearly the the conservative project is to dismantle the regulatory state. And, you know, a lot of people think of the regulatory state is just, you know, a lot of, you know, federal bureaucracy. But the truth is, is is that, you know, if we want a clean environment, if we want to be protected against dangerous pathogens, if we want to go to work and be safe, if we want to buy a toy and have that toy safe, you absolutely have to allow administrative agencies to do their job. The major questions doctrine is really insidious because basically it says that an agency can’t do anything that is important. You know, we’re right now we’re in a pandemic, you know. Ending the pandemic is kind of important, and we don’t want to handcuff CDC in doing that. And in any case, when Congress authorizes an agency to act it, it understands two things. First, the Congress itself doesn’t have the expertise, but the expertise lies, you know, in career scientists and others in federal agencies. But it also recognizes that Congress can’t possibly anticipate all of the harms that would come to the American public in the future. And so in 1944, we could not have imagined that you would have a virus that was so infectious, that was aerosolized, that it could evade immune escape, that it was something that caused nearly a million deaths in the United States. Wouldn’t the public want the CDC to be able to act nimbly and decisively in handling that problem? Wouldn’t anybody? Whether you’re conservative or or liberal, Democrat or Republican, it’s just at this point, it’s hard to understand the antipathy to public health agencies, to CDC, to science itself, to evidence itself.

Advertisement
Advertisement
Advertisement

S3: So that actually leads me to the Biden administration’s response, which essentially is a wholly political and almost completely disaggregated from public health response. And they have, you know, released a very I think you called it a nuanced statement about how, you know, the decision is wrong. But this is an almost completely political set of questions now about do you risk appealing and then having it affirmed at the 11th Circuit or do you just let it lie around like a loaded gun to be used by someone else? I saw you were quoted in The New York Times this week saying you’re in a position of having two horrible choices. You either risk forever taking away the CDC’s power or you let what is feels like a lot less decision. Just chill the CDC from doing things it needs to do in the future. This is a lose lose for the administration.

S1: For Lugar, Hobson’s choice. Yeah, it’s it’s a lose lose. I mean, I’ve spent quite a bit of time talking to the White House about this and the Justice Department. It’s it is a hard decision for them. You know, essentially, they want they want their cake and eat it, too. They want to publicly state that they don’t accept Judge Musil’s arguments at all and that CDC absolutely does have this power. But they don’t want to risk an adverse ruling in the 11th Circuit. And if it went to the Supreme Court, I kind of suspect. Well, maybe this is wishful thinking, Dahlia. But I kind of suspect the Supreme Court would uphold the mask mandate because it’s so central to the prevention of of the interstate transmission of disease. But they would nonetheless significantly narrow the Public Health Service Act and get to the edge of declaring a major questions doctrine. So those are, you know, incredibly important legal risks. But they’re not just legal risks, their public health risks if you get an adverse ruling. And the other reason is that CDC was probably going to drop this mandate en masse May 3rd anyway before the drama of the courts.

Advertisement
Advertisement
Advertisement

S3: But, Larry, I feel like this goes to another point you’ve been making, I think, since certainly your COVID public statements, which is in some sense the chaos is the point. In some sense, it’s very, very useful if you oppose the CDC, you oppose agency law and a regulatory state to just have complete chaos. And I think we could agree, if nothing else, even if we all thought that the mask mandate was going to not be in effect on May 3rd, I think we can agree that the confusion of the airlines making the determination, this complete insanity, where you’ve got folks, you know, in midair ripping off their masks and flight attendants who are just delighted that they do not have to enforce this anymore. I mean, it just seems to me this is the opposite of, you know, a well-handled, orderly public health action. And I feel as though you’ve been saying you’ve used the word COVID culture war. And you’ve mentioned again on the show today how politicized this is. But it does feel as though every time you establish more chaos in the system, it’s slightly erodes trust in the CDC, it slightly erodes trust in public health. And that feels like a massive, massive losing battle here.

S1: Wow. You said it so well, Dahlia. Absolutely. You know, as I said at the beginning of the show, I mean, it’s hard for me to think of a more ruinous way for the COVID era masking to end than at the hand of a single federal judge in Florida. And, you know, that’s why, you know, federal judges shouldn’t be making these decisions, because it has introduced utter chaos, I guess, by design, because she could have waited and this would have lapsed. And so you see people in the air more more verbal abuse, more and more people, even violent people who are vulnerable, immunocompromised, the elderly, children under five who can’t be vaccinated, all, you know, scared to death about, you know, flying as people are ripping their masks off. And then some most airlines not enforcing it. Some are enforcing it. It’s just utter chaos. And if that was the judge’s intent, she was successful. But the better way would have been to allow career scientists to evaluate the evidence, look to see if we have our hospitals filling up and then making a planned, orderly decision to either lift or continue the mandate. Wouldn’t that have been a much better outcome? But that’s not the America we live in now. The America we live in is, you know, just no matter what the cost. And in this case, the cost is death. You just stand by your your guns and you make your political point. If we can’t come together in a once in a lifetime health crisis, I don’t know when we can.

Advertisement
Advertisement
Advertisement

S3: I want to ask you one last sort of big picture question, because, of course, as soon as this decision came down on Monday, we had the now typical folks on the left saying, how does one unelected judge make a decision that invalidates an entire, you know, national policy? And, of course, folks on the right saying, oh, come on, you loved it when it was the travel ban. Right. And I think we have this existential question now about nationwide injunctions when they’re legitimate, when they’re not. Yeah, it feels like it’s descended into another chaos is the point kind of welter of both sides ism. But I wonder if you have, at least for our listeners, some kind of neutral, principled way to think about nationwide injunctions, single district court judges with lifetime tenure striking down entire policies? Or is it just one of those? Depends on who’s ox is gored. There’s no neutral principle left.

S1: You either allow a federal judge to strike something down nationally. You don’t. And you can’t take sides depending upon whether you know, you you like this policy or you don’t like that policy. So we have to have a neutral principle in our democracy. You know, a lot of people have told me, including even in the Biden administration, they said, well, you know, this is such a poorly recent decision. It was she was clearly just making, you know, political points. Why don’t we just ignore what she said and and do it anyway? And my answer to that is, no. You have to abide by the rule of law. You have to swallow hard. You either appeal it or you comply with it. And we’ve been down this road before with COVID and the Biden administration. You’ll remember that the housing eviction moratorium came before the Supreme Court, and it was very similar to this because it was about to expire. The Supreme Court upheld it, but it clearly signaled to the President Biden, you know, let this expire and don’t test us. And when that happened, there was a big political debate in the White House. I weighed in and I said, you’ve got to no matter what you think about the eviction moratorium, you’ve got to respect what the Supreme Court said. They refused to. It went back to the court. The court struck it down with a very negative precedent. And now forever more housing eviction moratoriums are not in the toolbox of CDC. So the lesson is, no matter what you agree or disagree with, you swallow hard and you abide by the rule of law.

Advertisement
Advertisement
Advertisement

S3: I think that you’re at least hinting at something that did bother me about the coverage of Judge Mizell and the very personal, you know, oh, she’s only 33 and she, you know.

S1: Was ranked on unqualified.

S3: Ranked and qualified and had only ever tried two cases. And in both cases, she was in law school like I think that dumping on her as a dummy doesn’t get us where we want to go. Right. And I think that in some sense, whatever you think of this opinion, not a dummy and not super helpful to turn this into a festival of trashing a young female Trump judge, this is, as you’ve said, a much, much, much larger, more existential problem, about decades long conservative legal movement effort to trash the regulatory state, you know, to to hobble Chevron deference, to hobble any effort for agencies to do anything. And so a not useful exercise here is to turn it into kind of a cartoonish slap down of a single judge, right?

S1: Yeah. I mean, you’re of course you’re right. I have to admit, I’ve been a little bit guilty of that because it was too tempting. But you you’re totally right. You’re totally right. That is the way we should do it. But I think there may be a bigger point here, which is, you know, basically a president shouldn’t appoint somebody after he’s lost the election who’s then ratified on a party line vote after the American Bar Association rates that person unqualified. There’s something wrong with our system that allows that. You know, we now have a CDC because of this opinion and and others before it that’s literally gun shy about doing some. Big and important to protect the American public. And so I think conservatives should should be careful what they wish for, because one day there will be a really major threat to America. And you don’t want CDC to be different. You want them to act nimbly and decisively. And all that’s happened during COVID is going to mean the opposite, that CDC will be reluctant to act when we need the most.

Advertisement
Advertisement
Advertisement

S3: Professor Lawrence Gostin is professor of global health law at Georgetown University. He also directs the World Health Organization’s Center on Global Health Law. And his 2021 book is Global Health Security A Blueprint for the Future? Larry, I cannot think of anybody who would have been a better discussant with a bunch of of issues that on one level feel almost hard to identify why it’s important and that and another level feels like it’s absolutely everything we should be talking about right now. So thank you so, so much for giving us your time today.

S1: Well, thank you, Dahlia It’s such a pleasure to talk with you, this really fascinating conversation.

S3: And that is a wrap for this episode of Amicus the Holy Cow. We taped it in Studio Edition. Thank you so much for listening and thank you for all your letters and questions. You can always keep in touch with us at Amicus at Slate.com, or you can find us at Facebook.com slash Amicus podcast. Today’s show was produced by Shaina Roth. Alicia montgomery is executive producer of Sleep Podcasts, and we will be back with another episode of Amicus in two short weeks. So here we have arrived. It feels like 500 years since the last time we talked. Mark But it is the slate plus top secret super special members only chat between you. Mark Joseph Stern cover of all good things at Slate and me. Dahlia Lithwick exhausted but in studio. How are you?

S4: Hi Dahlia. It does feel like it’s been 500 years since we last talked, but the great thing is it’ll feel like a thousand years between now and the next two weeks. So the way that time works at the end of each SCOTUS term, as many of our listeners will know, is that every day becomes exponentially longer the closer you get to the end of the term. So we’re entering that kind of, you know, bizarre space time continuum, and I am excited to be tortured for thousands of hours in each 24 hour period.

Advertisement
Advertisement
Advertisement

S3: And here’s where we add one other factual note, which is that we are taping Wednesday night. There may be decisions on Thursday, so it’s actually going to be another 10,000 years between the taping of this and the listening. And there it is. Mark, you wrote about a death penalty case that was fairly shocking at a lot of levels and it got slightly overshadowed by the masking decision that we talked about in the main show. But do you want to talk a little bit about the Supreme Court and her recent death?

S4: What else would I want to be talking about on this beautiful Wednesday? Early evening? No, I think this is an important decision or non-decision, if only because it illustrates a problem that you and I and others on this show have been discussing for a long time, which is that the Supreme Court doesn’t have to formally overturn progressive precedents in order to change the law. It can just stop enforcing those precedents. So what happened here was there was a capital trial for a black man accused of murder, so he was potentially eligible for the death penalty. One of the jurors or prospective jurors said when questioned that basically he thought black people were violence, that black people were more violent than white people, that black people were the more violent races. By the way, you’ll be shocked to learn that this prospective juror, he was white. And I know your face right now, the shock. And he said, you know, I don’t think that this will affect my decision making, but I’ve taken criminology classes, I’ve watched shows, I’m familiar with the statistics. And I just know that the black races are the more violent ones. And the defense attorney, to his credit, tried to strike this juror for cause, basically saying he’s racist, he should not sit on this jury. The trial judge refused, said, no, no, no, I’m not letting you strike this guy for cause. So the defense attorney tried to use a peremptory strike, which means you can strike a prospective juror for no reason. You don’t even have to say why. But he was out of them and the judge wouldn’t give him any more. So the judge seated, this guy, this guy’s out on the trial. And the jury, he voted to convict the defendant, a black man. And then in the death phase of the trial, he expressed his views, his belief that this guy, this defendant, was at heightened risk of future violence and that he was so dangerous that he couldn’t be trusted not to commit violence in the future, which is the question that essentially makes someone eligible for for the death penalty in Texas. And then this defendant was sentenced to death. So just to kind of wrap it all together in a bow, white juror believes that black people are more violent. White juror convicts black man. White juror renders black man eligible for the death penalty exclusively because he thinks that he will be violent, based quite possibly on his own prejudices. And the defendant and his attorney appealed to the Supreme Court and say, yo, this is not acceptable because under five, six, seven decades of precedent, the Supreme Court has said you cannot allow racial bias to infect criminal trials, to infect the justice system itself. And it is especially pernicious when it infects the jury pool because a jury has to, under the Constitution, be impartial. It cannot come with preconceived biases, especially biases about race. And the Supreme Court has held over and over again that any suggestion of racism in the jury is enough to throw out a conviction, throw out a judgment, require a new trial, because it is just fundamentally and always unacceptable to have a conviction and especially a death sentence that was tainted by racism. And yet only three justices would have taken up this case and given this guy a shot at a new trial and an opportunity to have an. Biased jury decide whether he is guilty or not guilty instead. All six conservative justices voted against taking up the case and that forced Justice Sotomayor joined by Breyer and Kagan to issue an impassioned and, I think very sharp dissent, really kind of calling out the majority for not enforcing all of these precedents that are important, I think, and kind of vital to holding up the legitimacy of a justice system, especially in Texas, which is very active in imposing the death penalty. And as we all know, the death penalty is just shot through with racism. So this is just another depressing example of the court sort of allowing progressive precedents to die on the vine by refusing to acknowledge their existence, let alone enforcing them where appropriate.

Advertisement
Advertisement
Advertisement

S3: That latter point you make so powerfully, Mark, in your piece about this, you know, we’re all hyper focused on the shadow docket. Even John Roberts is having his now qualms about the shadow docket. But there’s another way to just make new law, which is to not enforce existing law and to say nothing about it. And I feel like this is almost the mirror image of the court making new law in unsigned one line orders, which is making new law by just ignoring the status quo and not taking up a case.

S4: Yeah. I mean, it takes fortitude and I guess a little bit of courage to stick your neck out and overturn a decision. So why not just ignore it? And I mean, at its worst, the conservative majority will will pretend to apply a liberal precedent while effectively gutting it. And that’s what the court did in the Juvenile Life Without Parole case, where the majority essentially just overturn these precedents that had strictly limited juvenile life without parole and lied about what it was doing. And I find it very difficult to accept that the Supreme Court has any right to alter the law, to drag it far, you know, in the conservative direction, and not even be honest with the American people and say this is what we’re doing. We want to be honest. And, you know, I will say just a footnote in that decision I’m talking about. Clarence Thomas wrote separately, to be honest, and I will give him credit for that. Clarence Thomas was the only conservative who wrote separately saying, Oh, yeah, we’re overturning these liberal precedents. We are absolutely gutting them. And we should just admit that we’re doing it, because I don’t understand why my colleagues are beating around the bush. So he may often be loathsome, but at least he’s candid.

Advertisement
Advertisement
Advertisement

S3: The quiet parts loud both in the case and credit to Justice Thomas. I guess if we’re talking about overturning liberal precedents, the other thing I want you to turn to, if you don’t mind, is Roe v Wade, which I think most of us can agree, is I don’t know if it’s on the chopping block or if it’s on the block of massive surgery, but it’s on some block. We will know in June. But you wrote a really, really interesting piece about how while everybody’s running around saying what to do, what to do. Connecticut has a plan.

S4: Yes. I would not have guessed that Connecticut would be the one to step up to the forefront. But there you go. You know, a bunch of states like California and Colorado are enshrining abortion rights into their laws, ensuring that people have access to clinics, expanding the kinds of health care providers who can perform abortions or prescribed medication abortions. But no other state has really addressed this looming problem of red state legislatures trying to shut down abortion clinics nationwide and persecute individuals who perform abortions even beyond their own state borders. So we are currently seeing this new phase of the abortion battle in states like Missouri, where lawmakers are considering these vigilante style bills that will allow people in Missouri to file lawsuits against individuals who perform abortions elsewhere in other states. And it is an open question whether those states could be obligated to enforce those judgments under existing law. You know, no state as we speak has any kind of protection on the book that shields its its own abortion providers from other states lawsuits. And this is all sort of uncharted territory. So Connecticut has stepped up to the plate and they have the House has passed and the Senate will soon pass a really sweeping bill that takes kind of proactive response here and shields abortion providers, abortion patients, abortion abettors from any kind of civil suit or civil judgment that is issued against them from another state or in another state’s courts. It bars Connecticut courts from ever enforcing or even entertaining those suits. It bars Connecticut courts from even investigating individuals who perform abortions as long as they are legal in the state of Connecticut. If another state claims that, hey, you know where Missouri, our Missouri resident went to get an abortion in Connecticut? We want to punish the abortion provider because that abortion provider in Connecticut murdered a missouri fetus. That kind of situation is going to arise and Connecticut has now stopped it before it even happens by saying, no, no, no. If a provider performs an abortion that’s legal in Connecticut, then no one gets to touch them. And Missouri cannot try to reach out and use our civil and criminal justice systems to punish that provider. And the law prohibits Connecticut from extraditing someone who is accused of performing an abortion that’s illegal elsewhere, but legal in Connecticut. So a lot of swirling issues. You can spend hours poring over this bill. It’s all very complicated legal stuff, but it is the first kind of comprehensive effort that we’ve seen by a blue state to become a true abortion sanctuary, not only ensuring that everyone can get access to reproductive health care, but ensuring that those providers cannot be punished by another state that accuses them of murdering a fetus or, you know, abetting an illegal abortion. All of that stuff is totally invalid under Connecticut law. The moment that this bill passes and takes effect.

Advertisement
Advertisement
Advertisement

S3: I was very struck, Mark, and I think maybe you’ve just answered it in your piece by the sense that you appreciated not just the novelty, but the scope of what Connecticut was trying to do. You know that it’s not just we’re going to make it possible for people in California to get abortions, but we are going to do something defensive on the scale of SB eight and its progeny. That is going to sort of think on a very national strategic scale.

S4: Yes. And I should add my favorite provision of the bill, actually, which is that if you get sued under a law like SB eight, which is this Texas vigilante law that lets random people sue abortion providers and abettors for $10,000, you can countersue in Connecticut court and you can collect damages from the person who sued you for damages. And you can collect attorney’s fees both from Texas and from Connecticut. All of the attorneys fees that you had to spend defending yourself, you get to collect from the person, the bounty hunter who tried to take you down. And I think that is the quintessential kind of defensive move that blue states need to consider. I will say an earlier draft of the bill provided treble damages. So you couldn’t just collect the same amount of damages that the Texas court demanded. You could collect three times that, but Democrats decided to just make it equal to make the playing field level, which I understand. But I think it would have been really fun to have Connecticut courts effectively bankrupting vigilante anti-abortion activists in Texas.

S3: It does feel like a great big civil procedure smackdown of kind of epic proportions, doesn’t it?

Advertisement
Advertisement
Advertisement

S4: Yeah, absolutely. It’s giving me kind of nightmarish flashbacks to my own civil procedure exam and won out.

S3: Right. That’s. That’s why I was getting those high fives as we spoke. You and I wrote together. Last week about a case that’s coming before the court next week that has to do with school prayer. And I wonder if we can talk about it just for a minute, because it feels like I don’t know if it’s maybe not getting as much attention as it ought. And the case is Kennedy versus Bremerton School District, you and Tara.

S4: Oh, I don’t really want to, but I guess I will. So this is the big school prayer case of this term, and I just feel like it’s important to lay out the facts as they exist in the real world, because the the plaintiffs have created an alternate universe with a bunch of fake facts. So what really happened is that there was a coach named Coach Kennedy at a public school who began this tradition, quote unquote, of hosting massive prayer circles with students at the 50 yard line after football games and leading overtly Christian prayers loudly with a bunch of football players at this school event while he was performing his official duties. Tons of Supreme Court precedent says you can’t do that not just because it endorses religion, but because it coerces students into participating in religious rituals that they don’t really believe in. And the record bears this out here. There were parents who said, look, my kids didn’t want to join these prayer circles. My kids don’t share these faiths, but they felt compelled to because they worried and I think quite reasonably, that they would get less time on the field if they didn’t join, that they would be alienated from their friends and fellow players if they didn’t join. Kennedy is told, Can you please just pray in private? Can you please just do this in private? Having it in the middle of the field, in public, as this grand conclusion to the game is becoming a problem. He went to some conservative lawyers and decided to paint himself as a victim, really kind of a martyr. He brought a bunch of media to the school. The other students who liked him and the team began to participate in the prayer circle. Students began to rush onto the field after games. There was an actual stampede where kids were tripping over cables and knocking over the school band members. And it was just an outrageous spectacle because Kennedy had hijacked this school event for his own religious purposes, and he’s still sued, alleging a violation of his First Amendment rights. And the Supreme Court still took up this case and has framed it as a question of whether public school teachers have a right to, quote, quiet private prayer on school campus. And I just want to be clear. That’s not what happened. This prayer was not quiet. It was not private. It was loud. It was a spectacle. It was during official duties. And it was extremely, if somewhat subtly, coercive to young children, to adolescents who face enormous peer pressure to join in on what the rest of their team is doing. So I just think it’s a kind of nauseating case, and I find it really repellent that the Supreme Court has taken it up because Coach Kennedy lost in the court below and a Republican conservative judge accused him and his lawyers of lying. And yet the Supreme Court now looks like it’s going to buy into this alternate reality and really expand public school officials ability to host and conduct and sponsor and coerce Christian prayer in public on campus.

Advertisement
Advertisement
Advertisement

S3: And maybe to note that we put in our piece that I think is. At least worth. Centering again in this conversation. One is that without a doubt, the Supreme Court for decades, as you say, has been unbelievably solicitous of the rights of particularly schoolchildren and particularly during school activities, not to feel like outsiders, not to be made to feel as though they’re being coerced. And we can talk about whatever the tests have been, and nobody suggests the tests are completely crisp and clear. But this goes back decades. And I think you and I suggested in the piece it actually goes back to the founding and the concern that schools would be used to indoctrinate children against the interests of their own parents who want to control their religious upbringing. So that’s one. And then I guess and then Mark agrees. And then I think the second is just this creeping, insidious set of claims that every time you try to enforce the establishment clause, you are persecuting martyrs. And you’ve laid that out already. But this really has flipped from we want to use the establishment clause to protect children from sectarian prayer in public school to that effort to be neutral. In public school is now being cast as the oppression of religious worship and belief.

S4: Right. And it’s astonishing how completely the briefs in favor of Coach Kennedy just erase the children. The children are not a part of it. The children are cast to the side. It’s supposed to be their education, but they are just completely eradicated from the picture. And we are left with this poor, sweet little Christian man who just wanted to praise Jesus during the football game. And that is not what’s happening here. And it does not accord with all of these precedents that you’re discussing and all of these concerns going back to the ratification of the Constitution, the First Amendment, about the use of secular institutions and educational institutions to coerce religion. And it’s it’s quite ironic as you gestured toward that in this moment of parental rights panic, in this moment when conservatives are saying that parents need to reassert their ability to guide and control their children’s education. The Supreme Court is poised to say, actually, no, you don’t get to protect your kids from religious coercion at school because the rights of teachers to proselytize is more important than the rights of students to get an education free from proselytizing. And that, frankly, seems sick to me.

S3: Mark Joseph Stern covers courts and the law and state courts and elections and everything that matters for us at Slate.com. Mark, I wish you a good and peaceful two weeks. We’ll talk soon.

S4: See in 30,000 years or so, Dahlia.