0:02

Mr. Chief Justice, may it please the

0:04

court? It's

0:06

an old joke, but when a argued man

0:08

argues against two beautiful ladies like this, they're

0:11

going to have the last word. She

0:15

spoke, not elegantly, but

0:17

with unmistakable clarity. She

0:20

said, I ask

0:22

no favor for my sex. All

0:25

I ask of our brethren is

0:27

that they take their feet off

0:30

our necks. Hello

0:44

and welcome back to Strict Scrutiny, your podcast about

0:47

the Supreme Court and the legal culture that surrounds

0:49

it. We are your hosts. I'm Kate Shaw. I'm

0:51

Leah Litman. And I'm Melissa Murray. And

0:53

the band's all back today for this

0:56

bonus episode on, wait for

0:58

it, the two opinions

1:00

that the court deigned to release today,

1:02

both of which underscore some clear patterns

1:04

at the court, namely that this court

1:07

seems bent on green lighting corruption and

1:09

reversing the Fifth Circuit. We're here for

1:11

one, not here for the other. We

1:14

also wanted to note some concerning district court decisions

1:16

in validating the latest student debt relief

1:19

initiatives that the Biden administration has put

1:21

forth, as well as a really important

1:23

CERT grant. But

1:25

wait, Kate, you're looking at what's going on. What's happening? We

1:29

are still processing in real time some

1:31

breaking news that Bloomberg has just given

1:33

us. And that

1:36

is that it appears that

1:38

the Supreme Court inadvertently posted

1:40

a copy of the Amtala

1:42

disposition on the court's website

1:44

this morning before immediately taking it down.

1:46

I'm sure the two of you were

1:48

on that site refreshing every five seconds.

1:50

Every five seconds. I missed

1:53

it. But you know what? The intrepid team

1:55

at Bloomberg somehow caught what flashed

1:57

and then disappeared, which was... Apparently,

2:00

the court's disposition, and I'm saying disposition

2:02

and not opinion, you know, deliberately, in

2:05

the case involving the federal EMTALA statute,

2:07

that's the case about emergency care for

2:09

pregnancy emergencies, if they happen in states

2:12

like Idaho that have basically full abortion

2:14

bans, but where federal law clearly requires

2:16

care to be provided regardless. So that's

2:18

the EMTALA case. We've talked about it

2:21

a lot. It's one of the ones

2:23

we are the most anticipating and dreading,

2:25

at least coming out of the oral

2:28

argument. What do we think

2:30

we learned from this Bloomberg reporting? So

2:32

Bloomberg is reporting that the decision,

2:35

if this is the actual disposition,

2:37

would dismiss the case as improvidently

2:39

granted. That is to say SCOTUS

2:42

isn't going to decide whether EMTALA

2:44

permits medically necessary emergency abortions to

2:46

protect the health of the mother.

2:49

So we won't get to the

2:51

merits. But by dismissing the case

2:53

as improvidently granted, it would reinstate

2:56

the injunction that the trial court

2:58

had earlier issued that required the

3:00

state to permit hospitals to perform

3:03

medically necessary abortions. So that

3:05

would be a good thing, I guess. It

3:07

would be. And to be clear, we don't

3:09

know whether this is going to be the

3:12

final disposition of the case. This was an

3:14

inadvertent posting, much like the Dobbs

3:16

leak was. That was not

3:18

inadvertent or a momentary posting. Like, sure

3:20

was. Well, we don't know that Martha

3:22

Ann wasn't in the reporter's office just

3:24

uploading documents in order to send up

3:27

a flare. Right. I'm just saying we

3:29

can't rule it out. Or

3:31

maybe this is a Trojan horse. We

3:34

don't we don't know. And again, don't know

3:36

to be clear. We don't know whether this

3:38

is going to be the final disposition of

3:41

this case. But in the event it is,

3:43

we want to prime our listeners for how

3:45

to understand what Bloomberg reports

3:47

the court might do. And

3:50

as Melissa said, like, this is

3:52

good news in that it allows

3:54

women in Idaho to receive life

3:56

and health saving care. But that

3:59

could be temporary. The decision Bloomberg

4:01

described. is not a decision on

4:03

the merits about M.Tala. It does

4:06

not say that M.Tala requires hospitals

4:08

to be able to provide emergency

4:10

and medically necessary abortions. Instead, they

4:12

would be deferring a ruling on

4:15

that, saying, we'll get to this

4:17

later. Maybe. Maybe.

4:19

When's later? Maybe after

4:21

an election.

4:23

Hmm. Yeah, and

4:26

again, to say this again, the court

4:28

might still rule that emergency abortions can

4:30

be banned and hospitals can be required

4:32

to deny women emergency care. We

4:35

don't know whether this is the final disposition or

4:37

the opinion or ruling we will actually get. But

4:39

if we do, this is just

4:41

a pause. We'll get to

4:44

this later. Can I

4:46

just say that if this is what happened

4:48

and if this is the disposition, cert and

4:51

providently granted, we're not going to reach the

4:53

merits just yet, we could reach the merits

4:55

later, maybe after November, 2024. That

4:58

would be so in the Chief

5:01

Justice John Roberts wheelhouse. Remember in

5:03

Dobbs and oral arguments in December,

5:05

2021, how he was

5:07

pushing, pushing, pushing to have the court

5:09

take a compromised position whereby they would

5:12

uphold the Mississippi law that was challenged

5:14

in Dobbs, but they would not formally

5:16

overrule Roe versus Wade, even though those

5:18

two things were utterly inconsistent

5:20

with one another. And

5:23

we speculated then that his

5:25

whole move toward this compromise

5:27

position was really about the

5:29

midterm elections. Same idea here

5:31

if this is exactly what's happening.

5:33

It is. And this would effectively

5:36

be like the medication abortion ruling,

5:38

again saying, just wait until

5:40

after November, 2024. We'll

5:43

get to that Comstock Act, and we

5:45

will get to medically necessary abortions at

5:47

some point, just not now.

5:50

And that is- Don't worry about it,

5:52

ladies. You can hang up your voter registration

5:54

cards. We've got it handled. Exactly,

5:57

exactly. No need to go to the polls,

5:59

ladies. It's all good.

6:01

Exactly. Calm down, you hysterical

6:03

lady parts. Nothing

6:05

to see here. No need for a

6:07

November. We got it. That well

6:09

could be the strategy. So we have these

6:12

two huge abortion cases, and the Supreme Court

6:15

maybe, if again, this is what we are going to see

6:17

as the final outcome in this case tomorrow or Friday, the

6:20

court could have on its dance

6:22

card two abortion decisions in which

6:24

it declined to yank away medication

6:27

abortion, and it declined to remove the

6:29

protections of federal law from women experiencing

6:32

pregnancy emergencies. And it definitely does seem

6:34

as though the best way to read

6:36

those two events is the

6:38

court trying to lower the temperature on

6:41

abortion around the election. And

6:43

that cannot be how these two things

6:45

land. It's critical. Because this is just

6:47

about when, right? This is not if.

6:49

Yes. So stay vigilant. Don't

6:52

let them gaslight you. Also

6:54

just can I say one other thing about timing. If

6:56

in fact this is what happens, it's

6:58

so crassly political, I think.

7:00

Because a dig, a dismissal,

7:02

as in providently granted, cases

7:05

argued April 24th, I think, it

7:08

should not take two months for the justices

7:10

to decide, well, this was a premature moment

7:12

to intervene in this case. We should wait

7:15

for lower court proceedings to further develop, et

7:17

cetera. Usually that would happen at conference, and

7:19

they would dismiss it within a week or

7:21

two. So it looks to me

7:24

like they sat on it for two months

7:26

trying to figure out some off ramp, and

7:28

this is what they came up with. So

7:30

can I remind our listeners about a much,

7:32

much earlier dig that was, again, sort of

7:34

along similar lines. So it's history

7:36

and tradition story hour listeners. Back

7:39

in 1955, just a year after the

7:41

court decided Brown versus Board of Education,

7:43

another case came to the court called

7:45

Name versus Name, which is a challenge

7:47

to Virginia's Racial Integrity Act, which was

7:50

the law that banned interracial marriage. And

7:52

the court initially granted certiorari. And then

7:55

apparently memos were circulated. And Tom Clark, who

7:57

was a justice at the time, wrote in

7:59

one of his. his memos to his chamber

8:01

staff that this case, name

8:04

versus name, was a quote unquote

8:06

ticking time bomb because everybody knew

8:08

that the real fear behind integration

8:10

wasn't the prospect of integrated classrooms,

8:13

but that integrated classrooms would in

8:15

time lead to integrated bedrooms. And

8:17

so the court, perhaps

8:19

recognizing that massive resistance was already

8:21

an issue and that the South

8:24

would literally lose their minds if

8:26

the court decided name versus name,

8:29

decided to dig it. cert was improvitantly granted and

8:31

this got kicked down the road to 1967

8:33

when finally the

8:36

court invalidated Virginia's miscegenation ban and

8:38

then was really kind of doing

8:40

a cleanup job on all of

8:42

those recalcitrant Southern states. So we've

8:45

seen this before. Yes. And

8:47

just some additional possible explanations for

8:49

this delay. You know, one is

8:52

very possible there's negotiations happening behind

8:54

the scenes and there were not

8:56

sufficient votes for a dig, you

8:59

know, immediately after conference. Second

9:01

also possible that Sam Alito has

9:03

in the works an absolute howler

9:05

of a dissent that is going

9:07

to delay any possible

9:09

posting of said disposition. And

9:12

then finally, I think we also have to put on

9:14

the table that the court is saving this because it

9:16

will get covered as the court permitting emergency

9:19

medically necessary abortions. And so timing

9:21

that ruling together with the rulings

9:23

we are concerned about in the

9:26

immunity decision, the January 6 case,

9:28

the administrative law cases and others

9:30

is a way of tempering the

9:33

media coverage. One other

9:35

thing, if they did not have to write a

9:37

long opinion about preemption doctrine,

9:40

that's just another reason it is

9:42

outrageous that they are waiting to

9:44

release as many opinions as they

9:46

still are. It is insane. I

9:48

want everyone to read Leah's Times

9:50

op-ed about the unconscionable delay in

9:53

the immunity case every day, twice a

9:55

day if necessary, until that fucking opinion is out in

9:57

the world. And I am sure they are not going

9:59

to realize that. at least tomorrow, because it's debate

10:01

day, and they do not want the immunity

10:03

opinion to drop on the day that the

10:05

presidential debate is happening, because they don't want

10:07

to be headline news. They don't. I

10:10

think it's going to be another quiet day

10:12

Thursday, so they can try to escape attention

10:14

during the presidential debate and then just

10:17

go wild on Friday and maybe Monday.

10:19

We will not let them escape attention,

10:21

however. No, we will not. We

10:24

have some additional breaking news regarding the

10:26

EMTALA decision from Bloomberg. So Bloomberg has

10:29

added some details that I want to

10:31

note. Three justices

10:33

dissented from the dig. Wow.

10:38

Clarence Thomas, Samuel Alito, and

10:40

Neil Gorsuch, obviously. Justice Kagan

10:43

apparently wrote separately in a concurring

10:45

opinion. Justice Jackson wrote

10:48

separately to say, quote,

10:50

today's decision is not a victory

10:52

for pregnant patients. It is delay.

10:56

Yes, queen. Girl, keep that

10:58

line in if this is,

11:00

indeed, the disposition. Keep

11:02

it in. Bloomberg

11:04

really keeps it coming. Justice

11:06

Jackson, for the win. So

11:17

should we talk about the opinions that we actually did

11:19

get? Yes, sure. All right. So

11:21

first up is Snyder versus United

11:23

States. This was a case about

11:26

government corruption. Crickets.

11:30

The court and government corruption, what is there

11:32

to say or do? Well,

11:35

Leah, the court in a

11:37

six to three opinion that

11:39

split along familiar ideological lines

11:41

narrowly interpreted yet another anti-corruption

11:43

statute to make it easier

11:45

for government officials to be

11:47

corrupt. I know this is

11:49

truly shocking from this corruption

11:51

forward court. But let

11:53

me just say. Make public corruption great again.

11:55

Yes. We say yet

11:58

another anti-corruption statute because this court. has

12:00

actually been on a real tear in

12:02

the last couple of years in limiting

12:04

the reach of anti-corruption statutes. Basically, they

12:07

have eliminated the government's ability to prosecute

12:09

anything that falls short of extremely

12:12

cartoonish quid pro quo

12:14

bribes. So just

12:16

a few cases that are part of this

12:18

trend. Like, Kate, why don't you get us

12:20

started? Because I know you've written a ton

12:23

about this in your partisanship creep paper. I

12:25

did. And honestly, it would take us the

12:27

whole episode to really talk through the development

12:29

in this area. Just to mention a couple

12:31

that people might remember. McDonald versus United States

12:33

was a case in which the court overturned

12:35

the conviction of former Virginia governor, Bob McDonald,

12:37

for accepting lavish gifts, including money for his

12:40

daughter's wedding, a Rolex watch,

12:42

lots of other things that were

12:44

given in exchange for the governor making some calls

12:46

and arranging meetings in order to help a local

12:48

businessman. Court said, nope, that kind of conduct cannot

12:50

be prosecuted. Then we had Kelly versus United States,

12:53

which is a case in which the court overturned

12:55

the convictions of several New Jersey officials

12:58

related to Bridgegate. That was then Governor

13:00

Chris Christie and his administration's decision to

13:02

shut down lanes on the GW Bridge

13:04

as political retaliation for another official not

13:07

supporting Christie's reelection bid. Again,

13:09

the court said, that wasn't corruption that

13:11

could be prosecuted. We had Chiminelli. We

13:13

had Percoco. Earlier, we had Sun Diamond.

13:16

All of these cases involve different

13:18

statutes and different underlying conduct, but

13:20

the exact same bottom line conclusion,

13:22

which is, none of this

13:24

is conduct that the federal law can reach

13:26

and can criminalize. It

13:29

is kind of this game of whack-a-mole

13:31

in which the court strikes down the

13:33

use of particular federal anti-corruption statutes. Federal

13:35

prosecutors find another statute to charge egregious

13:37

corrupt conduct under, and the court also

13:40

either strikes down or narrows that application

13:42

of the statute until there is almost

13:44

nothing standing. And we got another installment

13:47

in that effort today. So

13:50

this case, Snyder versus United States, concerned

13:52

one of the last remaining anti-corruption statutes,

13:54

18 USC section 666, not

13:57

my choice, which prohibits state and

13:59

local officials. from, quote unquote, corruptly

14:01

soliciting, accepting, or agreeing to accept

14:04

anything of value from any person intended

14:06

to be influenced or rewarded for an

14:09

official act. The specific legal

14:11

question here was whether accepting a gift

14:13

or, in this case, a gratuity or

14:15

reward for an official

14:17

act violates the statute. So this isn't

14:19

bribery, which happens before the official act.

14:22

In this kind of scenario, the official

14:24

takes a gift or a reward without

14:26

some kind of ex ante agreement that

14:29

promises the gift in exchange for the

14:31

official act, but where the gift is

14:33

in exchange for the act, right? So

14:36

in this particular case, an

14:38

Indiana mayor had awarded a million dollar

14:40

trucking contract to a trucking company, and

14:43

the trucking company later gave him more than

14:45

$10,000 for consulting services, or

14:49

maybe just as a gratuity. The

14:52

US federal government said that that

14:54

was corruptly accepting something of value

14:56

for the purpose of being rewarded

14:58

for the earlier act, giving this

15:00

trucking contract. And guess what

15:03

the corruption forward Supreme Court said?

15:06

No, because every government official is entitled

15:08

to at least one emotional support billionaire

15:11

to provide them gifts, gratuities, consulting services,

15:13

and they need to be able to

15:15

accept things of value from said emotional

15:18

support billionaires. So the court split, as

15:20

we said, along six to three ideological

15:22

lines with Justice Kavanaugh writing for the

15:25

six Republican appointees, and Justice Jackson writing

15:27

the dissent for the three Democratic appointees.

15:30

Can I ask a quick question, which is, do we

15:32

think that even this shameless court understood that you just

15:34

could not have Clarence Thomas

15:36

write the opinion saying yes? The

15:38

bench is getting really small for

15:40

the anti-corruption cases. Among

15:44

the ones in the majority, you definitely

15:46

can't have Thomas, you probably can't have

15:48

Alito. So I guess Kavanaugh is relatively

15:50

clean on this front right now, so

15:52

I guess this is how he gets

15:54

the opinion. You're like, okay, so

15:56

Brett's clean, Amy's clean, and I hate Neil, so

15:59

you Brett. Oh,

16:01

but Neil has an incredibly annoying concurrence, which

16:03

we will never think about. Yes,

16:05

of course. So he did get his say. But

16:07

yeah, so this is Kavanaugh opinion. I mean, I

16:10

guess I want to reserve judgment on that until

16:12

I see who's writing the January 6th Fisher case,

16:14

because if they assign that

16:16

bad boy to Alito or Thomas, then

16:18

that's a sign there is actually no

16:20

shame or virgonia at the corner. There's

16:22

no virgonia. Exactly. Yeah, okay, all right,

16:24

fine. Let's reserve judgment. I think that's

16:26

right. Kavanaugh's opinion starts with the baseline

16:29

view that while some gratuities might be

16:31

problematic, others are commonplace

16:33

and might be innocuous. The

16:36

opinion then proceeds to make a

16:38

remarkably a textualist, some might even

16:40

say anti-textualist move in which it

16:42

essentially says, look, this provision regulating

16:44

gratuities to state and local officials

16:46

has some things in common with

16:49

the anti-bribery provision applicable to federal

16:51

officials, but we're not going

16:53

to actually treat it like an anti-bribery statute. We're

16:56

going to do that, even though

16:58

the provision, as we've noted, has

17:00

some obvious similarities with the separate

17:02

provision regarding federal gratuities. Textualism.

17:06

Can I just say though, you said, Melissa, the

17:08

opinion opens by noting that there might be some

17:10

problematic gratuities, but there are lots that might be

17:12

innocuous. And then it lists a whole bunch of

17:14

innocuous examples like an end of your gift basket

17:16

to a child's public school teacher, a college

17:18

dean giving a sweatshirt to a city council

17:21

member. Or like some students taking

17:23

a professor to Chipotle. Okay. And

17:25

also to a state, so yes, it is like the

17:27

most breathless. It's like, what about giving somebody a hundred

17:29

dollars? Wait, wait, wait, do it in your breath voice.

17:31

Do it in your breath voice. I don't have air

17:34

colder tongue glasses on. No, like, it only, it only

17:36

really. Wait, wait, okay, fine.

17:38

I will actually read it. Do it, read it, read

17:41

it. But then Jackson actually goes off right on.

17:44

She disparagingly references burrito bowls.

17:47

Oh, Leah, nice sunglasses. I love those.

17:50

Okay, fine. So let me, let

17:52

me, let me try to do my Kavanaugh voice. This

17:54

is like a little, a little Dadaist poetry. I don't

17:56

have my sunglasses in my little recording piece. Some of

17:58

us came ready. That's your fault. Oh

18:01

my god, I do. Okay, here we go.

18:05

All right, it's Strixkirtney beat poetry.

18:07

Strixkirtney's poetry. Okay, go Brett. I

18:09

like this. All right, let's

18:11

do it. Okay, so,

18:13

is $100 Dunkin Donuts gift card for a trash

18:15

collector wrongful? What

18:18

about a $200 Nike gift card for a

18:20

county commissioner who voted to fund new school

18:22

athletic facilities? Could

18:24

students take their college professor out to Chipotle for

18:26

an end of term celebration? And

18:30

if so, would it somehow become criminal

18:32

to take the professor for a steak

18:34

dinner? And could they order guac because

18:36

guac is extra? This

18:40

opinion is extra. I

18:43

love Jackson. She's

18:46

just like, oh, we're talking about fucking

18:48

burrito bowls. Okay, well. All

18:51

right, so yeah, so that's so anyway, but the point

18:53

I was actually gonna make here is that he lists

18:55

these like, that's actually a later passage earlier. He's

18:57

also talking about the like gift card for the school teacher.

19:00

But the point is this case

19:02

involved a $13,000 payment,

19:05

not a Chipotle

19:07

burrito. Like come on, Brett.

19:09

Okay, time the fuck out Kate. Who among us

19:11

hasn't given our kids teacher a $13,000 trucking contract?

19:17

Who hasn't done that? Yeah, it's like the

19:19

world these people. Wait,

19:21

wait, wait. Do you remember the oral argument? Oh, yes.

19:24

I'm not surprised at all by this. Oh,

19:26

at these examples. The oral argument like the

19:28

internet little Washington giving a tip to my

19:30

plastic surgeon like all of this is like they

19:32

were just clowning. I'm not remembering though. Neil did somebody

19:34

did bring up Neil. Neil brought up Chipotle at

19:37

the argument, right? Maybe this is a cheesecake

19:39

factory. Yeah. Oh, that's right. Yes.

19:42

Chipotle is all Brett. All right, we're getting a little far

19:44

afield. Okay, let's go back to the

19:46

opinion. We're getting a little far afield

19:48

from anti-corruption. Correct. Much, much like

19:50

the court is. I think they want

19:53

us to write like that. Yes, is I'm

19:55

sure the point because like what they are

19:57

doing here is so dystopic, right? Like, so

19:59

it is like funny. It is preposterous, but

20:01

they're essentially making corruption and even egregious corruption

20:04

Insulated from criminal accountability as a matter of

20:06

federal law So Kavanaugh does this using one

20:08

of his like now sort of go-tos, which

20:10

is like a list sometimes with bullets sometimes

20:12

without There's like invisible bullets, I think on

20:14

this list, but he says text

20:17

statutory history statutory structure statutory Punishments federalism fair

20:19

notice These are these are all the reasons

20:21

he gives for finding that this statute cannot

20:23

be applied to reach the conduct at issue

20:25

here But I have to say I don't

20:28

know if you guys felt this way reading

20:30

the opinion his heart isn't even in it

20:33

He's like I think the vibes are off Yes Applying

20:35

this law this way and that's really

20:37

what the case is about and he

20:39

sort of tries to like make arguments

20:41

grounded in These like categories, but I

20:44

don't think he even has convinced himself

20:46

quite honestly. It's really just the vibes

20:48

Yes, the Justice Gorsuch concurrence

20:50

can basically be boiled down to

20:52

one thing He's just like guys

20:54

this whole decision is really about the rule

20:57

of lenity and the rule of lenity is

20:59

a canon of statutory construction that basically says

21:01

we interpret vague criminal statutes in favor of

21:03

the accused the defendant and so I guess

21:06

in this case This

21:08

statute is weirdly vague and we should

21:10

interpret it in the light that is

21:12

most favorable to mr. Snyder the government

21:14

official receiving the $13,000 tip for

21:19

awarding the contract which is all

21:21

apparently fine and So

21:24

basically the court 6-3 went all in

21:26

on the just the tip theory of

21:28

government That's also, you know,

21:30

they the bottom line of this case

21:32

Um, but now on to the good

21:34

opinion in the case, which is Justice

21:36

Jackson's dissent and it absolutely hammers the

21:38

majority so What

21:40

so pointed and so

21:42

snarky? Okay, and it just

21:44

reminds me of Steele Magnolia's like yeah

21:47

point and Steele Magnolia's where what

21:49

I think it's like I forget which one it is was

21:51

some like if you have nothing nice to say come sit

21:53

next to me I want to come

21:55

sit next to her. I know I know

21:57

me too. Okay, so there was one line

21:59

there were many lines But let's start with

22:01

that with this one, quote, Snyder's absurd and

22:03

a textual reading of the statute is one

22:05

only today's court could love. End

22:07

quote. Oh, really, girl? Why is

22:10

that? Why would only

22:12

this court love this? Could it

22:14

have something to do with the

22:16

free PJ trips they get as

22:18

gratuities for allowing emotional support billionaires

22:20

to spend money influencing officials? I

22:22

don't know. Perhaps. So

22:24

this dissent is really,

22:27

I love it

22:30

so much, literally injected into

22:32

my veins. It accuses the court of

22:34

relying on policy objections to these kinds

22:37

of prosecutions. She notes, quote, both the

22:39

majority and Snyder suggest that interpreting section

22:41

666 to cover

22:43

gratuities is problematic because it gives federal

22:46

prosecutors unwarranted power to allege crimes that

22:48

should be handled at the state level.

22:50

But woulds, coulds, and shoulds of this

22:53

nature must be addressed across the street

22:55

with Congress, not in the pages of

22:57

the US reports? End quote. Hello,

23:00

Justice Alito. It seems like

23:02

you've been reserved some of

23:04

your own crap. Congress

23:07

should get in here, not us. So

23:09

she's correctly, I think, redirecting the

23:12

majority to Congress and saying,

23:14

take it up with them. And she

23:16

mounts a totally straightforward and devastating

23:18

textual case for the government, which

23:21

is the statute prohibits more

23:23

than one thing, one, accepting gifts to

23:25

be influenced, i.e. quid pro quo bargains,

23:28

but also rewarded. That's in the statute,

23:30

and that is gratuitous. The

23:32

Jackson opinion describes the majority as offering

23:34

rank speculation as to why rewarded in

23:36

section 666 might

23:39

mean something other than what it ordinarily

23:41

does, ultimately assigning the word some busy

23:43

work relating to potential defenses to bribery

23:45

charges. It has this amazing transition,

23:47

which is, speaking of tech, I think I'm not going

23:49

to put sunglasses back on, but just imagine they're back

23:51

on for this part, a different kind of sunglasses, like

23:53

actually cool ones. So speaking of

23:55

text, the language of other statutes demonstrates that

23:57

Congress uses the word reward when it wants

23:59

to crimp. and I mean, she's just like

24:01

so disparaging of I think all of these

24:03

like cutesy examples. She says, limits

24:06

within the text of section 666 provide

24:08

fair notice that commonplace gratuities are typically

24:10

not within the statute's reach and they

24:12

suffice to prevent prosecution of

24:15

the gift cards, burrito bowls and steak

24:17

dinners that derail today's decision. So she's

24:19

like, the statute already excludes that you

24:21

absolute morons. One more word

24:23

on Snyder before I do, Murphy, which is I just

24:25

wanted to pose a question, which is Kagan, remember, was

24:28

pretty hard on the government during the oral argument. And

24:30

we had this fear that this might be like a

24:32

nine zero or eight one opinion as many of the

24:34

corruption cases that we talked about a couple of minutes

24:36

ago were. But this one is six

24:38

three. And it honestly feels to me like Jackson's

24:40

dissent was so good that she might have persuaded

24:42

Kagan and I'm not sure where Sotomayor was coming

24:45

out of argument, but at least Kagan to change

24:47

her vote. Does that seem right? It's definitely a

24:49

possibility. I thought Justice Kagan was hard to read

24:51

during the argument. She was definitely

24:53

pressing the federal government on like, where's the

24:55

dividing line? But also she also wrote the

24:57

opinion in the bridge gate case. Like she

24:59

definitely has been skeptical of some of these

25:02

anti-corruption statutes. So anyway, if

25:04

not, I don't know that Jackson of

25:06

dissent is amazing. I'm sure Jackson button

25:08

holder and light girl burrito bowls, seriously.

25:12

And Kagan, which side of this are you

25:14

on? Yeah, you're right. So

25:17

bottom line is, you know, Snyder increases

25:19

state and local grift and graft because

25:21

people who take illegal gratuities and avoid

25:23

making explicit agreements and using the magic

25:25

words of quid pro quo could get

25:27

off scot free, which the closing line

25:29

of Justice Jackson's dissent describes as functionally

25:31

indistinguishable from taking a bribe. Yeah. And

25:33

scot free is a matter of federal

25:35

law. There is still the possibility of

25:37

state and local prosecution. Although when push

25:39

comes to shove, the Supreme Court, I

25:41

think, is going to declare some of

25:44

constitutionally protected from any prosecution by whatever

25:46

level of government. But at least for

25:48

now, this opinion applies only to the

25:50

federal statute. I'm waiting for the

25:52

decision where the bribe is merely political speech. Yeah.

25:54

Yeah. The first of the bribe is first. Yeah.

25:56

I think we're literally like halfway down that path.

25:58

We're going there, getting there. Stay tuned. Murthy

26:13

versus Missouri was decided today. This

26:15

is the jaw-boning case where a

26:17

group of individual citizens and states

26:19

sued various parts of the federal

26:21

government, including the Surgeon General, White

26:23

House, the FBI, and others on

26:25

the ground that the federal government

26:27

had coerced or strong-armed social media

26:29

companies into censoring their content. And

26:32

in particular, this was around COVID

26:34

misinformation or social media posts criticizing

26:36

COVID policies, as well as election

26:38

denialism and misinformation. So in this

26:40

case, Barrett for a six, three

26:42

court tosses the case on standing

26:44

grounds. So in certain respects, this

26:46

is similar to the Mipha Pristone case, right? Gets

26:48

dismissed on standing grounds. We'll talk a little bit

26:50

more about sort of why. But just to say

26:53

one thing at the outset, I think

26:55

that the outcome in this case has very

26:57

important forward-looking implications, which is that the district

26:59

court had initially issued this incredibly broad injunction

27:01

that would have prevented the federal government from

27:03

communicating at all with social media companies. Now,

27:05

the Supreme Court lifted that injunction, so it's

27:07

not in effect now. But if it had

27:09

somehow allowed some kind of injunction like that

27:11

to go into effect, that would

27:14

have really hamstrung the federal government's ability

27:16

to communicate with social media platforms, in

27:18

particular, around the upcoming election, around things

27:21

like election misinformation. And that could be

27:23

genuinely incredibly dangerous to prevent the federal

27:25

government from having these conversations. And this

27:27

standing dismissal means that at least in

27:29

the short term, the federal government is

27:31

not going to be constrained in its

27:33

ability to have these communications with social

27:36

media companies. And the bottom

27:38

line of the court's standing analysis was

27:40

that the plaintiffs in this case hadn't

27:42

shown that their injuries were

27:44

traceable to or caused by anything

27:47

the federal government did. And therefore,

27:50

any future injuries or any future censorship

27:52

was not likely to recur because of

27:54

the federal government. So what Justice

27:57

Barrett says is, quote, this evidence indicates that

27:59

the platform had independent incentives to moderate content

28:01

and often exercise their own judgment. To be

28:03

sure, the record reflects that the government defendants

28:06

played a role in at least some of

28:08

the platform's moderation choices, but the Fifth Circuit,

28:10

by attributing every platform decision at least in

28:12

part to the defendants, glossed over complexities in

28:14

the evidence." There was

28:17

also a really important footnote because while the

28:19

court said the plaintiffs didn't have standing and

28:21

therefore didn't have to address the merits of

28:23

what the district court and Fifth Circuit concluded,

28:26

and those courts said the federal

28:28

government violated the First Amendment, here

28:30

Barrett drops a footnote and says, quote, the

28:32

Fifth Circuit relied on the district court's factual

28:35

findings, many of which unfortunately appear to be

28:37

clearly erroneous, end quote. And then it goes

28:39

through some examples and that if you look

28:41

at the examples, they seem to suggest that

28:44

these justices in the majority also think the

28:46

courts were wrong on the merits of the

28:48

First Amendment claim too. All right,

28:51

so this is not a unanimous decision.

28:53

There was a dissent, Justice Alito wrote

28:55

a dissent in which Justices Thomas and

28:57

Gorsuch joined. In that

28:59

dissent, Justice Alito characterized this case

29:01

as, quote, one of

29:03

the most important free speech cases

29:05

to reach this court in years.

29:08

So much for hyperbole. Anyway, he

29:12

also noted that, quote, what the officials

29:14

did in this case was more subtle

29:16

than the ham-handed censorship found to be

29:18

unconstitutional in Vullo, but it was no

29:20

less coercive. And because of the perpetrator's

29:22

high positions, it was even more dangerous.

29:24

It was blatantly unconstitutional and the country

29:26

may come to regret the court's failure

29:28

to say so. Officials who read today's

29:30

decision together with Vullo will get the

29:32

message. If a coercive campaign is carried

29:34

out with enough sophistication, it may get

29:36

by. This is not a message this

29:38

court should send. And just to remind

29:40

listeners, NRA versus Vullo is a case

29:42

that the court earlier decided unanimously in

29:44

which it reinstated a lawsuit that was

29:46

brought by the National Rifle Association, the

29:48

NRA, alleging that Maria Vullo, a New

29:50

York official, violated the NRA's First Amendment

29:52

rights when she urged banks and insurance

29:54

companies in New York not to do

29:57

business with the NRA in the wake

29:59

of the election. of the Parkland 2018 shooting.

30:02

This dissent by Alito is really conservative

30:04

grievance on steroids. It relies on Jim

30:06

Jordan's weaponization of government House committee report.

30:08

It says, quote, all these victims simply

30:10

wanted to speak out on a question

30:12

of the utmost public importance, end quote.

30:15

And I also wanted to point out that

30:17

the dissent repeatedly cites all

30:19

of this government speech, including tweets,

30:22

in order to establish the merits

30:24

of a First Amendment claim, even

30:26

though if you think back to

30:29

many years ago, or maybe not so

30:31

many years ago, the court's hesitation to

30:33

consider the same when Trump's travel ban

30:35

was challenged on the ground that it

30:37

violated the First Amendment because it was

30:39

motivated by anti-Muslim animus. And

30:42

there, you know, courts were reticent

30:44

to consider statements, including tweets by

30:47

Donald Trump in order to assess the

30:49

First Amendment claim there. I

30:51

mean, the Alito opinion is just like luxuriating

30:53

in these offhand remarks by Jen Psaki during

30:55

press briefings. I mean, there is so much

30:57

absurd invocation of all of these statements. And

30:59

you're right, Leah, it's pretty conspicuous that in

31:01

other contexts, the court is like, nothing to

31:03

see here when it comes to government speech.

31:06

That actually was a striking part of

31:08

the Alito dissent. I mean, it's so

31:11

anti Biden administration. I mean, sort

31:13

of like, this guy was keeping

31:15

a burn book for the whole of the pandemic

31:17

of stuff the Biden administration was doing

31:19

from. Can I say one thing? I haven't, I haven't

31:21

had a chance to like, go sort of line

31:24

by line through this, but there I think

31:27

it's right. It's very, there's individuals who are

31:29

named repeatedly by an official as President Biden.

31:31

And then there's like a gauzy invocation of

31:33

an earlier government and there's a mention of

31:36

2019. So he's much less interested in naming

31:38

and shaming Trump administration officials. It's it's

31:40

it seemed conspicuous on my quick read. I

31:43

think that's exactly right. It has a

31:45

kind of Fox grandpa quality to it.

31:47

I mean, it's just very just anti

31:49

anti Biden. I don't know if like,

31:52

it's a tea leave sort of thing. But

31:55

it did make me wonder when I read it, like,

31:58

what does the immunity decision work? look

32:00

like exactly if he's so clearly naked

32:02

in his distaste for

32:07

the current administration. Yeah, well,

32:09

if he writes anything, I'm so curious. But

32:13

there's no rush. Take your time, guys. OK,

32:16

so just one more small point to make

32:18

about this case, which is that I think that

32:20

the majority opinion has declared that we can still call

32:22

the platform formerly known as Twitter, which

32:24

we basically still do, but the Supreme

32:26

Court agrees. So let me just read a quote

32:28

that says, since the events of the suit, Twitter has

32:30

merged into X Corp and is now known as X.

32:33

For the sake of clarity, we'll refer to these platforms

32:35

as Twitter and Facebook as they were known during the

32:37

vast majority of the events underlying the suit. OK,

32:39

so fine. This is a backward-looking description, but

32:41

I think it's essentially the court telling us

32:43

it's fine. Amy Coney Barrett is. His mama

32:46

called him Twitter. I'mma call him Twitter. Yeah.

32:49

She occasionally makes an OK point. I think we have to give her

32:51

that. So bottom

32:53

line, yet another Fifth Circuit decision

32:55

that is reversed, also reversed on

32:58

standing grounds like the Miffa-Pristone case,

33:00

like a recent case on Biden's

33:02

enforcement guidelines for immigration, like the

33:04

Indian Child Welfare Act case. You

33:07

know, this season on SCOTUS, or maybe

33:09

last season and the season before, cleanup

33:11

on Fifth Circuit seems to be one

33:13

of the running themes. OK. So before

33:15

we go, just wanted to highlight a

33:17

couple of pieces of non-SCOTUS, but really

33:19

important legal news. And one is a

33:21

pair of district court decisions on one

33:24

of President Biden's recent student loan forgiveness

33:26

programs. So these district courts are

33:28

actually, maybe surprisingly, not in the Fifth Circuit. One

33:30

is in Kansas. One is in Missouri. But

33:32

these are two district courts that yesterday

33:35

invalidated the latest Biden student debt relief

33:37

plan. So this is the one that

33:39

the administration announced after the appalling decision

33:41

by the Supreme Court in Biden versus

33:43

Nebraska, which killed Biden's larger loan

33:45

relief effort. So this

33:47

new effort is known as SAVE, the

33:50

Savings on Valuable Education Program. And

33:52

these two district courts, although in

33:54

different ways, both relied on the

33:56

major questions doctrine to invalidate aspects

33:58

of this new law. loan forgiveness

34:00

plan, which really, I think, is

34:02

as clear a confirmation as you

34:04

could want of just what deregulatory

34:06

chaos SCOTUS has created with this

34:08

doctrine. Yeah, and the opinions themselves

34:10

are pretty messy, and

34:12

I think further underscore what a

34:15

shit show the major questions doctrine

34:17

is. So both opinions concede that

34:19

here, the SAVE plan is

34:21

not novel, right? The federal government

34:24

has done loan restructuring and forgiveness

34:26

under this statute before. The statute

34:28

is H-E-A. One decision

34:30

even quotes a passage from the Supreme

34:32

Court's debt relief case in Biden versus

34:34

Nebraska saying this law, H-E-A, unlike the

34:37

Heroes Act, which was the one issue

34:39

in Biden versus Nebraska, authorizes forgiveness. The

34:42

decisions don't explain why this particular loan

34:44

forgiveness program was politically significant. They invalidate

34:46

different parts of the program for different

34:49

reasons. The Kansas court concedes the statute

34:51

authorizes the program, but because it's too

34:53

expensive, strikes it down. It

34:56

says in the court's view, the secretary's longstanding

34:58

interpretation of the statute is the correct one.

35:01

It's just really wild and messy,

35:03

and I think all goes back

35:05

to the weirdness

35:07

of major questions and what the Supreme

35:09

Court opened up with that. We

35:12

have long warned you listeners that

35:14

the major questions doctrine has been,

35:16

will continue to be, a kind

35:18

of stealth, unpredictable weapon that's just

35:20

lying in wait. We've said

35:22

this from the time when SCOTUS first

35:25

announced this I

35:27

guess it's like two or three years? I

35:29

guess West Virginia versus EPA. Well, the doctrine,

35:31

of course, has slightly older origins, but in

35:33

terms of the term, yeah, it's very recent.

35:36

So this is really just the

35:39

latest evidence of how it can

35:41

just lie there in plain sight,

35:43

ready to strike down hugely popular

35:45

programs that would greatly improve people's

35:48

lives, programs that

35:50

have enormous popular support. That

35:53

might be interesting as sort of a majoritarian

35:55

democracy kind of question. And

35:57

they just strike it down for reasons. And

36:00

as Leah and Dan Deacon have pointed out in

36:02

their really excellent article in the Virginia Law Review

36:04

on the major questions doctrine, a

36:06

lot of the major questions doctrine is just

36:08

really, really subjective and arrogates a lot of

36:10

power to this court to decide what is

36:12

a major question, when is

36:14

something significant enough to warrant

36:16

this kind of intervention, and

36:20

not a lot of answers, but lots of authority

36:22

for the court. Right, and in

36:24

addition to subjective, the doctrine seems to say

36:26

anything agencies do that's big and consequential is

36:28

presumptively suspect. And actually, the district court judges

36:30

in these two cases are

36:32

Obama appointees. These are not Trump judges, but

36:34

they're taking their marching orders from a Supreme

36:37

Court that is so deeply skeptical about anything

36:39

agencies do that is big. You

36:41

know, they're applying what the Supreme Court has essentially given

36:43

them. So then just a

36:45

quick beat on cert grants, and we wanted to

36:47

mention two important cert grants. One

36:50

is the Scrimetti case, which is a

36:52

case we've talked about before. It involves

36:54

a Tennessee law that bans gender-affirming health

36:56

care for trans kids. A

36:58

Tennessee district court invalidated the law. That's

37:00

also happened in a bunch of other

37:02

states, Arkansas, Alabama, Florida, Georgia. But

37:04

in this case, a divided panel of the

37:06

Sixth Circuit reversed, reinstated the law, and

37:09

the Supreme Court has agreed to hear it. And

37:12

you know, I understand why the cert petition was

37:14

filed in this case. The Sixth Circuit

37:16

opinion in this case left a horror show on

37:18

the ground for trans kids and their families, but

37:20

it is also really worrying to contemplate what the

37:23

Supreme Court is going to do with this case

37:25

and this question. The court also

37:27

granted cert in Even County Infrastructure Coalition

37:29

versus Eagle County, Colorado, a case that

37:32

asked whether the National Environmental Policy Act

37:34

allows federal agencies to consider climate change

37:36

and environmental impacts beyond the immediate scope

37:38

of a proposed project. And so that

37:41

seems like a place where maybe the

37:43

court will get its teeth into environmental

37:45

law and make it

37:47

less environmentally. This is

37:50

more Earth, you endanger girl material, for

37:52

sure. Earth, you endanger. Anyway,

37:56

so that's what's been going on. We

37:58

just continue. new to wait like Captain

38:00

Ahab for the big ones. So keep

38:02

waiting. For the Supreme Court to perhaps

38:05

officially announce its latest gift to the

38:07

Republican Party in the form of the

38:09

Emptala decision and deferring it, you know,

38:11

until after the election. So definitely stay

38:14

tuned for that. Well, two gifts. This

38:17

is Justice Thomas's birthday week. We might get a

38:20

gift to President Trump or

38:22

former President Trump. We might get a

38:24

gift to the Republican Party

38:26

more generally, but all would serve conservative

38:29

interests. Another gift. We already have the delay itself

38:31

is already as huge. I know we've all said

38:33

an enormous gift. This trial was supposed to happen

38:35

March 4th. It is now the end of June.

38:38

There's already the biggest imaginable gift the court

38:40

has given to former President Donald Trump. Yes,

38:43

but be on the lookout for

38:45

those takes that suggests the Supreme

38:47

Court permitted emergency abortions and you

38:49

know, moderate consensus. Be

38:51

the reply guy and the common

38:54

girl and the non-binary responder because

38:56

like that just ain't right. Okay.

39:00

That is all we have for today. Strix

39:02

Kourtney is a Crooked Media production hosted and

39:04

executive produced by me, Lila Littman, Melissa Murray

39:06

and Kate Shaw, produced and edited by Melody

39:09

Raul. Michael Goldsmith is our associate producer. Our

39:11

interns this summer are Hannah Saroff and Tess

39:13

O'Donohue. Audio support from Kyle

39:15

Seglen and Charlotte Landis, music by Eddie Cooper,

39:17

production support from Madeline Harringer and Ari Schwartz.

39:20

Matt DeGroat is our head of production. And

39:22

thanks to our digital team, Phoebe Bradford and

39:24

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