Supreme Court A Hot Mess

0:11Elie Mystal:Welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I'm joined by Kathy Rubino. Hey. And Chris Williams. Hello. Hello. There you go. All right. And we're doing the, there was a delay there that I was just like, not prepared for. All right. So we are doing what we usually do, which is give a rundown of the big stories from the week that was in legal over here at Above the Law. First, we, of course, do a little bit of... Oh, that's the sound that says we do small talk. Small talk. Okay. Yeah. So how's everybody doing? You know, living the dream over here. We are potty training my two-year-old.

0:54So yeah, this is this is a thing that's going on.

1:00Elie Mystal:Yeah, I don't really have much to report. Yeah. I don't really have much to report on my end just because I haven't been able to get out and do anything really the last few days. I was going to go into the city. Ellie Mistal, our former host of this show, now with the nation, was appearing at an event for Mike Sachs, who some folks know as a legal reporter, but who's now running for Congress. And Ellie was doing an event with him and I was meant to go to that, but then got waylaid by stuff and not able to make it down. So that was going to be my thing I could have chatted about, but. So you're telling us now what could have been small talk, but isn't actually small talk?

1:44Yeah, that's correct. Cool. Well, give the man kudos for inventing smaller talk as a segment. Well, but let's go on to the topic. So I had a pretty good weekend. Friend came down from D.C. His girlfriend was in a singing competition. It was like national. She got second place. So she's phenomenal. Shouts out to her. And took my mom to Polizzi. And it was a great time. She was like, this is so fancy. I've only seen stuff like this on TV shows. So I'm pretty much son of the weekend in that regard. and I finished season three of Squid Game. Look at you. You had a banger weekend over here. You know, writers without life outside of work are sad to read.

2:33So I try to do a little something every now and again and also it's just good for the heart. But yeah, no spoilers. I will say I do think it is worth a watch. Check it out if you've seen Squid Game's seasons one and two. And if you haven't, what are you doing? Go watch Squid Game. Get caught up on the pop culture, like Geist and what have you. But yeah, I had a really good weekend. Excellent. Well, all right then. So... Smaller talk is done.

3:02Elie Mystal:So we all, as a country, had a really terrible weekend. And that's because the Supreme Court finished out its... Well, that didn't really finish out its term, but functionally finished out its merits term. Let's put it that way. On Friday. And they did it with a series of horrific opinions each more horrific than the last. But there were, you know, going into that last week, there were, I guess it wasn't even just, we shouldn't just limit it to Friday. There were things going on that whole week that were bad as they tried to run down things. Yeah. I knew Friday was going to be bad because Thursday was horrible.

3:38Yeah, that's fair.

3:40Elie Mystal:So one thing that came down, though, not really on the merits side of things, but in the shadow docket side of things, this happened earlier in the week, And we had a story about it that did reasonably well. I think we'll talk generally about the court in a minute, but we'll start kind of with this one story as our anchor, which was we had the opinion in the DVD versus DHS, which sounds like a media war from the late 90s or something like that. It's not like you're about to talk about a tech battle or something. Yeah, exactly. But what it actually is, is the case in Boston where they're trying to send a bunch of people to South Sudan.

4:20Elie Mystal:The government is because it's not where any of those immigrants are from, but no one else wants to take them. So they're going to send them to a war zone in South Sudan. This is a issue. Not the onion. Yeah, no, not the onion. And this is an interesting case just because unlike kind of what's going on with some of those folks sent to El Salvador where we have no real reason to believe they've done anything. Most of the people involved in this case are criminal folks. But that said, that doesn't mean that they don't have the right to point out that they shouldn't go to the middle of a war zone if there's no other alternative.

4:58Yeah, I mean I think that it bears repeating and something I think gets lost a lot. But just because you've done a crime does not mean you have zero rights.

5:09Elie Mystal:Right. And what what happens in this case is so there was an effort to move them to these other countries. Ultimately, a lot of them are now in Djibouti kind of awaiting resolution of this. What the judge ordered is that these people need to be given a hearing with interpreters and their own lawyers and so on where as part of this process, you're allowed to have a hearing about whether or not the police the U.S. wants to send you is going to kill you. He says this is probably a one of those instances where that should be happening. Sure. Can you seek asylum from a place you're about to get deported to?

5:46Elie Mystal:Right. And look, this is, again, probably not people who are eligible for asylum, but they might be people that are eligible for being kept in U.S. prisons or something like that rather than sent over there. But so the relatively minor relief that he ordered, which was actually the relief that the government asked for at first, and then once they got it, they complained about it, was that they just get to have these hearings in Djibouti without having to be brought back to the US. Pretty simple. Then what happened is this makes it to the Supreme Court, and the Supreme Court on the shadow docket says, oh, you know, the injunction, we've decided that goes away.

6:28Elie Mystal:You know, it can be we're going to put a stay on it. We might bring it back, you know, later if depending on on how this case plays out. This therefore, you know, seemingly means the government can go ahead and act. But they do this. And this is what's kind of interesting about it from a lawyerly sense. A lot of people reported on the underlying story. But what was interesting as a lawyerly sense is that because it's on the shadow docket and judges don't like to – the Supreme Court justices don't like to acknowledge what they're doing on that docket. So the order is a paragraph of just like matter-of-factly, doop-doop-doop-doop, this is what we're doing.

7:08Elie Mystal:They don't explain themselves at all. So Justice Sotomayor takes an opportunity to expound upon it a little bit in dissent. And rather than just kind of say I disagree with this, she writes a lengthy dissent in which she explains why she thinks this is a problem but also inserts, I would say, some little time bombs. She puts in an explanation that there are different orders here. There's an injunction and then there's remedial orders and the remedial orders aren't actually here. Wink, wink, wink, which was which is true. So they so the judge had put on a preliminary injunction saying they had to not do anything in the in the, you know, in the interim, but also had some remedial orders of like, well, right now what you need to do is have these hearings.

8:01Elie Mystal:Those had not been you know, this is back to your civil procedure issue spotter. those had actually not been brought before the court. So after Sotomayor puts this in the dissent of like, if the majority is not going to characterize what the opinion says, she's going to do it for them. And so she puts this in there. And moments later, Judge Murphy in Boston is like, oh, okay. Well, then we're going to deny the stay of the remedial orders. I guess those weren't really in front of the Supreme Court. uh this so first off this is the thing with the shadow docket right if we're going to keep making law by not writing and defending it i think it's it's a new and fun use of the dissent function to characterize what the opinion is from dissent if the majority doesn't want to do it yeah and i think it bears repeating that the increased use of the shadow docket and the lack of written explanation as to what the shadow docket means is really disturbing, right?

9:05Like even at one point, Amy Coney Barrett said, you know, I wish people would just read the decisions, you know, because they insert, you know, their own personality into it or whatever. And it's like, yeah, but they're actually in this instance complaining about a shadow docket, which had nothing written. And the more and more we, the court uses the shadow docket to make law, I think it does really hurt its legitimacy in fundamental ways. It's something Alina Kagan has spoken about quite frequently. And it's just, it really only gets worse. And I think that, I think you characterize it as sort of outlawyering the majority.

9:42And I think that that's really true. And when you're kind of faced with these kind of problematic opinions, or not even opinions, but orders from the shadow docket, what remedy does justice have except for, you know, bearing witness to what's going on? And I think that Sotomayor really showed that there's some fast moves that can be made.

10:09Elie Mystal:Well, and I don't even know as though it's bearing witness. I think it really is. You brought up that Barrett quote, which was fairly infamous, where she says, well, then just read the opinion. and we explain everything. And it's like, it's almost like Sotomayor said, oh, really? That's a good point. Opinions can do a lot of, opinions can explain a lot. And just decided, well, if no one else is going to talk, I am. Which I thought was, I thought it was interesting. I think it could be, you know, we're stay tuned to see how this plays out in the future. A lot of right-wing outlets immediately started saying that these judges are disobeying the Supreme Court.

10:45Elie Mystal:But this goes back to another aspect. You know, we see this, it's been true uh dating back clear back to the student loan cases that from the biden administration a lot of people who just don't understand that rulings while the supreme court may be partisan it's not an institution built to be partisan right and so when they make a partisan ruling like we've decided you can't give student debt relief they didn't really do that they ruled on one one particular avenue of it and so biden did another one and that case never got to the Supreme Court. And this is the same sort of thing. And this is something that I think really speaks to the way in which the court getting more partisan is a problem for the country writ large, is that people assume it's trying to act like a Congress because it wants to act like a Congress, but the institution itself won't let it.

11:38Elie Mystal:And here we have another instance of that where they want to say, go ahead and send these people to South Sudan. That's the point. actually have to rule on the case or controversy before them. And if there's only one of the injunctions being appealed in front of them, then that's all they can actually do. Yeah. So we had some lawyer ball, which was very exciting to watch for those of you who are excited about that sort of thing.

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13:12Elie Mystal:Thank you. or use code NOHOLD at signup to claim 20 % off your first two months of service. All right, we're back. So then down the stretch, what we had were a bunch of opinions. We had an opinion in the birthright citizenship case. This one ultimately was not about birthright citizenship, but was just the majority saying we can't have district courts issuing injunctions that bind the whole country anymore. I mean, did they actually say it like that? Because I read it a little bit even more broadly than that, which is that judges can't. And so I'm not confident that an injunction that was issued by a circuit court panel wouldn't be overturned.

13:55They would never do that, right? Or upheld by a circuit court. But, you know, there's also a lot of the sort of potential remedies to the problem of a judge in Amarillo getting to issue a nationwide injunction that people have talked about that I think might still potentially run afoul of the decision.

14:14Elie Mystal:Right. Well, I mean, that was the that was the part of this that, you know, that gets annoying. A lot of the you know, there's kind of this trend in particular in in political argument from one side of the world where they look to see somebody saying the saying the same thing on the other way, kind of a both side of something and go like, yep, I agree. And so a lot of people started pointing to the complaints that were raised when one judge in Amarillo, which we keep bringing up that example, starts taking astroturfed fake client is fake part litigants and using those cases to issued nationwide injunctions that bound the Biden administration up to and up to having, you know, the State Department show up and explain foreign policy to him all the time.

15:03Elie Mystal:Things that are really egregious. The Supreme Court did nothing about that when that was going on other than to the kind of the judicial conferences abortive attempt to say that you can't choose your judge specifically if you're seeking a nationwide injunction. That was a rule proposed that the Fifth Circuit immediately said no. So that kind of didn't work. But that was the only reform that had been proposed up until now. There are reforms out there. So basically what back to my point about people point to it, there were a lot of complaints about that from the left during the when it was happening to the Biden administration.

15:41Elie Mystal:Now there's a lot of folks saying that this opinion is kind of a destruction of the rule of law is in real danger, which is also probably true. People are trying to say, see, they said the opposite earlier, which is not the case really because there's a big difference between an individual judge being selected doing that and what was going on here because I think a lot of folks – oh, yeah. No, I think you're right. I think a helpful way to kind of create the distinction is that previously the remedy in and of itself was never questioned as illegitimate. It was questioned as to whether or not you can file a lawsuit in a particular court such that you get a single judge who's necessarily going to rule on whether or not that remedy is applicable in that case.

16:28And so it was never the remedy that was questioned, but rather the way that you get to pick your judge.

16:33Elie Mystal:And the damage of it was that it allowed this sort of games playing. In this instance, in this particular case, it's not the opposite of games playing. The district judge in question is a Reagan appointee. I mean, no one was trying to game this system. This is just how it goes. What I will say about the reform situation is, though, is that in the past there were reforms that said, hey, maybe you don't get to choose your judge if it's a nationwide injunction. Or maybe – and this is one that I've seen proposed in a lot of places that I think makes a lot of sense. If you are seeking that kind of injunction, it has to be referred to a three-judge panel randomly picked from across the country.

17:15Elie Mystal:That way, if something's going to bind to the whole country, it has to be taken to another level. All the judges in the country kind of have to be on the wheel. It could potentially be in front of them. I've also heard that it be just referred to the D.C. District 2, which is another potential answer. But the point is there's lots of different reforms that could be done to this power. What this opinion did instead was say, let's not even allow this power to exist anymore. I mean, I think that this is really dangerous, first of all, because there are absolutely instances where you need this power.

17:52And I think the dissents do a really good job of kind of pointing out some of the more dire instances where that is true. But kind of to put a pin in that discussion, which I'm sure we'll have in a second, it also is really kind of foreshadowing in an unsettling way. Right. Because as we you just talked about, right, that when we had a Democratic president, you know, the right wing used this mechanism all the time and they were the biggest fans of it. And now it's not even on the table, which, you know, in the foreshadowing sense makes you wonder, is there going to be another election? You know, is there going to be a third term for for Trump?

18:29I think that, you know, if we go down a more dystopian path as a nation, this will be one of those moments that will really get a highlighter on it.

18:38Elie Mystal:Yeah. Now, Justice Barrett's decision does have a few carve outs in it. Oh, yeah, you could have a class action. I mean, meanwhile, the courts have been largely – Destroying those as well. Destroying your ability to create viable class actions, but whatever. So – and there's also – Justice Jackson writes really strong dissent here. Justice Barrett, like a good law professor, addresses that head on with a paragraph in which she goes, we're not going to deal with her arguments other than to say we disagree, which I wish I could write – could have written that on my 1L exam. It was super disrespectful, I thought, too, the way it was written.

19:16Elie Mystal:It was disrespectful, yes. It was also just – it was just giving up the game that these people have no argument. Like you can't be bothered to respond to the dissent. You know, that's fine if you don't even want to – if you want to just pretend it didn't happen. But at the point that they flagged it, it was just so embarrassing. It just looked like these people saw it, recognized it was a problem, and decided, eh. What if I didn't? So that happened. We had – now, the implications of this, of course, is now constitutional rights basically won't exist unless you bring suit in any real functional way.

19:58Elie Mystal:If somebody tries to go after birthright citizenship or some other thing that affects you as a member of that class, really, you're probably not going to be able to protect yourself from those abuses unless you, the individual, goes to court yourself with the exception of – there are these carve-outs for class actions, probably not really a reasonable, reliable response. There's some arguments to be made about attorneys general being able to bring broad claims, which I think that is pretty powerful. But that then still will limit it to states that have blue AGs. The other thing that I was going to say is this is particularly chilling when you couple it with a movement to force plaintiffs to put up large bonds when they're suing the government.

20:51Right. That is a movement that's happening. and I'm not sure if it's part of the current proposed bill. And if that happens, you're very much saying if you are not even just poor, right? If you are middle class, you have no realistic way to enforce your rights in court.

21:11Elie Mystal:Yeah. There is, the government can do whatever it wants to your rights because you can, there's no structure that can stop it. Mm hmm. Yeah. So, oh, yeah. Well, we had that. We had Justice Alito declaring open season on public schools, basically ruling that in a case that ostensibly is about an opt out, saying that you that parents should be able to remove their kids from any lesson that involves gay people existing. That, of course, seemingly you say, oh, it's just an opt out. But these opt outs become entirely unworkable. And more to the point, he and where it gets to be kind of the second level from most conversation about it is as opposed to trying to square peg round hole, the idea that there's some sort of a rational government interest in allowing this.

22:06Elie Mystal:Alito went a step further to advance the ball to saying that religious objections should have a strict scrutiny. This is rich considering this is the same court that said that you can force kids to pray with their coach. But nonetheless saying that this is strict scrutiny and that there has to be some sort of compelling interest, government interest in not allowing opt outs, which. the the reason this this takes it to a new level of course is that now there's not really any limit on what people can say i've decided this offends me religiously so schools can't teach it or more accurately so schools have to give me an opt-out which schools have a hard time administering and therefore to avoid that they will just stop teaching and when you think about it in terms of things like evolution right which people have religious objections to okay they opt out of their lessons on evolution, but what if it's still on, you know, the year-end statewide regents exam, right?

23:06Like all of a sudden, well, can they put that then on the regents exam? You see how it really is not just about the ability to opt out of specific lessons or this book that you may not want your kids to read in school, but really fundamentally is an attack on public education.

23:23Elie Mystal:You know, there's also, and this is a point that I make in a piece on it, they, This also comes to – there's – I read a book, Jason Kirk's book about – which is fiction, but about his experiences kind of growing up in the evangelical movement. There are a lot of evangelical churches that have fully taken independent political beliefs and bolted religiosity on them. I mean, there are churches in this country who think that talking about climate change is an attack on their religion. They're just bolting all of this into that. And when you have a society that's stretching the bounds of what religious faith is to include contemporary partisan politics, you now have given that a extra barrier of protection within the system.

24:19Elie Mystal:So now you really can't teach any of this stuff once people start to complain. Right. For what it's worth, as a religious tenant, I don't believe in Keynesian economics. So maybe there's something there. Yeah, and a lot of them don't. But yeah, no, it gets real out of hand real fast when you start employing this. Now, again, I would love somebody to take this strict scrutiny thing and relitigate the forced school prayer because I'm real interested to see how it goes now that it has a higher, stricter scrutiny. I'm sure this court would find a way to make it. My guess is they just find a way to shrug.