Pod Insights Strict Scrutiny SCOTUS Deals Massive Blow to Health Care Access About this episode In this emergency episode, Melissa, Leah and Kate are joined by Alexis McGill Johnson, president and CEO of Planned Parenthood, to unpack today’s ruling in Medina v. Planned Parenthood South Atlantic. They talk about what this could mean for patients and the devastating ripple effect it will have across the country. Also covered: the rest of today’s opinions and the Court’s cruel shadow docket order on “third country removals.”
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0:00 Leah Litman? Strict Scrutiny is brought to you by Americans United for Separation of Church and State. You don't destroy 250 years of secular democracy without gutting precedent, shattering norms, and dropping a few billion. The same people and groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and lives. Church-state separation is the bulwark blocking their agenda. One of the last bastions of church-state separation is our public school system. So they're pushing vouchers everywhere. They're arguing for religious public schools. Yes, you heard that right, religious public schools at the Supreme Court in a case we talked about on the podcast. If you're listening to us, you're seeing the writing on the wall. We can, we must, fight back. Join Americans
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0:53 Speaker 01 Mr. Chief Justice, may I please report? It's an old joke, but when I argue in Manhattan against two beautiful ladies like this, they're going to have the last word.
1:05 Speaker 02 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."
1:35 Leah Litman? Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Leah Litman.
1:44 Kate Shaw? And I'm Kate Shaw. And we are coming to you today with another emergency episode that is going to focus on the decision we got this morning in a case involving Planned Parenthood and Medicaid recipients' civil rights. We will then briefly note the other decisions we got today and a battery of legal news we want to bring you up to speed on, since the utter chaos goblins on the Supreme Court have indicated that tomorrow, Friday, is going to be their last decision day of the term. So that means tomorrow, they're going to be issuing six decisions, including on birthright citizenship, the Voting Rights Act, and more. Okay, so let's jump right into Medina versus Planned Parenthood. And we are delighted to be joined for this discussion by Alexis McGill Johnson, who is the president of Planned Parenthood. Alexis, thank you so much for joining the show. Thank you very much.
2:25 Leah Litman? So we are going to give some quick background, Alexis, before we bring you in, just so everyone is on the same page. The Medicaid Act allows indigent patients to get medical care from qualified providers. And although federal funds, like Medicaid funds, cannot be used to provide abortions, organizations such as Planned Parenthood provide many other forms of health care and, accordingly, are qualified providers for purposes of the Medicaid program. In 2018, South Carolina's governor issued an executive order axing Planned Parenthood from South Carolina's Medicaid program on the view that because money is fungible, subsidizing any health care that Planned Parenthood provides is akin to subsidizing abortion. Therefore, the state said Medicaid patients will not be reimbursed for any care they received at Planned Parenthood.
3:08 Leah Litman? That means, in effect, that Medicaid patients cannot use Planned Parenthood as a provider. Both Planned Parenthood and a patient filed suit, arguing that this violated the Medicaid Act by depriving patients of their right to receive health care from a qualified provider.
3:21 Melissa Murray? Now, listeners, the issue in this case is pretty dry and somewhat procedural, but it's really important for civil rights enforcement. Basically, the court was asked here to decide whether Medicaid providers and patients can sue under civil rights statutes to enforce their right to a qualified provider or to be a qualified provider under the Medicaid Act.
3:43 Kate Shaw? And today, Justice Neil Gorsuch for the six Republican justices said that states can defund Planned Parenthood in violation of federal law and get off scot-free. That is because the court said essentially the only way to enforce federal law or to respond to violations of federal law is for the federal government, and here, of course, that means the Trump administration, which is not going to do that, to intervene and to threaten to withhold a state's Medicaid funds as a penalty for violating the terms of the Act.
4:12 Leah Litman? As Kate just insinuated, that whole premise is obviously hilariously stupid because we know that the Trump administration isn't going to police any state's efforts to defund Planned Parenthood. So what this decision means is that there is largely no recourse that private litigants can take to enforce their rights if the federal government does not intervene to do so on their behalf. But hear me out, Melissa. What if Planned Parenthood started prescribing ketamine and heroin or handing out raw milk and whale juice?
4:43 Melissa Murray? Well, I mean, that is the kind of health care we can all get behind, Leah. So make America healthy again.
4:50 Kate Shaw? More seriously, while we have you with us, Alexis, we want to ask you to talk about some of the practical implications of this decision. And we will then get to sort of how insane the legal theory and the jettisoning of precedent is. So just what does prohibiting reimbursements do to healthcare access on the ground?
5:07 Melissa Murray? Well, first of all, as you described, like, there's not a line item in the state budget or in the federal budget for Planned Parenthood, right? We talk about defund efforts. What we are actually talking about is Planned Parenthood, like any other healthcare provider, provides services to patients and then builds insurance, whether that is private insurance or public insurance like Medicaid, in order to be reimbursed. And so when you take away the ability of patients who use Planned Parenthood, for whom we are their trusted provider, you deny them the dignity of choosing us as their provider. It means that if they are reliant on public health insurance, that they are not able to
5:50 Melissa Murray? come to a Planned Parenthood for STI testing and treatment, for cancer screenings, for wellness exams, for birth control, right, for gender-affirming care. These are the kinds of things that, you know, obviously are critical, essential, time-sensitive, and oftentimes life-affirming services that Planned Parenthood health centers provide across this country. And so when South Carolina says lawmakers are allowed to essentially weaponize Medicaid for their own ideological agenda and deny patients' access to care, it means the Supreme Court has now decided that not only can these patients be limited in access to going to Planned Parenthood, but they're also denied the justice of determining whether or not that insurance allows them to get that care.
6:35 Kate Shaw? So if they are going to be denied the ability to go to Planned Parenthood, what does that mean for individuals who may not have an easy time searching for other providers or, you know, are in rural areas? Like, what is the impact on them?
6:50 Melissa Murray? Right, right, because oftentimes Planned Parenthood is your first point of entry into a healthcare system, right? And certainly in rural areas.
6:56 Speaker 05 Where the majority of our health centers are and medically underserved areas where the majority of them are, you know, it's already hard to afford basic health care and see a provider. So instead of making access to care easier and more affordable, it means that people will have to travel longer. So the burden will be on the patient to travel. It means they may delay care because they may need more time to travel, depending on, you know, getting childcare, taking time off from work, what have you. And it may mean that they forego the care altogether. Those are the three options, you know. Actually, if I would add a fourth one in there, they may, because we are seeing a simultaneous defund of Planned Parenthood and increase in institutions like CPCs or pseudo healthcare
7:40 Speaker 05 agencies that are, you know, have a vehement anti-abortion bias to them, they may end up
7:46 Leah Litman? The whale juice providers, yeah.
7:48 Speaker 05 The whale juice ketamine providers, yeah. They may, in fact, go to places that may take Medicaid, but their medical care provision should be questioned, given the amount of misinformation they are offering to patients and denying them access to care.
8:02 Leah Litman? Alexis, you mentioned something I wanted to ask you about, which is the efforts thus far to try to defund Planned Parenthood. But just to underscore what you just said, you know, for people who might not realize this, the Amiki briefs in this case pointed out nearly half of all women of reproductive age in the United States live in places that are federally recognized healthcare shortages, and that problem is particularly acute for people living in rural areas. And more than 70% of Planned Parenthood's clinics are in rural areas. But Alexis, you mentioned the efforts thus far to defund Planned Parenthood. You know, what have we seen? What has been some of the fallout of the state efforts thus far to deny funding for care received at Planned Parenthood?
8:47 Speaker 05 The reality is, South Carolina and many other states have not expanded Medicaid under the Affordable Care Act, right? And so, they've already chosen not to support their constituents' basic health care need and build an appropriate free social safety net for their residents. And we've seen that across many states that are also states with abortion bans. At the same time, what this decision does is it opens up the floodgates for many of these states to kick Planned Parenthood out of Medicaid. So, the ripple effect of this decision, it's not limited to Planned Parenthood and it's certainly not limited to South Carolina. And, you know, I'd be remiss, you know, just leaving Congress today, that there is a federal
9:31 Speaker 05 effort to defund Planned Parenthood in the reconciliation bill right now, a provision intended to target, you know, quote, "big abortion," but really designed to target Planned Parenthood. That could limit access to Medicaid patients. One in two patients at Planned Parenthood receive Medicaid funding. So, essentially, an effort not only to put at risk 200 of our health centers, but to put at risk health centers that are largely in states with abortion access. So, I think 90% of those health centers would be in states where abortion is legal. So, it is an attempt not only to wrest away the power of people to use their health insurance
10:13 Speaker 05 at Planned Parenthood, it is also a backdoor abortion ban that could impact, obviously, anyone seeking access to abortion across the country.
10:20 Leah Litman? And I think that the efforts thus far to try to defund Planned Parenthood, kind of in other respects, we have seen studies done in those states. So, just to take an example, you know, Kansas prohibited residents from obtaining care at Planned Parenthood through the Title X program. And the aftermath of that was the state experienced more than 30% decline in annual pelvic exams and cancer screenings, as well as STI testing. So, the increased burdens and delays and possible not obtaining care at all, like, those are very real effects that happen when these states take these measures directed at Planned Parenthood.
10:55 Melissa Murray? I was going to make a similar point and really focus on Wisconsin, which is nominally a bluish state. So you don't necessarily think about Wisconsin as having limited access to healthcare resources. But when Wisconsin excluded Planned Parenthood and similar providers from its state level healthcare programs, it resulted in the shuttering of five family planning health centers in the most rural parts of that state. And it left more than 3,000 patients without access to healthcare. So when you talk about defunding Planned Parenthood, it is, as you said at the beginning, Alexis, not about eliminating a line item. It's about limiting the availability of certain providers to patients who already
11:38 Melissa Murray? don't have a lot of choice and depriving them of the dignity of making choices for themselves and their bodily autonomy going forward. And again, these are women who are really on the margins. And this is part of that attack on women's rights more generally. Alexis, you already said that you were on the Hill today for a number of different hearings regarding issues like this one. Do you have final thoughts as you think about what's going on in Washington, what happened at the court today, and what lies ahead for you and your colleagues at Planned Parenthood?
12:10 Speaker 05 What lies ahead is our resoluteness. I mean, we are going to stay fighting. We are going to stay and stand with the patients of Planned Parenthood because that is our mission to ensure that we are fighting to advance health equity, to ensure that no one is denied access to care because of their zip code, because of the state that they live in. And so we will be out here in these streets, as they say, doing all of that work and holding all of these electeds accountable for the votes that they are taking. Because clearly, votes have consequences, not only of the people who are pushing this big bad betrayal of a bill, but also the people that they also install in the highest courts
12:53 Speaker 05 and throughout our judiciary. So we will continue to fight and our providers will continue to open the doors where they can because it is also a mission and they are out there, literally on the front lines of tyranny. Ensuring that people get access to the care that they need. And every time a health center is shuttered, every time a provider is denied the ability to provide the care that they've been trained to deliver, every time a patient is denied the dignity of being able to choose a trusted provider, it causes more of a of a public health crisis. And Planned Parenthood sits at the intersection of of being a really critical part of the public health infrastructure, and we are going to fight to stay that way.
13:32 Melissa Murray? All right. That is Alexis McGill Johnson, the president and CEO of the Planned Parenthood Federation of America. And like Michael McDonald said, she is taking it to the streets. Thanks so much for joining us today, Alexis.
13:45 Speaker 05 Thank you.
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16:31 Leah Litman? Okay, so we are now going to talk about the illegal horseshit that the Republican justices- Technical term, a new technical term. Yes, they keep inventing or generating new ones. But the hootenanny that the Republican justices use- No, that sounds fun. -to get to this result. Okay, sorry. Okay, legal horseshit, the original, the OG. Okay. So as we alluded to in the summary of the case, the patients and provider here relied on the general civil rights statute, which is section 1983, to bring their case alleging this violation of the federal Medicaid Act. Section 1983 allows people to enforce rights, privileges, and immunities that are secured by federal law, like the Medicaid Act.
17:16 Leah Litman? But as Neil Gorsuch, the author of this opinion, would say, is the Medicaid Act really law? No, it's more law-ish.
17:26 Kate Shaw? Which is not really a Leah exaggeration. That is actually kind of the reasoning in the opinion. So he says, well, the Medicaid Act is a spending clause statute, an agreement between the federal government and the states that if the federal government provides some money, states have to do certain things. And so he deduces, that's more like a contract than like a law law, even though it is codified in the United States code like any other law. So the analysis in the opinion begins with a quote, though it is rare enough for any statute to confer an enforceable right, spending power statutes like Medicaid are especially unlikely to do so.
18:02 Melissa Murray? So longtime listeners, or just old people, might be thinking here, wait, wait a second. For almost 60 years, didn't the Supreme Court, not this Supreme Court necessarily, but earlier Supreme Courts, didn't they interpret spending clause statutes to permit private litigant enforcement suits under general civil rights statutes like Section 1983? Yes, they did. And indeed, just two years ago, this court rejected the cockamamie theory that spending clause statutes weren't really statutes, they were just contracts, and therefore couldn't be enforced through a general civil rights statute. So we actually have a long history of precedent of allowing private litigants to sue under
18:45 Melissa Murray? federal civil rights statutes to enforce their rights under federal laws. And this court was like, fuck it.
18:51 Leah Litman? And if you were thinking all of that, listeners, you would be correct. You have a better command of the court's case law than six of its justices. So in 2023, the decision two years ago that Melissa was referring to, that was in Health and Hospital Corporation of Marion County versus Talevsky, a seven to two majority of the Supreme Court, in an opinion by Justice Jackson, upheld a patient's ability to sue under Section 1983, the general civil rights statute, to enforce their rights under the Federal Nursing Home Reform Act. The majority opinion in Talevsky rejected the idea that spending clause statutes aren't really statutes, but rather are more like contracts that can't be enforced.
19:32 Leah Litman? Let me say this again, slowly, for the boys on the Supreme Court who might not be able to read, two years ago, seven members of this court agreed that recipients of public benefits programs could file suit under Section 1983 to enforce their rights under spending clause statutes.
19:54 Leah Litman? But stare decisis is for who?
19:56 Melissa Murray? Suckers.
19:57 Leah Litman? And precedent is for who?
19:59 Melissa Murray? Punks.
20:00 Leah Litman? Exactly.
20:01 Melissa Murray? And a constitution is for who?
20:03 Leah Litman? Cucks.
20:03 Melissa Murray? Cucks. All right.
20:05 Leah Litman? Civil rights also for cucks.
20:06 Melissa Murray? Also for cucks. So basically, folks.
20:09 Leah Litman? Actually, they're just for Christian white men. Sorry. My bad.
20:13 Melissa Murray? Basically, folks, what a way things have changed. And I'm just riffing here. Is it possible that things have changed because the administration has changed and maybe they feel a little bit better knowing that this administration is not going to enforce civil rights? So why don't we get rid of all the ways you can enforce civil rights in one fell swoop? I don't know. Just riffing here. Anyway, some genius named Neil, along with some of his genius colleagues, argued that Talefsky is distinguishable from the Medicaid statute at issue in this case because the statute in Talefsky, the Federal Nursing Home Reform Act, had what is known by Neil as rights conferring language. Now, Neil, I recognize
20:58 Melissa Murray? that reading is both fundamental but also hard. The provision at issue in this case is literally called free choice by individuals eligible for medical assistance. And that would suggest that the statute confers an entitlement, a choice, it's literally right there in the statute, on individuals. And when a statute confers a choice or an entitlement on individuals, we typically call that a right.
21:26 Leah Litman? But, Neil says, it doesn't say right, privilege, or entitlement.
21:31 Melissa Murray? Those are also synonyms, because synonyms, Neil, synonyms.
21:35 Leah Litman? Also for suckers. And in statutory interpretation circles, the failure to use specific words like right, privilege, or entitlement is known as the magic words canon. Psych, there is no magic words canon, until now. Justice Gorsuch and the majority are effectively saying that only those statutes that explicitly confer a right to sue or use the word right can be enforced under Section 1983.
21:59 Melissa Murray? Can I just point out here, a lot of these statutes were written at a total Totally different time. The Medicaid statute dates back to the 1960s. There was just a different milieu in which Congress didn't necessarily believe that it had to make explicit every fucking thing because it assumed that people could read and people could infer what they were trying to do, in part because they were fucking talking about it in their debates. They literally talked about creating the system of public benefits entitlement. So they didn't write in here, "We are specifically conferring a right." And so now this court, 60 years later, is just like, "But you didn't say the word 'right,' and that's wrong."
22:37 Kate Shaw? And I'm sure that if that argument were put to them, they'd say, "Well, Congress, now the rules have changed. Congress can just repass the Medicaid statute, put in the magic words that we require, no harm, no foul."
22:45 Melissa Murray? Just repass the Medicaid statute. What's the big deal?
22:48 Leah Litman? Guys at my high school did it all the time.
22:51 Melissa Murray? What is a Congress? Where can I get one?
22:54 Kate Shaw? Yeah, so that, I think, was a very important point, both about the absence of Congress, but also that they are pretty late in the day, radically changing the statutory rules of the road. And, sorry, guys, too bad, can't enforce these rights. And it's not just, I would say, about this kind of choice of provider language. The reasoning in the opinion does kind of seem to suggest that almost none of the requirements of the Medicaid program can be enforced by private individuals like this. So in addition to shitting all over the idea that spending clause statutes are actual laws, the majority says the fact that the Medicaid Act requires only that a state, quote, "comply substantially with a qualified provider requirement" means that the qualified provider requirement does not confer a right.
23:37 Kate Shaw? But that substantial compliance rule applies to other requirements in the Medicaid Act as well. And Neal also said the fact that the qualified provider requirement appears in the section labeled, quote, "contents" suggests it's not enforceable. But again, that's where a lot of the Medicaid Act's requirements reside. So let us pause to note that although this is a case about healthcare and Section 1983, this is also a case in which the court is continuing to enable the war on reproductive freedom and the war on women, three years, virtually to the day, after Dobbs.
24:13 Melissa Murray? We should also note that there are some separate opinions in this case, which means it is now time for our recurring weekly segment. We need to talk about Justice Thomas's concurrance. This is going to be a daily segment. For the next week. Sorry. Yes. Totally. Well, we can sum up this lone concurrence in Medina in just five words. Justice Thomas would go further. That is to say, Justice Thomas would go further to reconsider all of the court's spending clause jurisprudence. So he agrees with the outcome here, but he doesn't think it goes quite far enough. And he issues an invitation to litigants to launch litigation and lawsuits that are aimed
24:53 Melissa Murray? at hobbling civil rights enforcement across the board by reexamining the entire line of the court's spending clause precedents. And again, worth noting here, nobody on the court joined Justice Thomas in this conclarence. But that's really cold comfort here because this little ditty is on a rocket ship to the Fifth, Sixth, and Eighth Circuits, where I think the judges there are going to deploy its logic to great effect, and this will eventually get back up to the court.
25:24 Leah Litman? Slightly worried we should start calling these separate writings clairvoyances because they might see the future, or at least manifest it. In this case, there was a stinging dissent from Justice Jackson, who was the author of the opinion in Talewski. It is, as basically all of her recent opinions have been, a tour de force. She begins with the little history and tradition. As she notes, the Reconstruction Era civil rights statutes like Section 1983 were an exercise in grand ambition aimed at securing the rights of newly freed blacks against threats from the states. And just so we're all clear, she notes that the states, and South Carolina in particular, have a tradition, if you will, of trying to thwart the use of these statutes to enforce rights.
26:09 Leah Litman? I'm going to do a slight side note of a Fed Courts nerd, which is technically, this opinion rules out the idea that Section 1983 provides a cause of action to enforce the qualified provider provision. I don't think it rules out the possibility of a cause of action in equity under decisions like ex parte young of bringing such a lawsuit. That is technically an Independent cause of action. Now, do I think the Supreme Court would say the Medicaid Act might foreclose that equitable cause of action? Possibly, but I wonder if that becomes a possibility in the future down the line.
26:52 Melissa Murray? Well, I appreciate that intervention and the possibility that there might be other avenues that we ought to pursue going forward, but I want to come back to my earlier point, which is that this case is part of a broader concerted effort to close down avenues for civil rights enforcement. And I want to specifically draw a connection between this case, Medina, and the Voting Rights Act. So there is a major case coming to the court about whether private litigants can sue to enforce Section 2 of the VRA. The VRA is the nationwide ban on voter discrimination. And Justice Thomas and Justice Gorsuch, both in separate writings, launched this cockamamie
27:33 Melissa Murray? theory that Section 2 of the Voting Rights Act cannot be enforced by private litigants. It can only be enforced by the states or the federal government. And conservative groups latched on to that like, you know, a baby to a breast, if you will, and they have been on that for a long time now, and it's getting up to the court. It's so important to understand how these things are linked. If the VRA cannot be enforced by private litigants, it means that Section 2 can only be enforced by lawsuits brought by the federal government or the states. And if the states are doing the suppressing, they're unlikely to sue. And if the federal government is the Trump administration, they're not really interested
28:16 Melissa Murray? in suing to enforce the rights of underrepresented voters. So basically, private litigation is the only way to deal with these suppressive voter laws, especially in the wake of Shelby County versus Holder, which dismantled the Section 4, Section 5 preclearance regime. So I just want to say that this is the same move because there are no new ideas. They're simply migrating it from the voting rights context to the public benefits context and shutting down civil rights enforcement here in the context of Medicaid. But again, they know what's going to happen if public enforcement is the only game in town, and they really don't care. That's exactly what they want.
28:59 Kate Shaw? Yeah. And look, in the same way, they just said that spending clause laws are kind of law-ish. They kind of did the same thing with 15th Amendment legislation being kind of law-ish in Shelby County, which Melissa just referenced. So they're both kind of weakening the substantive enactments by Congress and then kind of cutting out the ability of private enforcement. And that two-step is one we have seen before.
29:21 Melissa Murray? No new ideas?
29:22 Kate Shaw? No.
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30:34 Speaker 06 Monday night is not just another weeknight. It's the last game of the football week, when one play can change the score, the conversation, or your fantasy matchup. And when the game gets good, the last thing you want to do is step away to figure out dinner and miss a moment. That's where DiGiorno comes in. Have a DiGiorno pizza ready to go before kickoff, then settle in for restaurant-quality taste, fresh from your own oven, while the game takes over. No stopping to figure out dinner when the matchup gets good. Stock up on DiGiorno over the weekend, so when Monday night rolls around, the only thing you sweat is the game. From the opening drive to the final snap, stay locked into the game and enjoy everything Monday Night Football brings. It's not delivery, it's DiGiorno.
31:24 Leah Litman? All right, so let's pivot because we got a few more cases, including one that delivered some actual good news in the sentencing case Hewitt versus United States. Hewitt concerned the practice known as, quote, "stacking of convictions" under 18 U.S.C. Section 924(c), which is a federal statute that prohibits using or carrying a firearm in connection with certain crimes. So before the passage of the First Step Act, prosecutors used to be able to stack 924(c) convictions in pretty outlandish ways. So let's say you were holding a gun while you sold three bags of drugs within 20 minutes. The prosecutors could say that those were three separate 924(c) crimes, and the law used to say judges had to stack, that is, like, put on top of one another, those 924(c) convictions.
32:07 Leah Litman? So if you had one conviction, it's five years, and then another would be 20 years on top of that, and a third, an additional 20 years. So this resulted in some truly savagely long sentences.
32:17 Melissa Murray? The First Step Act, though, curbed that practice. It applied the new, more reasonable rules, not only to offenses committed after the act was enacted, but also to, quote, "any offense committed before the date of enactment if a sentence for the offense has not been imposed as of such date." The question here, though, is whether the First Step Act applies only to a defendant who was initially sentenced after the act, or does it also include the defendant who was initially sentenced before the First Step Act but then had their sentence vacated, such that they had to be resentenced after the First Step Act was passed?
32:55 Leah Litman? Justice Jackson, writing for herself, plus the chief, and justices Sotomayor, Kagan, and Gorsuch, found that the sentence has not been imposed if the sentence has been vacated, meaning individuals with pre-act offenses and sentences that were vacated are eligible for the more lenient sentencing regime of the First Step Act. There's a lot of close parsing of text, tense, and grammar. Quote, "The operative phrase is not written in the past perfect tense, excluding anyone upon whom a sentence had been imposed. Rather, Congress employed the present perfect tense, thereby requiring evaluation of whether a, quote, 'sentence has been imposed upon the defendant.'" And then some general discussion of purpose, context, and legislative history, which the chief and Gorsuch don't join.
33:37 Melissa Murray? Which is really curious, given how much they love history and tradition.
33:41 Leah Litman? Not this kind.
33:43 Kate Shaw? True. Justice Alito, joined by Thomas and Kavanaugh and Barrett, was not surprisingly big mad about this sane sentencing ruling. So Alito claimed that these petitioners don't come close to meeting the statute's test. He also says, and I'm going to quote from his dissent here, quote, "animating the court's atextual interpretation is a thinly veiled desire to march in the parade of sentencing reform. But our role is to interpret the statute before us, not overhaul criminal sentencing." I think he's got parades on the brain.
34:14 Melissa Murray? Shorter version of that is, this court is abolitionist.
34:20 Melissa Murray? Justice Alito, in addition to decrying the abolitionist court, also writes that in the part of the opinion that the chief and Justice Gorsuch did not join, that is, the part of the opinion that is an all Democratic appointee plurality and thus clearly not binding precedent, that the court is making clear that its ardor for sentencing reform has clouded all judgment. This is what he had to say. Quote, "Perhaps realizing the weakness of their textual argument, the three justices think it wise to spruce up the opinion. They attempt to do so by asserting that when a bipartisan supermajority of Congress passes landmark legislation, it intends to go big, down to the very last subsection,
35:03 Melissa Murray? or here, application note to a subsection. So I gather they would have us broadly construe every atom of the landmark for step back in a way that furthers Congress's supposedly grand ambition to turn the page on harsh sentencing practices. But there is no landmark canon of construction requiring the court to construe important legislation to its furthest possible implication."
35:28 Melissa Murray? End quote. I actually wonder, like, so it hadn't occurred to me when I first read this, but is Justice Jackson trolling him in her Medina dissent by talking about the grand ambitions of the Reconstruction Congress? I like to think so.
35:43 Kate Shaw? Maybe.
35:44 Leah Litman? Maybe.
35:44 Melissa Murray? Maybe they're talking to each other and they're mutual dissents. I love this.
35:49 Leah Litman? So we got another sane opinion in Gutierrez versus Sands. By a vote of six to three, the court held that a man who had been sentenced to death has standing to challenge a state's refusal to conduct DNA testing on some evidence.
36:04 Kate Shaw? That's right. Some geniuses on the Fifth Circuit had said that someone who has been sentenced to death does not have standing to challenge the state's refusal to test evidence that might result in the person's exoneration or mitigation. The Fifth Circuit had reasoned that even if Mr. Gutierrez was successful in challenging Texas's refusal to conduct DNA testing on the ground that it would merely show he wasn't eligible for the death penalty but was still guilty of a crime, the prosecutor was unlikely to reverse course and allow testing. That is, the prosecutor would continue to deny Mr. Gutierrez access to testing even if he secured a favorable judgment.
36:39 Melissa Murray? And Justice Sotomayor, who wrote for the court, said, get real, you freaks. First, Mr. Gutierrez didn't just challenge Texas's refusal to supply DNA testing because it wouldn't show his innocence. He challenged the other barriers to DNA testing as well. And if the Supreme Court eliminated the theory or basis on which a state is denying access to DNA testing, that would likely redress Mr. Gutierrez's injury. Justices Alito, Thomas, and Gorsuch predictably dissented here. Justice Thomas's dissent said that Mr. Gutierrez has no liberty interest, that is, no constitutional right, at stake in this case, because the Constitution doesn't require states to create procedures to challenge a conviction after the fact.
37:21 Melissa Murray? So Justice Thomas deduces, when a state chooses to do so, they are doing you a solid, and that means they can do whatever the fuck they want. So, too bad, so sad.
37:31 Leah Litman? So he is not happy, and he whines that...
37:37 Leah Litman? The court's, quote, "intervention serves no purpose other than to exacerbate the already egregious delays endemic to capital litigation," end quote. Because the real victim here, the entity that's actually injured, is the state trying to execute someone without conducting DNA testing in the case. Justice Alito had the principal dissent, and it too bitches and moans about the length of time capital litigation takes, concluding with, quote, "This decision's only practical effect will be to aid and abet Gutierrez's efforts to run out the clock on the execution of his sentence," end quote, as if he's basically accusing the majority of committing in a crime, aiding and abetting. And the dissent argues, it concludes, Mr. Gutierrez doesn't have standing to challenge
38:17 Leah Litman? Texas's refusal to conduct DNA testing, and he is so fucking mad that this guy gets to test DNA evidence, Alito ends his dissent with, quote, "I therefore dissent, not even respectfully." This is what he holds out the not respectful for. It's wild.
38:34 Melissa Murray? I mean, it's an abolitionist court, Leah. You don't have to respect it.
38:38 Kate Shaw? And he doesn't.
38:40 Leah Litman? Respect is for carceral courts only.
38:44 Kate Shaw? I mean, he might have felt somewhat better that he got to write the opinion in the last case we got today, Riley versus Bondi, which is an incredibly complex immigration case that involved an individual who was subject to an order of removal to Jamaica, who was granted deferral of removal before an immigration judge based on the Convention Against Torture, but then lost his case before the Board of Immigration Appeals. And the question in this case was, as Justice Sotomayor described it in her dissent, when should he have petitioned for judicial review of the Board of Immigration Appeals' order? Within 30 days of that order, which seems like it makes sense, or within 30 days of being notified that he would be deported, way before the BIA had a chance to consider his case at all? Seems like the answer is clear, should be after the BIA rules against him, but the
39:27 Kate Shaw? majority in the Alito opinion, which should basically tell you how it comes down, held that the 30 days to challenge begins with a notification rather than with the BIA decision rendering his appeal untimely. But there was a second question in the case regarding whether this 30-day requirement was jurisdictional, that is, whether it was mandatory or discretionary or waivable. And the government actually didn't argue that this requirement was jurisdictional, so that's a question that remains open on remand. Justice Sotomayor's partial dissent was joined by the Democratic appointees and then joined in large part by Justice Gorsuch. All right, that's all we got today. And as we said at the outset, then there were six really big ones tomorrow. So got to hydrate between now and then.
40:10 Melissa Murray? Let's pick up some other news before we head out. On Monday night, we got an absolutely outlandish egregious order on the shadow docket in the case known as Department of Homeland Security versus DVD. This is the case about so-called third country removals. A third country removal is when the government deports you to a country other than your country of nationality or origin, and in this case, to a place that wasn't even designated for deportation in the removal order that required your deportation. And this may be a country to which you have absolutely zero connection. That matters because in some places, individuals who are
40:51 Melissa Murray? sent there may actually risk violence, torture, and more. And domestic and international law prevents the government from sending people to those places. And federal law requires that when they are being deported to one of those so-called third countries, individuals have the opportunity to raise claims like, I have no connection to this country, or I would face the risk of torture or violence in this country. And that clearly isn't happening in these cases.
41:18 Kate Shaw? So this is the case in which the federal government initially tried to send some foreign nationals to the third country of Libya, a place where people in prison are at risk of being trafficked and sold into slavery. The administration was unsuccessful in that effort, and then, in pretty clear defiance of the lower court's order, put some men largely from Southeast Asia on a plane to South Sudan, a country on the brink of civil war. It had given them 16 hours' notice, much of that overnight, without telling them they could challenge their removal to that destination or how they could do so. So a lower court required the government to afford people notice and opportunity to challenge their removal to a country other than the country designated as the country of removal in the deportation order. They couldn't have raised such a challenge earlier
42:00 Kate Shaw? because they were not on notice that they might be bound for South Sudan. And then, on Monday, after sitting on the application for, I think, like a month, the Supreme Court, without explanation, blocked the lower court decision in this case. There are so many egregious aspects to this decision, it is hard to know where to start.
42:18 Leah Litman? So I don't know, let's just begin with the court seemingly nullifying the guarantee of due process on the shadow docket and without explanation. Add to that, the gross miscalculation of the risk of irreparable harm and injury in the case. These men are not challenging the government's ability to remove them even to third countries. They just want the opportunity to raise a claim that removing them to particular third countries places them at severe risk of violence, torture, or even death in violation of domestic and international law. And on the government's side, what does the government lose? The opportunity to deny people due process. As Justice Sotomayor wrote in her dissent for the three Democratic appointees, "The
43:00 Leah Litman? government," she says, "didn't identify any irreparable harm it might face beyond, quote, 'the facially absurd contention that the executive is irreparably harmed anytime a court orders it temporarily to refrain from doing something it would like to do,' end quote." She adds, you know, on this point about not complying with a lower court order, quote, "by rewarding lawlessness, the court once again undermines that foundational principle," and that's a reference to due process, end quote. Just want to say, Justice Sotomayor, if you meant to send me a bat signal that you've read my book, Lawless, I picked it up, girl. Thank you.
43:39 Melissa Murray? All right. I love that you and SS have a little book club.
43:44 Leah Litman? Oprah, you're welcome, too.
43:47 Melissa Murray? Back to this egregious opinion. So we should also note the tension between the court's decisions on the shadow docket in cases involving the Alien Enemies Act, both litigation before Judge Boesberg and the Abrego-Garcia case. In both cases, the court made clear that due process does apply. In the Alien Enemies Act case, the court unanimously affirmed that the administration was bound to provide due process to individuals designated for removal under the AEA. The court wrote, quote, "AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removals occur."
44:31 Melissa Murray? But here, they aren't doing that. And the question is, why? Like, aren't these light cases?
44:38 Kate Shaw? Yeah, the court is saying, or not saying because it says nothing.
44:42 Leah Litman? Yes, that part.
44:44 Kate Shaw? They aren't entitled to due process here, even though unanimously the court concluded they were under the AEA. It is just maddening. And you add to that, absence of explanation, fatal tension between previous representations regarding due process and the facts here. So you add to that the utter contempt for the lower court and the rule of law that this unreasoned order evinces. So the lower court in this case had carefully and painstakingly managed this case over several months, including blocking the government from carrying out what would have been disastrous expulsions to Libya. And then the lower court prevented them from transferring custody and control of the men to somewhere in South Sudan. The government, as our friend Steve Vladek has also painstakingly detailed, has contemptuously
45:27 Kate Shaw? violated lower court orders in this case at least twice. And the government not only didn't punish them for doing so, it didn't even mention it, and it seemingly has actually rewarded it.
45:40 Leah Litman? Yeah, because it relieved the government of their continuing obligation to comply with the lower court's orders. As Justice Sotomayor wrote in her dissent for the three Democratic appointees, quote, "Each time this court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law," end quote. And in this case, she says the government behaved so badly, quote, "The government's posture resembles that of the arsonist who calls 911 to report firefighters for violating a local noise ordinance."
46:10 Melissa Murray? Speaking of giving the middle finger to the courts, we should also note a really interesting development, which is that Pamela Jo Bondi's DOJ has filed a lawsuit against every judge in the District of Maryland. I don't even know what to make of this. The complaint alleges that the chief judge of the District of Maryland, George L. Russell III, issued, quote, "An unlawful anti-democratic order in May that grants a two-day stay of deportation to any detainee in immigration custody who files a petition for habeas corpus," which is a lawsuit, again, alleging wrongful detention. And just to note here, we've talked about this a bunch. One of the reasons why that change
46:53 Melissa Murray? in the rule was issued was because the court was worried about losing jurisdiction over these cases if individuals were sent and deported to other countries and they didn't have jurisdiction over them. They couldn't issue orders to require the provision of due process and things like that. So this is a really kind of unprecedented development. I don't think I've ever heard of the federal government suing an entire federal district, the whole, the whole thing, like all the judges. Who's going to represent the judges? Who's going to hear this case?
47:25 Melissa Murray? It's wild. So truly uncharted waters here. Other news in the giving the middle finger to the courts segment of this podcast, the day before Emile Bove's confirmation hearing before the Senate for a seat on the Third Circuit, the New York Times reported that a whistleblower complaint had been filed by the former DOJ lawyer who was fired for conceding that Kilmar Abrego Garcia had been removed in error. The letter, which was filed by Ariz Ruvini's lawyer, said that Ruvini had been ordered by superiors to file a brief misrepresenting the facts after
48:04 Melissa Murray? he conceded that error in court. The whistleblower report also recounts the initial meetings at which the government discussed its plans to invoke the Alien Enemies Act and send people on planes to El Salvador. And at that meeting, Emile Bove, according to the report, allegedly, quote, stressed to all in attendance that the planes needed to take off no matter what. I hope that will be part of the questioning at his confirmation hearing for his life tenured position on the Third Circuit, a major federal appellate court.
48:37 Kate Shaw? I mean, because this whistleblower letter is coming out almost at the same time as Bove's confirmation hearing, I think it's, we're right to focus on what it should do to his prospects for confirmation. But I also just want to say, this letter is an absolute bombshell, separate and apart from this Court of Appeals nominee. It is a stunning.
48:57 Kate Shaw? Indictment of the lawlessness on display inside the Justice Department. Like, all of the worst things we thought were happening behind the scenes in some of this litigation were definitely happening. And the letter really merits, I think, reading in full. But in terms of, back to Bové, right? About the possibility of a court enjoining the removals before they occurred. Bové allegedly said that DOJ would need to consider telling the courts, quote, "Fuck you and ignore such order." He also-
49:24 Melissa Murray? As you do. As you do.
49:26 Kate Shaw? The whistleblower also suggests that Drew Ensign, who is the lawyer who appeared for the government, lied to Judge Boesberg when Ensign suggested that he didn't know whether any expulsions were imminent or planned. The letter alleges that it was Emile Bové who intervened and ordered DHS to ignore Judge Boesberg's order to turn the planes around.
49:44 Leah Litman? Just want to note that we might have had some investigation and fact finding into these matters, were it not for the fact that two Trump appointees issued an administrative stay of Judge Boesberg's order, finding probable cause for criminal contempt of his order directing the planes be turned around. That, quote, "administrative stay" was issued two months ago, on April 18th. Now, I am sure that the very delicate sensibilities of Senators Kennedy and Blackburn, who take great offense whenever harsh language is directed at the courts, were all over this whistleblower report like white on rice.
50:25 Melissa Murray? You know what? No.
50:26 Leah Litman? No.
50:27 Melissa Murray? Because Emile Bové is not married to Chris Hayes.
50:28 Leah Litman? Right. Yes. Not married to a liberal MSM.
50:31 Melissa Murray? I will not stand for the maligning of Chris Hayes in that way.
50:36 Leah Litman? Yeah.
50:38 Melissa Murray? Justice for Chris.
50:40 Leah Litman? You know, some of the senators did deign to ask Bové about this whistleblower report at his hearing, and we wanted to play one of those exchanges.
50:49 Speaker 07 Did you suggest telling the courts "fuck you" in any manner?
50:54 Speaker 07 I don't recall.
50:55 Leah Litman? That was, in case you didn't catch it, not a no.
50:59 Kate Shaw? Nope. Definitely not a no. If the answer that's no, you say that pretty clearly. That was not a no. As we've mentioned, let's just sort of pause to note again, this guy's being nominated to a federal judgeship. And A, a little unclear why he wants a job in a branch he seems to hold in such utter contempt, but B, this conduct should be wildly disqualifying. You think he's not going to like judgy judge the way most people judge? He might conceive of the role somewhat differently?
51:28 Leah Litman? I, that is what I am envisioning.
51:29 Kate Shaw? Okay, say more.
51:30 Leah Litman? I'm thinking he looks at what those DC Circuit judges did in pausing Boesberg's finding of contempt, and he thinks, I want to do that, too. I want to place the executive branch above the law. I saw John Roberts and Sam Alito do that last summer. That is what I aspire to.
51:49 Kate Shaw? Wait, when you say the court that John Roberts and Sam Alito sit on, is that what he aspires to?
51:54 Leah Litman? Oh, yeah.
51:55 Kate Shaw? Yeah. I think so, too. Which is pretty terrifying.
51:58 Leah Litman? Oh, yeah.
51:59 Kate Shaw? But that bovey conduct is actually not the only utterly disqualifying conduct for a potential judge that was reported on recently. So, moving on, Politico recently broke the story that a state judge, Ed Artao, was personally lobbying Trump for a federal court nomination and got one, but only after he sided with Trump in a defamation case. That was the one where Trump sued the Pulitzer Prize board for awarding and announcing Pulitzer is related to coverage of the Russia interference in the 2016 election. The state judge also personally met with Donald Trump, which is, I mean, pretty unusual for a district court nominee. And during hearings on district court judgeships, we had this exchange, which we just had to play for you.
52:45 Speaker 07 Do you agree with President Trump's comments that he is a sleazebag who hates America? Senator, I understand that you're asking me to comment on posts that the president has made on social media as a sitting judge and as a nominee to a federal vacancy. It would be inappropriate for me to comment on the content of the president's social media feed.
53:05 Leah Litman? And that was not Ed Artau, but another one of the district court nominees. But I just, I appreciated the trolling energy of that line of questioning. Anyways, so that is, I think, all we have time for today. Stay tuned for tomorrow when we are going to be getting six decisions. How many of them are big, bad, like really bad decisions? Unclear. My guess is at least three.
53:36 Kate Shaw? So end times tomorrow. Until then, take care of yourselves.
53:46 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. Jordan Thomas is our intern. Audio support from Kyle Seglan and Charlotte Landis. Music by Eddie Cooper. Production support from Katie Long and Adrian Hill. Matt DeGroot is our head of production. And thanks to our digital team, Ben Heathcote, Joe Motoski, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com/AtStrictScrutinyPodcast. 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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