Pod Insights Strict Scrutiny How Will Trump 2.0 Embolden SCOTUS to Gut the Law? About this episode Kate and Melissa comb through the latest from the incoming Trump administration, including the subbing in of Pam Bondi for Matt Gaetz for Attorney General. Then, they take a look at the areas of law that will be hit hardest during a second Trump term. Finally, all three hosts speak with Judge David Tatel, formerly of the DC Circuit, about his book, Vision: A Memoir of Blindness and Justice https://bookshop.org/p/books/vision-a-memoir-of-blindness-and-justice-david-tatel/20689075?ean=9780316542029.
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Transcript 13,393 words · 8 speakers
Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.
0:00 Speaker 00 Mr. Chief Justice, please support. It's an old joke, but when a hardy man argues against two beautiful ladies like this, they're going to have the last word.
0:12 Speaker 01 She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."
0:42 Melissa Murray? Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Melissa Murray.
0:51 Kate Shaw? And I'm Kate Shaw. And with the court off this week, we are bringing you a terrific interview with Judge David Tatel, formerly of the D.C. Circuit. We're going to be talking about his new book, Vision: A Memoir of Blindness and Justice. We know the last few episodes have been in the bleak range, and this book and Judge Tatel are a much-needed pick-me-up going into the holiday season.
1:12 Melissa Murray? We should also note, Leah's not here, so this is one of those episodes where I'm the devil, Kate's the angel, and I'm going to try and just completely corrupt Kate by the end of this episode. So, listeners, if I've succeeded, let me know.
1:30 Melissa Murray? We have one hour, and I'm going to do it. Okay.
1:34 Kate Shaw? So, we will get to our conversation with Judge Tatel in a little bit, after Melissa works her magic. But before we do that, we want to spend a little bit of time continuing our reeling roundups regarding the election. First up, I want to reprise Leah's just amazing coinage from last week and note that it seems that not everyone wants a frat paddle turned real live boy as their Attorney General. So, last Thursday, after a whirlwind week in which the House Ethics Committee undertook a party-line vote to keep their report into their investigation of Gates under wraps, and Gates himself made the rounds on Capitol Hill, our would-be Attorney General decided that his nomination had become too much of a distraction for the new administration.
2:20 Kate Shaw? So he withdrew his name. And on the heels of that announcement, the president-elect announced that he intended to nominate Pam Bondi, former Florida Attorney General and Trump impeachment 1.0 defense counsel to the post. So Melissa, I'm dying to hear, as our resident Floridian, this really is Florida man, woman, and everyone else is going to get a job in this administration, right?
2:42 Melissa Murray? There are other states, there are other states, D E I for Mississippi. Like, there are other terrible states, too.
2:50 Kate Shaw? In an, yes, so what, Texas is just, Texas is right there. You can't find someone in Texas. I mean, although, I don't, don't, don't even.
2:57 Melissa Murray? Ken Paxton is right there.
2:58 Kate Shaw? I know. This is, obviously, I think Bondi is probably better than Paxton in like the hellscape that we reside in. I will say, every administration brings a lot of randos from their hometown, which I guess is the state of Florida right now for Trump.
3:12 Melissa Murray? I mean, there is a kind of Jimmy Carter quality to this.
3:15 Kate Shaw? Clinton came with a lot of, there was a big Arkansas contingent when the Clinton administration came in, in the early Obama administration. I don't think it was like randos, things, you know, very qualified people, but there were a lot of Chicagoans overrepresented in the White House ranks in the early Obama days. So that part of it, I think, is fairly routine, but not the specifics.
3:34 Melissa Murray? All right, so a couple of notes about Matt Gaetz's withdrawal, Gatesgate, as you might, and then the immediate substitution of Pam Bondi. So, one, who won the week here and who lost the week? Obviously, Matt Gaetz lost. We didn't even talk about the Ethics Committee's investigative report that was supposed to come out. They had a party line vote within the committee with five Republicans saying, no, do not let the report go out, and five Democrats saying, yes, this man is up for the top law enforcement job. This is a matter of public relevance. We should release it.
4:15 Melissa Murray? Who knows when we'll see this report. Some members of the press have gotten wind of it and know its contents. So I'm sure parts of it will trickle out. But it was wild and it was really just not normal, not business as usual. So definitely Matt Gaetz lost the week. I'd also say JD Vance lost the week because it was his job to take around the dynamic duo of Pete Hegseth and Matt Gaetz and somehow convince the senators, JD Vance's former colleagues or going to be former colleagues.
4:49 Kate Shaw? I don't think he's resigned from the Senate yet, has he?
4:51 Melissa Murray? I don't think so. I don't think he's resigned. And so he was dispatched to Capitol Hill to get his former colleagues who ostensibly respect him to go along with this. And it seemed clear, at least in the case of Gates, he could not, he could not close the deal. So he definitely lost the week. And, you know, I wonder what that means for his standing within the administration because it seems like he kind of has been eclipsed a little bit by Elon Musk. I mean, he wasn't at the WrestleMania or whatever the hell they were at last week.
5:25 Kate Shaw? Like McDonald's photo op where they're all like.
5:28 Melissa Murray? Yeah, he wasn't in the McDonald's photo op where they were hazing Robert F. Kennedy and making him eat Big Macs against his will.
5:34 Kate Shaw? Yep. No, he was not.
5:35 Melissa Murray? Everyone was there. Mike Johnson was there. But JD Vance was conspicuously absent. So I don't know if he's been ostracized or he's on the bench, but he definitely did not complete the mission, which was getting the Senate to go along with the Gates nomination. And unclear what will happen with Pete Hegseth. Shortly after the Gates news was announced, there was more information about the allegations surrounding Pete Hegseth, which he has also vigorously denied. So, yeah, they both lost the week.
6:07 Kate Shaw? But we should just say, what he is denying is, right, there's a police report of an alleged sexual assault. And I don't think there's any question that there was a financial settlement to the woman who first went to the hospital to get a rape kit and then made the police report. So, but back to Gates for one second in terms of who won the week. I think that the journalists who actually brought to light enough details that they kind of forced the withdrawal of the biggest, most controversial cabinet announcement that Trump has made. I think that, you know, in a moment where it does feel like there are not a lot of checks right now around this incoming administration, the free press
6:48 Kate Shaw? is just enormously important. And I do think that the reporting about the details of this report, you know, sounds from the reporting as though there are allegations of multiple sexual encounters between Gates and a then 17 year old, he does deny this, and other teenagers, though not under 18, also allegedly involved. And so, but I think we only know the details that we know because the press doggedly ran that down.
7:13 Melissa Murray? I totally agree with you about the press. I will say, I think the Senate may also have been a winner this week, though not necessarily because they did anything. But the fact that they were sort of holding the line, as it were, even if it was a little weak in the line holding, that I think was really enormous here. I mean, this is a really important position and they were sort of like, yeah, I'm not feeling it. And even when they sent J D Vance to kind of lobby for it, they're like, I still not feeling it. And so I think that was a show of some strength by the Senate, which again, is in
7:53 Melissa Murray? the control of Donald Trump's party. So this, you know, no mean feat this. So that was good. But, but I will say this about the whole week. Gates Gate was such a distraction that it really overshadowed the other Justice Department appointments that have been announced. So Emile Bovee in the DOJ, Todd Blanch, and now Pam Bondi. And these are not insignificant positions. These are really important positions and they're effectively going to be staffed by people who are essentially the president's defense counsel, like actually were the president's defense counsel. And so to the extent that Department of Justice
8:37 Melissa Murray? Is the lawyer for the whole country. That seems to be shifting and we're not really talking about it. This department is before our very eyes being transformed into a public defender, maybe slash prosecutor for this president. And the Gates part has so occupied our attention that I don't know that we're spending a lot of time talking about that. And we should talk about Pam Bondi quickly.
9:02 Kate Shaw? I think that's a great point. And yeah, every previous president, you know, has their personal attorneys and then they have their appointees in the Department of Justice. And I think as we so often saw the collapse of the distinction between the private and the public in the first Trump administration, any remaining vestiges of a distinction between the two, we should understand to have been completely obliterated. And I think you're right that these appointments are very much evidence of that.
9:26 Melissa Murray? So let's talk about Pam Bondi. She's the former Attorney General of Florida. She is a graduate of the University of Florida where she was a member of the Delta Delta Delta sorority, also known as Tri Delta. And she went on from that to graduate from Stetson University's law school. And she's been in Republican politics for a long time. I think I remember her as being sort of a staunch, kind of Jeb Bush style Republican, not necessarily a kind of MAGA type, but she's definitely drifted and she has definitely been in the Trump orbit. As we noted, she wasn't like the head person defending Donald Trump in the first impeachment.
10:07 Melissa Murray? I know that seems like a zillion years ago, Kate, when we were covering that for ABC. But she was definitely in that milieu and one of the lawyers, just a little bit further down the ladder than some of the top folks. So she's a little closer to him. I think there is going to be some scrutiny of her campaign finances. There's already been some discussion of contributions made by a Trump family charitable foundation to her campaign and, you know, which isn't permissible and has been scrutinized. I think there will be more scrutiny of that going forward. But I think the bottom line is she's not Matt Gaetz. Right? There's no teenage girl allegations in her past. And so whatever the allegations
10:50 Melissa Murray? are about her, they definitely seem better than that. And, you know, who knows what these senators have left in the tank to fight on these questions. You know, I think a lot of them believe that elections have consequences and presidents get to select whom they like for these positions. And yeah, she's not obviously objectionable. And I think she's likely to go through and go through pretty quickly. And maybe that's the whole point.
11:16 Kate Shaw? We'll see if, you know, anything emerges between now and then. But I tend to agree. I think that absent something very unforeseen, then she will be the next Attorney General. So buckle up.
11:39 Kate Shaw? All right. So should we shift gears?
11:41 Melissa Murray? Sure. Okay. With everything that's happening, we thought we should probably peel back a little bit and offer some speculation about the areas of law that are likely to be hit hardest in light of the election and the new administration. So these are areas where the justices might bear down now that they know that they are unburdened by what had been and completely unrestrained going forward. We also should recap an important argument that was heard at the Wisconsin Supreme Court. So let's just be very clear. We're not speculating about the specific policies that might make their way to the United States Supreme Court, i.e. the kinds of things the Trump administration might do when they take office on January
12:25 Melissa Murray? 20th that the justices might then weigh in on. Those things include, for example, perhaps changing positions regarding MTALA protections. Again, MTALA is the Emergency Medical Treatment and Active Labor Act. They might say that federal law doesn't require hospitals to offer emergency stabilizing care when that care is an abortion. That's definitely a possibility. They could also perhaps rescind the Deferred Action for Childhood Arrivals program. But that's not really what we're talking about here. We instead are focusing on the areas of law that the court might actually be inclined to change now that they too are unfettered and have a green light to go absolutely wild. I mean, like, we've
13:09 Melissa Murray? been joking about the YOLO Court, but this really could be the YOLO Court on steroids.
13:14 Kate Shaw? Yeah, and we don't know if this is going to be this term or over the course of the next two or three terms. But there are a few areas we want to highlight as very likely candidates for potentially even more radical change. And the first of these is administrative law, so the law governing federal agencies. And the administrative state, for quite some time, has been in the Republican Party and the Republican-appointed justices' crosshairs. Up until now, the aim that has been taken at those agencies and agency power has mostly been with an eye toward judicially imposing deregulation, right? That is, using courts to stop agencies from regulating. But as we noted in our Court Culture segment with some of the folks at the Antitrust Division of the Biden Justice Department,
13:56 Kate Shaw? and we have talked about a lot in some of our discussions of Project 2025, there really has been something of a realignment in terms of this MAGA Republican Party's thinking about the relationship between the law and the president and agencies. And I think J.D. Vance has been an important thought leader, I guess, on this topic. And that is essentially to reorient thinking about the administrative state away from just stopping the government from regulating polluters and industry, and instead combining this deregulatory effort with an effort to take over various aspects of the federal government. That is, to centralize control and potentially weaponize aspects of the federal government, potentially including to target perceived enemies.
14:41 Kate Shaw? So this new approach is kind of a combination of deregulation of some aspects of government and then centralization of control over other aspects of government and government power more broadly. So to give a concrete example, that might include things like the FCC threatening licenses for outlets that are too critical of the administration, or the IRS auditing nonprofits that are similarly perceived as too critical, or going after schools or employers for purportedly discriminating against conservatives.
15:10 Melissa Murray? Honestly, Kate, I feel like for the last two years, we've been crying about deregulation. Deregulation, deregulation. Now JD Vance is like, hey, bitches, hold my beer. Not just deregulation, we're going to weaponize.
15:20 Kate Shaw? But we're not done with that. I think they still want to deregulate. It's just very selective.
15:23 Melissa Murray? No, no, no. We can chew gum and walk at the same time, right? Like, we can both weaponize and deregulate. And so what does that look like? So one area of law where we could see a lot of changes, and we're already getting some glimmers of this, is in the whole question of presidential removals, i.e. the law about which officers, people in the federal government, Congress can insulate from at-will removal, who can be protected from being fired by the president. Up until now, the court has limited, although they have not overruled the decision in Humphreys Executor versus FTC, which upheld Congress's ability to create multi-member commissions that were led by those who aren't removable at-will by the president.
16:07 Melissa Murray? But that could be changing, right? That could change enormously, such that the court could give presidents greater control over removing officials at the FTC, the FEC, the SEC, and, wait for it, possibility, the Federal Reserve, right? So already, these folks are saying the quiet part out loud. Both Donald Trump and shadow Vice President Elon Musk have been talking about Donald Trump firing Fed Chair Jerome Powell, right? So I mean, that's a real thing. And do you know what happens when you fire the Fed Chair?
16:45 Kate Shaw? Nothing good globally.
16:47 Melissa Murray? I think a Great Depression, a recession, like economic upheaval.
16:51 Kate Shaw? Here or everywhere. Yeah, declaring the Fed unconstitutional and allowing the president to install, you know, an unqualified lackey as the chair, I think would be genuinely disastrous. And so there is this part of me that thinks the justices, even, you know, though a couple of them I'm sure would be on board with this project, it's not clear to me that five of them would be. But...
17:14 Melissa Murray? We are literally betting a global economy on whether Amy Coney Barrett and Brett Kavanaugh got up that morning and had a good breakfast. That's where we are.
17:25 Kate Shaw? That's where we are. It's bleak.
17:28 Melissa Murray? Another group of federal government employees whose jobs might be changing in the wake of this effort to not just deregulate, but also weaponize are going to be administrative law judges. So these are the folks within agencies who perform judicial-like functions. So they adjudicate cases within the administrative agencies. For example, there are ALJs in the Social Security Administration. We already know there are ALJs in the SEC, C. Jarkasi, for example. And right now, all of these, right now, many of these individuals are classified as part of the civil service, which is to say they are hired under a competitive exam structure, and they can't be removed at all by the president.
18:08 Melissa Murray? But if you take a really robust view of the unitary executive, maybe they should be. And, you know, I think that might be something that if not, I think that might be something that if it doesn't change immediately, will certainly be up for consideration and may move in a lot of different directions and ultimately get changed entirely.
18:27 Kate Shaw? Right, and just as a reminder, in Jarkasi, the Fifth Circuit actually did find that these protections that these ALJs enjoy were impermissible. The Supreme Court didn't touch that aspect of the Fifth Circuit opinion, but it is certainly out there. It has already convinced one court of appeals, so I think it's only a matter of time before the Supreme Court takes it up. And kind of related to the kind of ALJ question is the prospect that the law of appointments of federal government, both officials, officers, and also ordinary employees, could potentially change. So the very high-level overview of this area of law is that the Constitution prescribes certain procedures for how officers of the United States, both principal and inferior officers of the United States, the highest-level officials in government, get appointed, and
19:11 Kate Shaw? that's either by the president with Senate confirmation, or just the president, or just a cabinet head, or in theory at least, by courts of law. But the Constitution is understood to give Congress basically plenary control to write rules for how ordinary employees in the federal government get hired. And right now, the vast majority of people in the federal government are considered employees, and so those people are subject to all the competitive hiring rules that Congress has implemented, starting with the 1883 Pendleton Act. And continuing through many, many rounds of revisions to the civil service laws. If the court were to expand the definition of officer, it would be saying that Congress actually can't make a bunch of these people subject to the hiring scheme that we just described. Instead, they would all need to be appointed either by the president or cabinet secretaries.
19:54 Kate Shaw? So that's one potential change that could be in the offing. And a related move is something we referred to previously, Schedule F, this executive order that Trump issued at the end of his first term. I am expecting it to be reissued in the first week, maybe on day one of this next administration that would essentially allow cabinet secretaries at the direction of the president to designate a lot of federal officials as basically political appointees and thus remove and replace a lot of experienced career civil servants with lackeys and hacks. And so that would be another way to take a huge bite out of the existing civil service laws, reinstate patronage hiring in broadswaths of the federal government.
20:37 Kate Shaw? There will definitely be legal challenges to this effort to reinstate Schedule F, but I'm not at all sure how they'll fare.
20:43 Melissa Murray? And in case Schedule F sounds familiar to you, it's because Lee and I told you about it this summer when we did our Disaster Peace Theater rundown of Project 2025. We talked all about this. So for all of those people, they probably don't even listen to Strix or D, so I'm just going to talk to them beyond the podcast. For all of you who decided to vote for abortion referenda, but then turn around and vote for Donald Trump because federalism, I guess, we tried to tell you. We tried to tell you, like, we literally told you this was in the offing, and I think it's very likely to happen. And so, you know, you wanted Schedule F because the price of milk is too high. So now you're going to get Schedule F. And you know what? Milk is going to be cheaper because you're going to be pregnant against your will and
21:27 Melissa Murray? you're going to be making the milk. So there.
21:32 Melissa Murray? Okay.
21:34 Kate Shaw? Wait, I didn't even, I'm not sure I even followed it. Also tariffs are going to make everything more expensive.
21:38 Melissa Murray? What do you mean you didn't follow it? Do you not know biology?
21:41 Kate Shaw? Well, but you're not actually lactating while you're pregnant.
21:45 Melissa Murray? Whatever.
21:47 Kate Shaw? I'm pretty sure sequential. Also, you're not buying your breast milk. I'm sorry, there are a few problems.
21:56 Melissa Murray? I know how this works. I do, and I stand by it. If you thought milk was going to get cheaper, it's only because
22:05 Kate Shaw? The price has been shifted. Yes, it'll be very costly in a very different way.
22:08 Melissa Murray? The cost of producing milk is now on you.
22:10 Kate Shaw? It's on you.
22:11 Melissa Murray? Correct. Okay.
22:12 Kate Shaw? I got you.
22:13 Melissa Murray? All right. In addition, thank you for that little interlude. I am slowly intermittently releasing rage, so I appreciate you all for just allowing this. We should also discuss the possibility that the court may revive some version of the nondelegation doctrine, which is a limit on agency authority. So for those of you who don't remember, con law was kind of a blur. The nondelegation doctrine is the idea, and it's just an idea that has literally only been enforced in the 1930s. I think exactly in 1935 in two cases, Schechter Poultry and Panama Oil, right in the middle of the Depression. And the whole point of it is that Congress cannot authorize agencies to implement general guidelines. So they
22:57 Melissa Murray? can't delegate power to an agency in sort of broad swaths. They have to delegate with very specific instructions as to how the agency will use that power. And at the same time that Congress limits the authority of agencies by reviving the nondelegation doctrine, it might be bent on expanding the president's power, especially over plenary areas of authority like immigration. So again, a diminution of Congress's ability to delegate to the executive, but no concomitant diminution of the executive's authority to act in areas that are places where Congress also has a role to play. Another area of law that seems to be on precarious
23:42 Melissa Murray? footing is the First Amendment, and it has been, I think, for some time. The court could continue to expand the First Amendment exceptions to civil rights protections for the LGBTQ community. So we know in Masterpiece Cake Shop, the court invalidated a particular application of the Colorado Public Accommodations Law that prohibited discrimination on the basis of sexual orientation and other protected traits. And they did so because of some comments that a commissioner made during the proceedings adjudicating whether a baker had violated the law when he refused to provide a wedding cake to a same-sex couple. Then in Fulton versus City of Philadelphia, the court struck down a term in the city's contracts with agencies certifying prospective foster care parents.
24:26 Melissa Murray? The term required agencies not to discriminate on the basis of sexual orientation. And then in 303 Creative versus Alanis, the court said that public accommodations laws couldn't be applied to entities or individuals that were engaged in "pure speech" or expressive businesses, where they would be forced to write messages or create speech that they disagreed with. So I think it's very likely that we see additional requests to continue carving out exceptions to these kinds of public accommodations anti-discrimination laws. I actually don't even think it's beyond the pale that this goes beyond simply discrimination against the LGBTQ plus community. I mean, I think, once we get into this and we're making exceptions, we might make exceptions
25:10 Melissa Murray? for all kinds of protected traits.
25:13 Kate Shaw? As the dissent, right? Yeah. But as the dissent suggested, if you want to discriminate and claim a religious basis or an expressive basis for doing so, and you want to discriminate on the basis of sex or race, it's not clear how the logic of those cases are restricted to sexual orientation contexts. So I think that all of that is very much a possibility. Also, in the First Amendment column, we will probably see the continued demolition of campaign finance regulation. The court has obviously already struck down a lot of campaign finance regulations. Citizens United is the case people will have heard of. But there are still some pockets of campaign finance regulation that remain. They include contribution limits, right? The limits you can give to a particular campaign, reporting and disclosure requirements.
25:55 Kate Shaw? And I think that maybe both of those categories of remaining regulation are somewhat vulnerable before this court.
26:01 Melissa Murray? Not unless they can be weaponized to find the people who supported Kamala Harris.
26:06 Kate Shaw? So leave them, you're saying, leave them, well, they're in place now for the sort of the past campaign. And so you can already base whatever harassment and retaliation you want to on those records. But going forward, perhaps their donors would like even more secrecy to attach to their activities than they currently enjoy. And eliminating disclosure requirements is one way to achieve that. But also, kind of, non-campaign finance First Amendment. Possibility, right? The court could revisit the New York Times versus Sullivan standard that provides the press and others with broad First Amendment protections against defamation claims when they are talking about public figures. Thomas and Gorsuch have already been gunning for several years to revisit this standard, which would be profoundly chilling right now in a moment in which, as we said at the outset of the show, a free press has never been more
26:51 Kate Shaw? important.
26:53 Melissa Murray? I mean, can you imagine Justice Thomas on ProPublica, like, reporting on my private jet travel is defamation?
27:02 Kate Shaw? Yeah.
27:02 Melissa Murray? Yeah. Anyway, there's also likely to be some activity around the equal protection clause or, you know, the due process clause where it is implicated with equal protections concerns. And specifically, I think we're very likely to see the court wielding equal protection against measures that were designed to increase diversity or representation in places where formerly certain groups had been historically excluded. So this might involve continuing to hobble and dismantle laws like the Voting Rights Act. Kate and Leah, a few episodes ago, talked about a current case that's pending where the court is considering when it's unconstitutional for states to try and remedy Voting Rights Act violations by considering whether maps ensure that black voters have the opportunity
27:47 Melissa Murray? to elect the officials of their choice. And more broadly, the weaponization of equal protection could include policing efforts to diversify institutions. Now that the court has invalidated race-conscious affirmative actions, I think it's very likely that we're going to see them turn to race-neutral programs like DEI training or measures that don't take race into account but are nonetheless designed to increase racial diversity or gender diversity. So the Thomas Jefferson High School case from the Fourth Circuit last year, which the court denied cert to, that's kind of a classic example. I mean, the bottom line question is, if you're even thinking about diversity, is that unconstitutional?
28:28 Melissa Murray? And I think this is a court that's primed to say, yeah, 100%.
28:34 Kate Shaw? And the court has other cases coming up that it's going to get to answer the question if it wants to.
28:38 Melissa Murray? Is there any positive news? Can you plead, like, I was having a good day. I was releasing some rage, and now I'm back on my bullshit. Like,
28:45 Kate Shaw? Okay, well, I mean, I don't, I don't want to sugarcoat what we just talked about and I think what is to come. I think that things are incredibly bleak at the United States Supreme Court and will remain.
28:56 Melissa Murray? Have I turned you out, Kate? Have I made you just like? You're not, you're not being up.
29:00 Kate Shaw? Or the, you know, the, the conditions on the ground did.
29:03 Melissa Murray? I didn't do this.
29:04 Kate Shaw? But that's, that's where we are. No, but I actually am here to say there is good news. So because we don't want to make every episode all bleak, because it is important to find joy, which is both a coping mechanism and, you know, an opposition tactic. We want to continue to recognize when good things happen, where there is still room to do something. And to that end, we wanted to highlight an oral argument that took place in the Wisconsin Supreme Court the week after the presidential election. The court heard arguments in a case about whether to let the state's very old abortion ban, originally enacted in 1849, go into effect today. So the case is similar to the Arizona case on a similar issue.
29:44 Melissa Murray? So we've highlighted the absolutely phenomenal women who make up the progressive majority on the Wisconsin Supreme Court. Again, they're fantastic. And in this oral argument, they kind of showed up and did the damn thing. We wanted to play you some clips, but there are so many clips of them being absolutely fantastic that we are just going to have to limit ourselves to a few. And we're doing this because we think it's important for you to know that we're not in this alone. There are other people who are trying to sustain this work and they can sustain you when you are flagging and give you something to fight for. So meaningfully, with that in mind, there's going to be another Wisconsin Supreme Court election next year.
30:28 Melissa Murray? And that election will determine whether the Wisconsin Supreme Court remains a four to three progressive majority. So if you're looking for something to focus on, and you should be looking for something to focus on, something you can put your energy into to make good change, investing in the Wisconsin Supreme Court election in 2025 seems like a very good place to start. Ben Wikler is the Chair of Wisdoms. He is absolutely phenomenal, as evidenced by the fact that the margins in Wisconsin were closer than in any other swing state. And again, in, in really meaningful ways, they have a great ground game, they have the infrastructure, they need to be well resourced in terms of volunteers. So this is a good place to put your energy as you go forward.
31:11 Melissa Murray? So let's play some clips so you can know what you're fighting for.
31:15 Kate Shaw? All right, so first is Justice Jill Karofsky walking through exactly what this law would do were the justices to say, sure, this 1849 abortion ban is now in effect. Trigger warning here, she does talk about sexual assault involving minors.
31:29 Speaker 04 Under your interpretation of 94004, there would not be an exception for sexual assault or rape, correct?
31:38 Speaker 05 I believe that is correct unless it was necessary to save the life of the mother, or two doctors said it was.
31:44 Speaker 04 There would not be an exception for incest, correct?
31:47 Speaker 05 I believe that is correct unless 94004 sub 5 applied.
31:51 Speaker 04 There would not be an exception for the health of the mother, correct?
31:56 Speaker 05 I believe that's correct unless it's 94004 sub 5 applies.
32:00 Speaker 04 There would not be an exception for fetal abnormality, correct?
32:04 Speaker 05 I think one of the elements for a violation of 94004 sub 1 is that it is a living unborn child. So I guess it would probably depend to the extent of fetal abnormality. If it's a situation where in the death of the fetus, I don't think you could apply the statute.
32:22 Speaker 04 Let me drill down a little bit with some specifics on these. Just to be clear, a 12-year-old girl who was sexually assaulted by her father and as a result became pregnant, under your interpretation of 94004, she would be forced to carry her pregnancy to term, correct?
32:41 Speaker 05 I would say, under the policy choice the legislature made in 94004, that that would be correct.
32:46 Speaker 04 Okay, so in that case, a child would be forced to deliver a baby.
32:50 Kate Shaw? Justice Karofsky also exposed the perversity of the structure of Wisconsin's criminal laws, how a doctor who provided an abortion to a victim of sexual assault would receive more punishment under this law than the person who committed the assault.
33:03 Speaker 04 In that case, the penalty for aborting after a sexual assault would be more severe.
33:10 Speaker 04 Than the penalty for the sexual assault.
33:13 Kate Shaw? She also pulls a Vice President Harris, right then. Senator Harris, a stumping nominee Brett Kavanaugh during his confirmation hearing moment.
33:21 Speaker 04 Hold on, I'm not done. I can't think of anyone else other than pregnant people who are denied medical care under the law, can you?
33:32 Speaker 05 I certainly think that, for example, the FDA regulates particular types of medical treatment that are provided to people. I don't think that the notion of the government restricting a medical procedure is new.
33:48 Kate Shaw? And then she just goes all the fuck in.
33:50 Speaker 04 Mr. Toomey, and I fear that what you are asking this court to do is to sign the death warrants of women and children and pregnant people in this state. Because under your interpretation, they could all be denied life-saving medical care while the medical professionals who are charged with taking care of them are forced to sit idly by. This is the world gone mad. I don't understand how that is not the crime here.
34:22 Melissa Murray? She so dominated this argument that Justice Rebecca Bradley, she's on the other side, stepped in to say, you're not arguing all of these things are good, just that the legislature did them, right? And that prompted the good Rebecca, Justice Rebecca Dallett, to chime in with this.
34:41 Speaker 06 Okay, let's talk about the policy decisions that the legislature made. You're talking about policy decisions made in 1849. So in 1849, we're talking about a time when the only people that had rights were white men, correct? With property, white men who owned property, sorry.
34:59 Melissa Murray? And then we got this knockout from Justice Karofsky. So this occurred when the lawyer was talking about how the existence of statutes requiring informed consent aren't inconsistent with a ban on abortion.
35:10 Speaker 05 For example, things like informed consent, you know, that type of thing, the Arizona Supreme Court said that could still have an effect in a situation where abortions are performed.
35:19 Speaker 04 Provided in situations where it's necessary to save the life of the mother. Can you imagine trying to trying to provide informed consent to a 12 year old?
35:29 Kate Shaw? Well, I hope that those excerpts brought you some joy as they did for us. You know, again, easy to feel alone.
35:35 Melissa Murray? Better than a book club. I feel better. I really do.
35:38 Kate Shaw? Maybe the ladies of the Wisconsin Supreme Court just need to, you know, to provide this kind of inspiration to us.
35:44 Melissa Murray? Call me ladies.
35:45 Kate Shaw? That's right. And as Melissa just detailed, there is a seat on that court that will be open next year. The nonpartisan primary is February 18th. The top two vote getters advance to the general election on April 1st. This is basically around the corner. It's knocking on the door. And Susan Crawford, who's one of the individuals who has thrown in, is definitely running for that open seat, would fit right in with the badass women we just heard on display in this oral argument. And actually, in that vein, we did want to note two other potential bright spots. One is, I think, very much to be determined, but Justice Allison Riggs of the North Carolina Supreme Court, and a previous guest on strict scrutiny, might be holding on to her seat on that court. So that race has been too close to call. She was down on election night, but final tallies after everything was in
36:30 Kate Shaw? had her up just over 600 votes, so razor thin. Her opponent now seems to be mounting a scorched earth litigation effort. There's a recount and also various claims have been filed. So I really don't know what's going to happen, but it does seem as though there's a real chance that Justice Riggs hangs on to her seat. And as she detailed when she was on our show, that would mean that as of 2026 and then 2028, when other seats will come vacant, flipping that court actually remains a live possibility, but it is critically important that she hang on to her seat in order for that to be a viable path. So that's one other bright spot. And the last one is that we got a surprisingly great decision out of a Wyoming trial court last week that one of the lawyers involved in the lawsuit sent us. The decision found that the state's ban on abortion violates the state constitution's
37:15 Kate Shaw? right to health care. State constitutions are a source of a lot of rights, sometimes not explicitly protected in the federal constitution. And, you know, entrepreneurial litigators bringing these kinds of claims, even in states that feel like they might be hostile terrain, sometimes can get really important wins. So congrats to the team involved in that effort. All right, so we're now going to transition to our conversation with Judge Tatel. And we wanted to note that Leah couldn't be here to record this segment, just the one we're doing now, but she wanted us to add, as we intro the Tatel segment, that Judge Tatel actually recently came to Michigan Law School and spoke about his book, and it was delightful and heartwarming at a time when we all need it.
37:52 Melissa Murray? And one last thing before we go to break, a brain worm and confessing to dumping a dead bear in Central Park apparently aren't deal breakers for Donald Trump's incoming presidential cabinet. So this week on Assembly Required, Host Stacey Abrams is tackling another listener's question to break down what could be the impact of RFK Jr.'s appointment on such agencies like the FDA and government organizations like the CDC and just generally the future of public health in America. Are we going to have that? Who knows? Then she sits down with top chef and activist Tom Colicchio to discuss why food insecurity remains such a massive issue in the US and what steps we can all take to fix it. You can listen to Assembly Required with Stacey Abrams now, wherever you get your podcasts, including YouTube.
38:49 Kate Shaw? Joining us today is Judge David Tatel, who served on the D.C. Circuit Court of Appeals for nearly 30 years. Judge Tatel joined the court in 1994, following a distinguished career as a civil rights lawyer, which included time at the Lawyers Committee for Civil Rights Under Law, in private practice, and at the Office for Civil Rights in what was then the US Department of Health, Education, and Welfare. Judge Tatel took senior status in 2022 and formally retired from the court earlier this year. He also recently wrote a wonderful book titled Vision: A Memoir of Blindness and Justice. We are thrilled to talk to Judge Tatel about his book, his career, and possibly also his guide dog Vixen, as we are pretty dog-obsessed on this podcast, but we will wait and hit that later in the episode. So for now, thank you so much for joining us, Judge Tatel.
39:32 Speaker 07 Glad to be here. Thank you.
39:33 Melissa Murray? So I'll get things started, Judge Tatel. You retired from the bench this year, and you released this memoir. How long before your retirement did you begin working on vision? And what prompted you to document these aspects of your life and career and make them public in a way that few federal judges do?
39:54 Speaker 07 I began working on the book just about exactly three years ago, right now. Actually, I had no plans to write a book. I was thinking about retirement, but I hadn't thought about writing a book. That wasn't on my retirement agenda. I didn't want to write a book about blindness. As you know from reading the book, I spent a huge amount of time and energy downplaying my blindness. So I didn't want to write about that. I didn't think anybody would want to read a book by a federal judge who never made it to the Supreme Court.
40:27 Melissa Murray? Many of us don't want to read books by federal judges who did make it to the Supreme Court, so you might have that in reverse, Judge.
40:35 Speaker 07 I hear what you say. In any event, what happened was quite a few friends and family pushed back, and they said to me, they urged me to think about writing a book. They thought, the line they used was, you're not just a blind person, you're a judge who happens to be blind, and you've got this great guide dog. And they thought my story could be inspirational. And once they put it to me that way, I started to think that maybe I should do this. Maybe if I could tell my story in a way that would be inspirational, that it might be worth undertaking it.
41:17 Speaker 07 But since I didn't want to write just about blindness, I decided that if it was going to be a book, it had to be both about blindness and my views about the court.
41:25 Melissa Murray? So you just referenced this, but this book is a memoir of your life in the law, but it's also, as the title makes clear, a personal account of your journey to living with blindness. And one place you write about this really beautifully is in your account of your nomination and confirmation to the D.C. Circuit. And as you just suggested, you really didn't want reference made to your blindness in the press coverage. So could you elaborate a little bit on how you felt at the time and how your feelings may have changed?
41:58 Speaker 07 When President Clinton nominated me to be on the D.C. Circuit, I was thrilled. It was the dream of a lifetime, but I didn't want to be known as the blind judge. I wanted to be selected for the D.C. Circuit because on the merits. And so, in his press conference, press release about my appointment, he never mentioned that I was blind. That was the way I treated blindness. I didn't want to talk about it. I wanted it viewed as an unimportant part of who I was. Today, you know, I feel quite different about it.
42:39 Speaker 07 And that difference is due to the process of not only writing this book, but getting a guide dog. And as I look back on the experience, I don't question young David Tadles, and I mean very young, teenage, early, early years in law school. I don't question his judgment, his decision to keep it quiet. You know, I was worried then that visual disability would affect my job opportunities, and I don't think I was wrong about that then. When I was a young lawyer, you know, first in a law firm and then civil rights, I had lots of mentors and role models, but I didn't have any blind mentors or role models.
43:23 Speaker 07 I didn't, I couldn't, there wasn't a blind federal judge. There wasn't, there weren't blind partners in law firms. In a way, if this book can provide that for young people with disabilities today, if they can read this book and say, ah, you know, I can do it too, then, then I will, I will feel justified in having written the book.
43:43 Kate Shaw? One of the things that's so wonderful about the book is the way you weave together both, you know, your extraordinary career in the law and your evolving relationship to your declining sight and then blindness during these different periods of your career and life. And before we get to your, you know, life as a judge, I want to talk a little bit about some of your, some of the earlier phases of your career, and in particular, your early work as a civil rights lawyer. And, you know, we thought maybe It would be easiest to ask you to talk about one case, just to give our listeners a sense of that phase of your legal career. The case that I thought we would ask about was what became the NAACP versus Claiborne Hardware case in the Supreme Court, which was, you know, the 1982 decision of the court holding that while state police power may be used to regulate economic activities, states
44:26 Kate Shaw? cannot prohibit peaceful advocacy of, you know, politically motivated boycott. And you did not argue the case before the court, but you were instrumental in the case in the lower court. So can you tell us about that case and your involvement with it?
44:39 Speaker 07 Yes. Well, the case, I tell the story in the book in a, in a chapter called Too Beautiful to Burn. The case arose in a tiny town in Mississippi called Port Gibson. And the reason the chapter is called Too Beautiful to Burn is that during the Civil War, when Ulysses Grant's army, after it went through Vicksburg, it passed through Port Gibson on its way to Jackson and the general entered an order telling his troops not to destroy the town. It was too beautiful to burn. And that phrase is all over the town today. So that's, that's why it's called that. In the late 60s, mid to late 60s, the NAACP organized boycotts all across the state of
45:23 Speaker 07 Mississippi, boycotting merchants that would not hire, refuse to hire black people. The merchants retaliated by filing a state antitrust action against the NAACP and in Port Gibson's over 100 individual boycotters. And at the end of the process, the chancellor ruled against the boycotters and entered a judgment of around a million dollars. We're talking now early 1970s, so that's a lot of money. The NAACP did not have a million dollars and the individual boycotters certainly didn't either. The problem they faced was, in order to appeal
46:06 Speaker 07 under Mississippi law, they had to either pay the judgment or post a bond worth 125% of the judgment. I went into federal court in the Northern District of Mississippi in Oxford and asked for an injunction prohibiting the state from requiring the judgment as a condition of of the appeal. And we argued that it violated, the judgment violated both the NAACP and individual boycotters' First Amendment rights and their access to court. We lost in the Mississippi Supreme Court, as we expected. That happened on a Friday afternoon. I then went into federal court that morning,
46:48 Speaker 07 filed the papers, argued before Judge Orma Smith, one of these wonderful Southern judges, a white man who grew up in segregated Mississippi, but took his oath of office seriously and was one of the judges in the South that was responsible for making, for enforcing the 14th and 15th Amendments. Anyway, he ruled for us. And all that, all that laid the groundwork for the NAACP taking the case first to the Mississippi Supreme Court, where they lost, and then to the Supreme Court, which ended up in NAACP v. Claiborne Hardware, you know, a dramatic Supreme Court vindication
47:32 Speaker 07 of the First Amendment right of boycotters.
47:35 Melissa Murray? So we're going to fast forward a little bit now from your career as a civil rights lawyer to a judge. So because we are a Supreme Court podcast, we unfortunately have to spend a lot of time talking about things like originalism or what purports to be textualism. So we wanted to use this as an occasion to ask you to say a few words about how you identify or identified as a judge, that is, how your judicial philosophy developed and what it came to look like.
48:05 Speaker 07 So when I got, when I came to the D.C. Circuit, I had not, I hadn't been a judge. I had not been a district judge. I had litigated in the federal courts. And so I had a very good sense of what I thought courts should be. I tell the story in the book about how I read, spent the summer of waiting for my confirmation, this summer of 1994, reading judicial biographies. I thought that would be a good way to begin to think about how judges thought about being, being judges. And, and I read many of them. And the two that struck me the most was the Jerry Gunther's biography of Learned Hand, which your, your listeners should know is probably the best judicial biography I've ever read. It's really good.
48:49 Speaker 07 And also a biography of, of Justice Powell. And the Powell biography was interesting to me because he, like me, went straight to a court. I was reassured by his struggles as a first time appeals judge, how difficult it was to manage it. And it gave me a sense that I could do it too. The handbook, the Learned Handbook and the Powell book both focused on the two judges' belief in principles of judicial restraint. And that resonated to me. I, I like to think that people who read my court decisions over the years will see
49:29 Speaker 07 in them a judge trying very hard to follow those principles as, as carefully as he could.
49:37 Melissa Murray? Well, speaking of trying to follow those principles faithfully, let's talk about the Supreme Court. You devote-
49:44 Speaker 07 I thought you might get to that.
49:46 Melissa Murray? You read my mind. In the book, you devote considerable time to the contemporary Supreme Court. And you actually talk about the court in, I think, what is a highly critical register that was both bracing, but really important, given that it is coming from someone who spent a lot of time on the bench and knows from a court that is faithfully following principles of judicial interpretation. We're obviously very critical of the court on this podcast, and some of your critiques, I think, will be very familiar to our listeners. But I do- I think there's something that might resonate differently with at least some listeners because they are hearing it from you, a highly respected former judge on the D.C.
50:31 Melissa Murray? Circuit and someone who identifies, as you say in this book, with the model of judicial conservatism. I don't mean conservatism as like, you know, the right wing, but kind of a model of judicial restraint or limitation. So you open the book with a really bracing anecdote about a death penalty case that appeared on the Supreme Court's shadow docket. Can you tell us about that case and why it was so important to you to use that case to introduce the reader to the book and what follows?
51:02 Speaker 07 Yes, it's a bracing case. And, you know, it's in the prologue because my editor said, "You need to write a prologue that will make people read beyond the prologue."
51:14 Melissa Murray? Smart editor, very good editor.
51:16 Speaker 07 Yeah, that's why I picked that case as opposed to many other. I mean, I could have started with a FERC case, but then no one would have read anything beyond that.
51:24 Melissa Murray? You know, you say that, but our listeners love FERC. One of them remixed Justice Kavanaugh saying FERC in a recent oral argument to some house music. So people are more into FERC than you might think, Judge.
51:38 Speaker 07 Okay, and I have to confess that I actually enjoyed the FERC cases in my years on the court.
51:43 Melissa Murray? So do our listeners. Apparently you can twerk to FERC and...
51:47 Speaker 07 Yes, you can connect me with those and we can have a little FERC discussion if you'd like. So in the last year of the Trump administration, they issued a set of guidelines, protocols, to begin executing the men, the men and women, there was a woman, on federal death row. And this was the first of them. The story I tell, which also includes Vixen...
52:14 Speaker 07 I was on the special panel at the D.C. Circuit. Emergencies come to a special panel. I happened to be on it that day. The district court had enjoined the execution on the grounds that the chemical the government was going to use would cause extreme pain. It would cause a sense of drowning and extraordinary pain. The district court had before it affidavits from two sets of experts. One from the defendant, explaining why this would happen, and from the government, saying that it wouldn't. And the district court decided that she couldn't resolve the factual dispute on the written record.
52:58 Speaker 07 And so she enjoined the execution and scheduled a hearing. Case came to us early in the afternoon. I read the briefs. So did the other two judges on the panel. There were three of us, of course, two Democratic nominees, one Republican appointee. And we agreed with the district court by early afternoon that there was an unresolved factual dispute here, that if the defendant was right, the execution would violate the Eighth Amendment. If the government was right, it wouldn't. We decided to schedule a rapid briefing schedule and oral argument, all in about 10 days or
53:43 Speaker 07 two weeks. While we were writing the opinion, we got word from the clerk's office, the Supreme Court clerk's office, that the court wanted us to get this resolved quickly. And in a subsequent call to our clerk's office, we were told, within the hour.
53:58 Melissa Murray? Speed up the machinery of death. Speed up the machinery of death.
54:02 Speaker 07 We issued our opinion that evening, and it was five or six pages. We explained what the factual dispute was here. And we set a briefing schedule, very rapid. And then, a few hours later, the court, in a per curiam order, split ideologically completely.
54:23 Speaker 07 Vacated the stay and ordered the execution to go, just vacated the stay. And several hours later, the defendant was executed. What struck me, and the reason I put this in the prologue, is that, first of all, the court never mentioned our opinion at all. It acknowledged the disputed fact at the heart of the case. It acknowledged that there was a dispute of facts about the effect of this chemical on the condemned person, but said expedited, said that they emphasized the need for expedition. And they never resolved the factual dispute. They just emphasized the need for expedition. And at the end of their opinion, said, "Death penalty must remain with the people," and
55:08 Speaker 07 they vacated our decision. I put that in there because not only is it quite dramatic, but because it seems to me it's a good example of the problem with this court, which is that, I mean, appellate courts don't find facts. Appellate courts review facts found by the district court. And here we have a situation where the district court and the Court of Appeals both agreed that there was a factual dispute that had to be resolved before the execution went forward, yet the Supreme Court let it proceed without resolving the factual dispute, leaving the very real possibility that a man had been executed in violation of the Eighth Amendment.
55:50 Speaker 07 I thought that that was pretty emblematic of the problem with this court.
55:55 Kate Shaw? It is a really powerful opening, and it is an example of the way that today's Supreme Court has, as you say, veered off course. It's emblematic of all of that. And, you know, as the book proceeds, and in particular, in the last third of the book, you go very deep on many of the court's deeply misguided decisions in cases involving sort of a cluster of issues. First, kind of agency power and environmental law, and second, the right to vote and the law of democracy. And so we want to spend a little bit of time going deep on both of those topics.
56:26 Speaker 07 Sure.
56:27 Kate Shaw? And as to the first, we have spent quite a bit of time on the podcast, talking about West Virginia versus EPA, the K. In which the court, under the banner of its wholly invented major questions doctrine, invalidated the Obama administration's Clean Power Plan. And you talk about that case, but you actually start the story a bit earlier with two cases that we haven't talked much about, if at all, on this podcast. So first, the Whitman versus American Trucking Association case, and second, Massachusetts versus EPA. Although we all love not just FERC, but you know, administrative law, Arcana. We don't want to go too, too deep in the weeds of those cases. But can you just tell us a little bit about the shift from the court of those first two cases to the current court? And what that means, how we should understand it?
57:09 Speaker 07 Yeah, that's a really good question. And when I wrote this book, I decided what I wanted to do was just focus. I was not writing a broad criticism of the Supreme Court. I wanted to focus on the cases I knew best. And the difference between American Trucking and Mass. EPA on the one hand, and the current court is actually quite dramatic. So in American Trucking, there was a fairly standard EPA case. I was on the panel. And quite to my surprise, quite a bit to my surprise, the panel decided that the provision of the Cleaner Act that was guiding this was too vague and ambiguous to survive the non-delegation doctrine.
57:54 Speaker 07 Well, you know, the non-delegation doctrine had disappeared decades earlier. And I had to write a dissent. I was actually quite surprised. And I dissented in the case. It went to the Supreme Court, and the Supreme Court, nine, nothing, in an opinion by Justice Scalia, reversed and held that the general language in the Cleaner Act was the exact kind of language the court had sustained for decades. And that there wasn't any way federal judges should be making the kinds of decisions. That they would have to make if they got rid of the nondelegation doctrine. So, I mean, that was, that was, I, to be honest, wasn't surprised at the result.
58:38 Speaker 07 It was the Supreme Court applying well-accepted case law, its own case law. It had abandoned the nondelegation doctrine shortly after the New Deal, and it had, over the years, sustained dozens of statutes with just the kind of generic language that was at issue in the Clean Air Act. So that was an example of, you know, the court following its precedent. So then along comes Massa EPA. That was the first case. In that case, the question there was, the Bush administration had refused to regulate carbon dioxide. It said it wasn't a pollutant.
59:23 Speaker 07 And the environmental groups brought that case to the D.C. Circuit. And again, the Supreme Court reversed. This was a much closer call. It was five to four. Justice Stevens wrote the opinion. He ruled that, under the statute, actually, it was a Chevron one case. He ruled that the statute clearly included carbon dioxide, and then that triggered an obligation of EPA to issue emission standards. So here was another example of the court, this time just five to four, following the statute, applying the clear language of the statute, both in terms of the definition of the pollutant and the obligation that imposed on, on the Environmental Protection Agency.
1:00:07 Speaker 07 So, you know, those were, those were courts functioning as courts, following their precedent, respecting the statute.
1:00:16 Kate Shaw? And can you draw contrast between the court in those cases and the court in West Virginia versus EPA?
1:00:21 Speaker 07 Yeah. That was a challenge to Obama, President Obama's clean power plan. The case, the clean power plan required, although it was highly technical, the bottom line was that it essentially required, it set standards that were designed to move the nation's electrical grid from coal power to natural gas and eventually to renewables. It was to shift the power grid in that direction.
1:00:53 Speaker 07 The Clean Power Plan never went into effect because President Trump got elected and the Trump EPA withdrew the Clean Power Plan. But for a number of technical reasons that we won't go into here, the case ended up before the Supreme Court challenging the Clean Power Plan. Two dramatic differences here between what the court did here and what it did in American Trucking and Mass VP. The first thing is, it never should have decided the case. It was moot. The Clean Power Plan was over. It wasn't going to be implemented. By the time it came to the Supreme Court, the Biden administration was in power, and it made very clear that it was not going to implement the Clean Power Plan.
1:01:38 Speaker 07 So the case was moot. The court had no jurisdiction. But yet it went ahead and took the case anyway. And then the second thing it did was, instead of simply applying Chevron, which would have made this a fairly easy case, I mean, system of emission reduction. Well, that's not, you can't look at that provision and say it either does or doesn't include a requirement that the grid shift to renewables. It's an ambiguous term. It's a classic Chevron case that we see at the D.C. Circuit all the time. It could have simply moved on to Chevron 2 and decided whether or not the agency had
1:02:23 Speaker 07 acted reasonably. I think that was a hard case, actually. I could have justified, I could have written an opinion either way as to whether this was a reasonable interpretation of the statute. But the court, instead of doing that, adopted this major questions doctrine. They made it up. It wasn't in any statute. And the major questions doctrine, the court said, required that in cases of major importance that impact the economy broadly, Congress never would have intended the agency to interpret the law under those circumstances. Only the courts could do that. So.
1:03:02 Speaker 07 So they adopted this major questions doctrine and ruled that EPA had no authority to interpret the statute, that it had to be interpreted by the courts and that system of emission reduction precluded a grid wide solution to the problem.
1:03:18 Melissa Murray? And as we know, Judge Tatel, the Supreme Court in this last term did actually overrule Chevron and put the Chevron doctrine to bed, as it were. And that's at a time when so many Americans actually favor climate change reform, want to see greater regulations to preserve the climate. So, you know, this is sort of a question where the populace is out in front of the court on some of these questions. And I noticed that one of the chapters of your book is called "The Future of Democracy" and that seems to speak to this idea, you know, what are we going to do about a government for and by the people with a court like this one? And that seemed to me an invitation to discuss Shelby County versus Holder, the
1:04:03 Melissa Murray? 2013 case that invalidated the preclearance coverage formula of the Voting Rights Act, effectively dismantling the preclearance regime. We talk a lot about Shelby County on this podcast, but I don't think we've ever noted that you authored the D.C. Circuit opinion that the court reversed in Shelby County. So what's your perspective on Shelby County and its impact a decade later? What does this mean for the future of democracy? And how does Shelby County and the courts work in 2013 lend itself to the court we're seeing now, which seems to be really unconcerned with where the people are on some of these issues?
1:04:41 Speaker 07 So Shelby County, I think, the starting point for, again, I'm focusing now on the process of judging, not so much the result. Yes, as you suggest in your question, the results have been devastating for voting rights. But my chapter is about the way in which the Supreme Court reached that decision. In fact, I say in it that the Supreme Court could have come out the same way, in a principled way. I wouldn't have agreed with it, but it would have at least been an act of principled judging. The problem with the Shelby County
1:05:18 Speaker 07 decision is its blatant disregard of the plain language of the 15th Amendment. Section 2 of the 15th Amendment It's short, I think it's only 12 words. It says that Congress shall have authority to enforce this provision through, quote, "appropriate legislation." That was very intentional. Fifteenth Amendment was added to the Constitution after the Civil War. It was designed to limit state power, and it was designed to give the federal, designed to give Congress and the federal government the authority it needed to rid the country of voting discrimination based on race.
1:06:00 Speaker 07 That's what the Fifteenth Amendment was for, and Section 2 in particular gave that power to Congress. Until Shelby County, the Supreme Court had regularly sustained the constitutionality of the Voting Rights Act. Every time Congress extended it, the Supreme Court agreed, relying on this very plain language of the Fifteenth Amendment. Yes, Section 5 of the Fifteenth Amendment was a deep intrusion into state power, required states to submit any election change to the Justice Department for its approval. But the Supreme Court said, you know, under the Fifteenth Amendment, this is justified. Congress made the decision that that's what was needed.
1:06:45 Speaker 07 Fast forward to Shelby County. The first thing the Supreme Court does in Shelby County is that it takes a court-made-up doctrine called equal sovereignty. It's not in the Constitution. The second thing it did was, even though the Congress, under its Section 2 authority, had held weeks of hearings and developed a huge record on the basis of which it concluded that extending Section 5 preclearance for another 25 years was necessary, even though Congress had made that finding, the Supreme Court declared, made its own finding.
1:07:25 Speaker 07 It declared that the South had changed and that there was no longer a justification for continuing Section 5 preclearance. And what's really dramatic to me is that if you read the Shelby County opinion...
1:07:41 Speaker 07 What you see in it is a deep concern by the court about federalism. That's all it talks about. It doesn't mention the 15th Amendment until near the end of the opinion. It's all about the 10th Amendment and federalism and state authority. There's almost nothing in the opinion about voting discrimination or the victims of discrimination.
1:08:02 Melissa Murray? Well, it also seems to... I'm sorry, Judge. This is such an interesting point. You know, one of the things that always strikes me about reading Shelby County is how preoccupied Chief Justice Roberts is with the feelings of these states that are captured by this pre-coverage formula, like, you know, like... And I'm sort of like, what happened to the whole, like, we don't care about your feelings? We care about law and we care about principles. But he's really concerned that we've made these states feel bad because we've decided to make them subject to this preclearance regime.
1:08:33 Speaker 07 Yes, the whole opinion is about state autonomy, state federalism. That's the focus of the case. You know, this case isn't like Dobbs, where there's a dispute about the underlying constitutional right. Here, the Constitution is as clear as it can get. I don't know a provision in the Constitution that's as clear as Section 2 of the 15th Amendment. It gives the power to Congress. And the Supreme Court had agreed with that time and time again. But now, suddenly, this court invokes federalism and the autonomy of the states
1:09:14 Speaker 07 instead of focusing on the purposes of the 15th Amendment, namely, to eliminate voting discrimination.
1:09:20 Kate Shaw? So Judge, this is obviously a deeply problematic decision. And you write in your memoir that the current court's kind of refusal to abide by, you know, principles of judicial restraint, you know, accepted modes of interpretation in cases like Shelby County and others actually figured into your decision to retire when you did. So can you talk about that?
1:09:40 Speaker 07 Yes, and I'll just say one more thing about Shelby, which is that you asked about originalism at the beginning.
1:09:47 Speaker 07 An originalist should have had no problem with Shelby County. An originalist would have come out the other way. So my decision to retire was complex. There were a number of factors that influenced my decision. Federal judges, we all have lifetime appointments, but I never...
1:10:07 Speaker 07 Plan to stay forever. I was on the court for 30 years. I loved every day of it and every case. I truly did, even the FERC cases. But I wanted to retire at the top of my game, and I felt that's where I was. I think there are too many instances when federal judges maybe stay too long than they should. I didn't want to be one of them. I was also deeply affected by what happened with Justice Ginsburg. She was a friend. I was in her seat on the D.C. Circuit, and we had a lovely relationship
1:10:46 Speaker 07 and a huge admirer of hers, but I think she miscalculated here, and I didn't want that to happen to me. And also, now to get to the point you were asking, really, is that, yes, the changes in the Supreme Court affected me in the following sense. Like most appeals court judges, you know, I had experienced quite regularly the having the court review my work. I've been affirmed and I've been reversed. And being reversed didn't bother me as long as I thought the Supreme Court's decision was principled.
1:11:28 Speaker 07 If the court interpreted a statute differently than I did, fine, that's the court's job. Or if the Supreme Court viewed a Supreme Court precedent differently than I did. Yes, I didn't like being reversed, but it was okay because they were operating under the same rules I was operating under. My concern about this court is that that's no longer the case.
1:11:58 Kate Shaw? So, still on the topic of the Supreme Court, you know, court reform is definitely in the ether, and I'm just going to tease for our listeners that you discuss the prospect of court reform in the book, even detailing how your views have changed with regard to things like term limits. But for our final question, we have a really tough one, which is, why are dogs the best? I, of course, think my dog, Stevie Nicks, is the best. Melissa thinks her dog, Cole, is the best. Because he is. She thinks her dog, Shadow, is the best. But Vixen, on your telling, is just next level. So what makes Vixen so special?
1:12:32 Speaker 07 None of you have met Vixen.
1:12:35 Melissa Murray? I mean, the name is very intriguing.
1:12:37 Kate Shaw? I feel like I have through the book, but our listeners who haven't read it yet, please tell them a bit about Vixen.
1:12:42 Speaker 07 I'm very glad to hear you say that. That means a lot to me. I wanted Vixen to have a role in this book. By the way, I just want to say also that, you know, the other person in this book, of course, this book is really about my wife and me, Edie.
1:12:58 Melissa Murray? Yes.
1:12:59 Speaker 07 This is really a memoir about our lives together. And as magnificent as Vixen has been for me in terms of my life as a blind person, frankly, it pales in comparison to Edie's role in my life. So I didn't get a guide dog until I was 77 years old. I had been a mobility cane for decades. But for, and I explain all this in the book in some detail. I ultimately decided to get a guide dog. And Vixen is a now a seven-year-old German shepherd. She came to me when she was two. I was her first human. And she was my first
1:13:41 Speaker 07 guide dog. And learning to use a guide dog was one of the hardest things I've ever done. But it has changed. The chapter is called "The Dog That Changed My Life," and that is not an overstatement. Vixen has given me and Edie a level of physical independence, of mobility, that neither of us has had for decades. I'll just give you two examples. We live in the country, and we both like to walk on the beautiful dirt roads here in Castleton, Virginia. Until I got Vixen, we walked together, which we liked. We loved
1:14:21 Speaker 07 to walk together. But I couldn't go for a walk without Edie. Now with Vixen, this morning, I got up very early and Vixen and I went out for an hour walk. And I was able to do it myself, and Edie was able to do other things. So she's given us, here in the country, just a huge amount of independence. We still walk together, but sometimes Vixen and I go off on our own. In the city, when I went to the courthouse and now to my office, it used to be that Although I was pretty good with the cane, I needed guidance on certain roads because of the amount of traffic. And I use my law clerks and ED.
1:15:05 Speaker 07 And now I leave in the morning, Vixen and I leave in the morning, and we take the metro to work. She loves escalators and does a great job on the metro. And Vixen, so we have this independence that we haven't had in years. It's been really wonderful for both of us. And we just, we have this wonderful creature who we've both fallen deeply in love with. She's, she's an extraordinarily well-trained dog, as you can imagine. But she's also just a wonderful dog who plays. I mean, she's with me 24 hours a day, seven days a week.
1:15:50 Speaker 07 She travels with me. She's part of my life. I tried, in this book, to weave into the story the role she's played in my life, including my judging. And let me just finish with this. You asked at the beginning about how my views about blindness have changed. And I've said that writing this book required a kind of introspection that I had never engaged in before, about thinking deeply about why I did what I did and how I feel about blindness. And that's helped me speak more honestly and openly about blindness. Five years ago, I would not have had an interview like this.
1:16:34 Speaker 07 I would not have wanted you to ask me these questions, certainly not publicly and probably not in private. But the other reason why my comfort level has grown is because of Vixen. It's the dog and the book. When you have a guide dog, you can't not be a blind person. People want to talk to you about your dog and you. They ask, you know, when I was walking around with a cane, people wouldn't come up to me on the metro and say, oh, that's a really cool cane. How do you use it? But when I'm on the metro with Vixen, people want to talk about the dog. And I actually love it. I don't mind it at all.
1:17:15 Speaker 07 And so having Vixen has made me far more comfortable being open about my blindness and talking about it. And, and, and ultimately in writing a book that I hope will be inspirational, not only to people with disabilities, but you know what I really hope? I hope this book will be read by hiring partners and law firms and, and human, human relations people and corporations. And I could not have written this book. I could not have written a book like this without first going through the process of writing it.
1:17:55 Speaker 07 And secondly, having Vixen and how she's freed me to talk, to talk about it.
1:18:01 Melissa Murray? Well, we are very grateful to Vixen for paving the way for this terrific book and this amazing conversation, Judge Tatel. The book, listeners, is called Vision: A Memoir of Blindness and Justice, and it is available at all major booksellers. Judge David Tadel, what a pleasure it's been to have you with us today. Thank you so much for coming on the podcast and being part of Strict Scrutiny.
1:18:26 Speaker 07 Well, it's been a pleasure for me. And let's work on having Vixen meet your dogs.
1:18:31 Kate Shaw? Yes. It's a plan. Thank you so much, Judge.
1:18:34 Speaker 07 Thank you.
1:18:36 Kate Shaw? Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rauel. Michael Goldsmith is our associate producer. Audio support from Kyle Seglan and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production. And thanks to our digital team, Phoebe Bradford and Joe Motosky. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com/strickscrutinypodcast. And if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.
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