Is SCOTUS Letting Trump Meddle in the Midterms?

25:57She said, quote, first, don't tamp down on the significance of the court's action in this case, end quote. So like even if the court ultimately doesn't allow this executive order or at least some of its parts to go into effect, like what they did here is just egregious. Totally. So we will obviously stay very focused over the course of the next week or even more on what the administration may be the First Circuit because this is a Massachusetts district court order that came down on Thursday. And then ultimately the Supreme Court does on this executive order and the litigation challenging it. I have a feeling we may be coming your way with more rapid response videos as circumstances require.

26:34So stay tuned for those. But in the meantime, let's move on to the rest of the week's developments. Strict Scrutiny is brought to you by the Knight First Amendment Institute at Columbia University. This September marks a quarter century since 9-11 and the inauguration of the global war on terror. Many of us will be reflecting on the losses of that day and on how its legacy still shapes lives in New York, across the country, and around the world. To reflect on the meaning of these events for the freedoms of speech and the press, the Knight First Amendment Institute is hosting a two-day symposium, the Forever War and the First Amendment.

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27:41Learn more at nightcolumbia.org. That's night with a K. This episode is presented by Planned Parenthood Federation of America. If you listen to the show, you already know. This administration, Congress, and the courts have spent the past few years making it harder to get health care in this country. And it's patients who are paying the price. Take the Supreme Court. It paved the way for states to exclude Planned Parenthood health centers from state Medicaid programs in Medina v. Planned Parenthood. This undoubtedly violates patients' right to get care from quality providers that they choose. And last year, the Trump administration and Congress defunded Planned Parenthood, trying to shut down Planned Parenthood and block patients with low incomes from birth control, cancer screenings, STI testing and more.

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28:45Yes. So in other happy news, a Supreme Court justice appeared on a podcast. Maybe this is why they didn't have time to read their previous opinions or the rule. But the Supreme Court justice. Logging onto the podcast consumes so much of their time. Exactly. But this podcast appearance kind of gave an absolute middle finger to everyone who cares about Supreme Court ethics and integrity because Clarence Thomas made an appearance on Ted Cruz's podcast, Verdict with Ted Cruz. So take a listen to one of the clips from the first segment here. It's also an opportunity to say you're one of the people who actually stands up, particularly at times when others seem to wither.

29:31And I appreciate it. And more personally, when my wife and I were under attack for obvious reasons, you and Mike Lee and some of the other friends would stand up, Senator Kennedy, et cetera. So I would really appreciate that. Justice, that is very kind of you and especially for you to observe that I stand up in the face of criticism and attacks. That is powerful coming from you because you're someone who knows what that's like. I just want to say I really did the Tia Masala this time by listening to this even though I know you have listened. Oh, I listened. I actually did. No, I did listen. I thought I was going to sort of do the masochist sort of dirty work for the team.

30:20And I only listened to the first installment. Did you listen to both? I listened to part of the second and then I just turned it off. I was like, I've done enough. I've done enough work here. But the clip you just heard would be Clarence Thomas, a very neutral, impartial, definitely not political justice of the Supreme Court, thanking a Republican senator, Ted Cruz, for defending Thomas when Thomas and his wife were, quote, under attack, by which I'm pretty sure Thomas is using to refer to when he was being criticized for receiving luxury gifts, including many undisclosed personal jet trips from a Republican megadonor and more generally having a billionaire BFF slash benefactor in Harlan Crowe.

31:02Yeah, that was a wild moment. You know, Justice Thomas loves to talk about the unfair attacks that he has endured. And so when he sort of launched, I've heard a lot of his bits before. And so I thought he was going to talk about the unfair attacks. That's in obviously scare quotes that he endured when Anita Hill disclosed that he had sexually harassed her. But then he mentioned Ted Cruz and Mike Lee coming to his defense. And so I was like, wait, that timing doesn't work. Oh, I guess he means the more recent unfair attacks around billionaire largesse. But this is a wild conversation. And I don't know if you felt this way, Leah, but it's like he is such a fascinating figure.

31:33And he's got so much both obvious intelligence and charisma and is such a profoundly broken and damaged and furious and bitter person. And it's like it's genuinely moving when he talks about his childhood in abject poverty in Pinpoint, Georgia. Like it really is. His memoir, My Grandfather's Son, was actually really, really good. And Ted Cruz starts the interview by being like, you wrote a great autobiography. And that doesn't quite explain why Ted Cruz felt the need to also write a biography apart from like maybe selling books. But also it's like we've said this before, but like people will do a lot to avoid going to therapy.

32:03And it's just like there is rarely a person you will hear talk about themselves. And going on Ted Cruz's podcast is part of that avoidance effort? I guess so. Anyway, it was a wild conversation. Well, who knows? Maybe Ted Cruz will get a free PJ trip to Cancun out of this. Guy can dream. Yeah, totally possible. I mean, has he actually not? I feel like he's probably received one of those in his life, but pure speculation on my part. In any event, the conversation, just the appearance at all on this podcast just felt like a real epic level of trolling and seemed to display without expressly touching the topic, real contempt for people trying to push for ethics reform at the Supreme Court.

32:43Yeah. OK, onward, because we do have other legal news to cover. Last week, Leah and guest host Somal Trivedi talked about the extradition request from Minnesota to Texas to have Texas extradite a former ICE agent who had been indicted in Minnesota for firing into a home and then lying about it. Well, there have been some developments because we have our first federal district court ruling in that case, and it sides with Texas. Yes, shocking because it's a Texas district court and a Trump appointee. And the siding with Texas is in a completely sort of bullshit procedural way, which is basically by concluding that we don't know that Texas Governor Greg Abbott won't comply with this extradition request.

33:22So the issue isn't ripe. Basically, says the court, Abbott hasn't refused Minnesota's request to sign an extradition warrant. He just hasn't responded yet. That is different. And so the case isn't ripe. Why do I feel like this logic sounds familiar? Yeah, using procedural, oh, it's just a little too early. Who is to say what might happen? And therefore, let's enable some lawlessness. Gee, ringing some bells, not sure where this could be coming from. But the court's reasoning is just utter BS because the lack of a response is functionally equivalent to a no. It means the former ICE agent is not extradited to Minnesota.

34:06And in fact, it resulted in the former ICE agent's release from custody since Texas law only allows the detention for 90 days. And then it just expires and it expired. Guy was released. Who knows? Maybe he, too, took a PGH trip to Cancun. Can't rule it out. And, you know, what Texas is doing here is, I think, like a real breakdown just in the idea of this is a union, that we are a United States where states don't nullify the valid enforcement of another state's laws in some sort of weird political brinksmanship. You know, especially when we're talking again about like conduct that occurred in the state that is actually trying to enforce its own law.

34:46Right. And occurred in the state is an important distinction between this effort, which is a legitimate one, and an effort by, say, Texas or Oklahoma. Have they both tried? I can't now recall, but to extradite providers of medication abortion who aren't anywhere near their states, in fact, are in places like New York. Those are very different kinds of extradition requests than this one where Minnesota says this agent shot someone in our state. Can we please have him so we can prosecute him? Entirely different. And it makes Texas basically a safe haven for federal lawlessness. Totally. Just run to Texas and you can get away with it.

35:19You're not – yeah, you're going to get away with it. You're not going to have to face justice wherever the misconduct allegedly occurred. Okay. A handful of other pieces of news, good, bad, and ugly. This first one, pretty good. So we got an order in the challenge brought by the Department of Defense – I'm going to keep calling it that – cancellation of a contract with Anthropic. And in a nearly 60-page ruling, a California district court held that the government had unlawfully retaliated against Anthropic for constitutionally protected activities. Here, those activities involved speaking up to caution about the ways its technology might be misused or abused.

35:55So just recall this dispute arises out of Anthropic's seeking assurances from the Department of Defense that its AI not be used for fully autonomous weapons or for domestic mass surveillance, which I gather it had some reason to worry that it might be used for. This request was such an affront to the Department of Defense and the federal government that they canceled their contract with Anthropic and designated them a supply chain risk, which I think is the first time the federal government has ever so designated a United States company. And it shouldn't require some kind of applause when a company stands up for its own bottom line because it's been cut off from this enormous source of business.

36:37But given how much of corporate America has decided not to fight back in the face of the administration's lawlessness, I am glad that Anthropic decided to file a lawsuit and that they got this – they notched this first win. So this is going to move on to ugly. Last week, the Fourth Circuit threw out a$42 million judgment that had been awarded to victims of torture in Iraq's Abu Ghraib prison. This is a case that had previously gone to trial and resulted in a significant verdict and award that had been upheld by the appeals court. But last week, that appeals court concluded that in light of the Supreme Court's decision from last June in Cisco Systems v.

37:19Doe, which gutted the alien tort statute, You know, there the court said that victims of human rights abuses and torture couldn't sue, right, a corporation that had allegedly aided and abetted the surveillance, torture and abuse. The Court of Appeals concluded that in light of that decision, it would have to reverse its prior decisions and throw out the award. It's just awful. And it's an important reminder that the harm inflicted by many of the court's decisions really only start when they are handed down and just multiply from there like some sort of weird infestation. Totally. And speaking of the fallout from Supreme Court opinions, we need to flag some developments involving still, for now, Fed Governor Lisa Cook.

38:01Recall that last June, the Supreme Court ruled against the Trump administration's effort to fire her by social media post. But the administration does not appear to be letting that stand as the last word on whether the president has the power to fire Cook. So last week, Cook submitted a letter responding to the White House's latest indications that it may move to fire her. They basically asked her to defend this series of allegations, spurious allegations that she'd engaged in mortgage fraud. She submitted a lengthy letter sort of detailing and responding to each of the allegations against her, making clear just how absurd they all are.

38:38But given, again, that the White House decided not just to cut its losses after SCOTUS ruled against it and seems maybe interested in continuing to try to pursue her, I wouldn't be at all surprised if they tried to fire her yet again. It seems really clear that the kind of process the Supreme Court said had to be followed in the case of removing an official like a Fed governor is not satisfied by saying write us a letter. Like there has to be more than that. So even on the court's own logic, which definitely like did not totally foreclose them trying again, but even on the court's own logic from that Cook opinion, I can't imagine that this stands as like sufficient process to justify firing her.

39:18But I don't know. It feels as though they're going to take another run at her. And so the case may be back before SCOTUS before long. Yeah. Speaking of our president, the poster, the president posted something where he purported to rank all, in his mind, past presidents in different categories. Obviously, at the top is himself the greatest. After that, there was a category for great, the near great, the average, the below average and the failures. some observations about this ranking. Ronald Reagan is just missing. I don't know if you like forgot that. A rhino. A famed rhino, Leah. That's why.

39:56Well, but like he put other, you know, rhinos or people he views as rhinos, obviously in certain categories. There were some Democrats who did. I mean, like even in contemporary sort of political terms who were like FDR was like in great, I think. Right. Yeah. So he was in great, you know, And then Clinton was an average. Obviously, Biden and Obama are failures. But one of the ones that like a few a pairing that stuck out to me is Andrew Johnson, the Confederate sympathizing president who tried to nullify Reconstruction is listed as average. While Ulysses S. Grant, union soldier, is below average.

40:33And it just makes you wonder what led to this ranking and what corners of the Internet did he get this from? I mean, I couldn't tell whether you're surprised by Andrew Johnson being average and not being higher or not being lower. I was surprised he wasn't higher. Because this is Trump's deranged mind. So actually if Trump knew – Well, I guess like he didn't think he was successful in ending Reconstruction quickly enough. Right, right. Or fully enough. Yeah, yeah. Okay, that's fair. I wondered with Grant, the reason that he was ranked below average actually had nothing to do with Reconstruction.

41:03But maybe was that – so there's all this sort of famed corruption in the Grant administration. I think it turns out, you know, historians feel differently about this. Chernow is like a really big Grant defender and says like it wasn't really his corruption. It was like underlings he didn't sufficiently supervise. But I was thinking maybe Trump faults Grant for failing to really get in on the corruption, letting the underlings get all the benefit. And so maybe a little bit more personal sort of grift and corruption might have bumped him at least to the average category. I see. Just a theory. Yeah, no, it's plausible.

41:36Totally. So that is all of the legal news. We are going to cover this particular episode. Now you can stay tuned for my conversation with Governor Roy Cooper about how there is still some aftershock and blast radius from many different Supreme Court decisions that are playing out on the ground in North Carolina with respect to democracy and elections. and then stay tuned for a conversation with Steve Vladek. And then after that, at the very end, we will give you our favorite things.

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44:19Hello, everyone. With the launch of our SCOTUS Reform bonus series, again, hot SCOTUS Reform September, we wanted to motivate the conversation in that series a little bit. Not that it really needs any motivation, but just in case. So I'm going to spend a little time talking about what the Supreme Court has meant for the upcoming midterm elections and what the upcoming midterms and 2028 elections might mean for the court. And to help me with that conversation, I am delighted to be joined by Roy Cooper, the former governor and attorney general of North Carolina and the future Democratic senator from North Carolina.

44:52Thanks for joining the show, Governor Cooper. Glad to be with you, Leah. Thank you so much. So as a Democratic governor of a purple state, you actually vetoed several Republican-supported bills that would have restricted ballot access and otherwise made the Democratic process less Democratic. Can you talk a little bit about that? You know, I think that often the Republican legislature was looking at ways to stop people from voting who they didn't think were going to vote for them. And there's unfortunately been a long history of those attempts in our state. It's fortunate that we've had the courts that have often stopped the worst of the worst.

45:29There was a famous Four Circuit decision saying that they had discriminated against Black voters with surgical precision, trying to figure out when and how Black voters voted and then trying to restrict those ways to vote. We don't have the good court backup that we used to have now. So that's a real concern going forward. We've already seen this legislature and now our new Republican State Board of Elections to restrict Sunday voting, to restrict voting boxes on campuses. And obviously we have seen their handiwork in extreme partisan gerrymandering at the command of the president here just lately, trying to draw districts where the representatives get to choose their voters instead of the other way around.

46:30And that's not the way we should do things. I'll tell you, there's two things that I will work mightily on when I get to the United States Senate. One is overturning Citizens United because of the amount of money involved in these races is unconscionable and it's got to stop. And secondly, finding a way to outlaw extreme partisan gerrymandering. I think those two things could help everyday people by the policies that will be passed as a result of them being passed. And it'll also help save our democracy. That's for sure. Yes. No, it gives people more power by making the country more democratic.

47:06You mentioned the loss of the courts as a backstop. And I just wanted to say a little bit more about how that has really affected North Carolina. So the Rucho v. Common Cause decision, the case that said federal courts can't do anything about partisan gerrymanders, actually arose out of North Carolina and was the Republican legislature's effort to get away with something that targeted Black voters with remarkable precision. And in the wake of Shelby County dismantling the preclearance process, that's when the Republican legislature passed that voter suppression bill that the federal court of appeals did say, you know, targeted black voters with surgical precision.

47:43And then when the Republicans gained control of the state Supreme Court, that court allowed the legislature to get away with the voter identification law as well as, you know, its partisan gerrymander. But you also mentioned Citizens United and money in politics and voter suppression and impeding ballot access aren't the only ways that Republicans, with the help of the U.S. Supreme Court, are shaping the upcoming midterms. So one of the big Supreme Court decisions from the end of last term that got a little crowded out by some of the other big decisions like birthright citizenship was NRSC, the National Republican Senate Committee, versus FEC, the Federal Election Commission.

48:18Just as a refresher, that decision eliminated what were called party coordination limits, and that cleared the way for political parties to fork over money to candidates. And that allowed the mega-rich to be able to pass more than$500 ,000 directly to candidates using parties as a conduit versus the$7 ,000 they were previously limited to giving to a candidate directly. Roy, how has the court's demolition of campaign finance affected your race in particular? Oh, significantly. But I have to, you mentioned a string of cases, and I have to point out one that I think is really important. Because North Carolina did have the case in front of the U.S.

48:58Supreme Court where that court had a chance to outlaw extreme partisan gerrymandering. And it was a close vote. And they ended up saying that it's too subjective. And that's why they didn't do it. And that's not true. I mean, you can use standard deviation. I mean, you can look at ways that districts are drawn in a way where they are too extreme in their partisanship. And just to have you know, briefly, Democrats controlled the state Supreme Court in North Carolina. They found that under our state constitution that extreme partisan gerrymandering was unlawful. And we sent seven Democrats and seven Republicans to Washington.

49:43That's who we are. Because it's a purple state. Yeah. We're a purple state. And then Republicans took over the court and overturned it. And now we're back to 10 to 4. Don't know what will happen this time, but that's just wrong on its face. This latest Supreme Court decision just allows more big money. It allows more billionaires and the most wealthy people to get into the system. And with these joint committees now that can be set up, it's virtually unlimited as to the amount of money that they can spend on these races. Already, it's unconscionable the amount of money that is there. This gives them a new avenue to just simply levy the parties.

50:30And already, you know, the RNC has, what,$130 million? I don't know. The DNC is in debt. So my opponent, Michael Watley, was the former RNC chair. So he's going to be first in line to get this money. And then another kicker, which I know you know about, is the fact that there is another case going on where the FCC said, not only are these joint committees okay, but we're now going to require TV advertisers to give them the lowest unit charge. which can often be a big. So now not only do the big money want to come in, they want a discount while they're at it. So the money can go even further. That's right.

51:15So that case is going to go to the Supreme Court and that will affect these small dollar donors who work really hard to try and elect candidates who are going to care about them. Knowing all this is coming at us, we encourage people to go to rorycooper.com. You can see my policy proposals, but you can also give us some help here to help us fight back against this big money that's now being allowed in more ways by the U.S. Supreme Court. Really frustrating. Yeah. And just to link what the FCC is doing also to the Supreme Court, you know, the Supreme Court essentially ended independent agencies, giving the Trump administration more control over what these agencies do.

51:59And now the combination of the end of party contribution limits and the end of independent agencies have created this world where the RNC and other campaign committees can now spend all of this money on your opponent's ads and get a legally mandated discount while they are doing it. And again, this is not democratic. It is allowing people in power to write rules so that they can stay in power. The FCC now is controlled by the Republican Party, by the Trump administration, has no independence. How in the world would it just come up out of the blue and send a letter to television stations saying that you have to give a discounted rate to these new big money joint committees?

52:46I mean, just out of the room, no case, sending a letter to them, this is what you have to do. In clear violation of the law. Right. Because the law limits it to candidate committees. And John Ossoff and Sherry Brown and myself and some House members, we sued to say, wait a minute, that's not what the law says. And the circuit court agreed with us, saying, this law is pretty clear. But now it's likely to go to the U.S. Supreme Court. They're arguing some standing issues. Of course. The law is black and white. And the discounts should be limited to the candidates who are limited in the amount of money that they can get, which is the way the rules should be.

53:35And this is where our grassroots contributors can make a real difference. And what the FCC and the Republicans and the Trump administration are trying to do is to make their contributions less effective by giving the billionaires and the big money people the very same discount that candidates now get. Yeah, no, that is just kind of wild. You know, this court, unfortunately, has a, let's say, a tendency to use the idea that no one has standing or no one is injured by this anti-democratic behavior to allow some anti-democratic behavior. So fingers crossed that does not happen with the FCC challenge.

54:16But it's not just, I don't think, like the influx of dark money that is the result of the Supreme Court's decision. It's also what this dark money is doing. It's generating all kinds of shady and not in a good way, like borderline deceitful ads. Is it not? There's no borderline about it. They're out and out false. They're deceitful. They've got attack ads running against me now in North Carolina on crime. One of the cases is a case that was in South Carolina, occurred in South Carolina by a South Carolina criminal who was let out of South Carolina jail. And that's somehow my fault. I'm pretty sure the Republican controlled legislature tried to limit your power, not give you additional power over South Carolina, if that's if that's not right.

55:09But it's so absurd. And the irony of it is that I am the only one in this race who actually prosecuted violent criminals and who actually worked to keep them behind bars. But they have no relation to the truth. And they're able to put these hundreds of millions of dollars. And if you say the same lie enough, then people can start believing it. But, you know, you talk about being tough on crime. My opponent, Michael Wiley, who, you know, when asked why he was running, he said, because the president asked me to. And it's clear that he will do and say whatever the president tells him to do and say, regardless of whether it's good for the people of North Carolina.

55:55But he says he's tough on crime, yet he appointed to an important Republican Party position a convicted child molester who served six years in prison for his crimes, was on the sex offender registry. And he did this over the objection of a number of Republicans who said, we can't have this. This position allowed him to be in contact with children and young people. And he did it because the guy could raise money. And that's putting politics in front of public safety. And certainly, I think that's the real soft on crime when you're talking about Michael Watley. Yeah. Well, listeners, hopefully this has been an informative conversation about how the Supreme Court's anti-democratic hijinks are already affecting democracy on the ground and also highlights the importance of ensuring the Supreme Court and the Republican-controlled legislature don't get away with these anti-democratic hijinks.

56:57Governor Cooper, thank you so much for taking the time to join the show. We really appreciate it. Thanks, Leah. All the best, okay? Thank you. And if you want to learn more about how we can possibly fix this Supreme Court and what it is doing to our democracy, be sure to stay tuned for my conversation with Steve Vladek on Supreme Court reform, which is next. Strict Scrutiny is brought to you by Quince. Back to school, back to school, which means it's time to get some Quince. Those are the rules. Quince specializes in everyday staples that work harder, like their ultra soft organic cotton tees and premium Mongolian cashmere sweaters.

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59:13Hi, everyone. I'm here with Steve Ladek, professor at Georgetown Law, author of the one first substack that's frequently in our favorite things, the bestselling author of The Shatter Docket, author of this year's Harvard Law Review Forward, and also some kind of field marshal, according to Judge Edith Jones of the No Good, Very Bad Fifth Circuit. Welcome back to Strict Scrutiny, Steve. Thanks. Although, actually, it was Mitch McConnell who called me the field marshal of the academic project to undermine the federal judiciary. My bad. Yeah, what Judge Jones said was much worse. Okay. Fair enough.

59:48I guess that's why I went with that one. So this is actually a very special segment. It's an introduction to a series we're going to be running starting on Thursdays as bonus episodes from here on out. The series is about Supreme Court reform. Yes, it is hot Supreme Court reform September. And to kick it off and get you interested, we are starting with Steve. So the basic conceit of the series is as follows. Each episode or segment in this case will focus on one kind of Supreme Court reform. We'll go through some standard questions, what the reform is, what it would address, what are possible legal issues with it and whatnot, so that you are equipped with a lot more information about Supreme Court reform than you are now.

1:00:28You ready, Steve? Born ready. For this topic, you indeed were. Okay, so we're going to start with some more general questions. I wanted to ask you first, what is one of your least favorite things about the court or one of the biggest things that you think has gone wrong at the court? Hmm. I have so many things. It's like there's like that notebook, right? Things that this report has done to piss me off. And it's a long notebook. I guess I would put a lot of things, Leah, under the general umbrella of things have gone wrong because Congress has taken its hands off of the court. And, you know, this is a real theme of my upcoming book, The Court We Need, which is that for a lot of our history, for better or for worse, Congress did lots of things big and small, basically to nudge the court and to leverage the court.

1:01:20And the court in turn was irregularly looking over its shoulder or for much of its history up through the ceiling at Congress. And then I think, you know, a big part of what has gone wrong with the Supreme Court is that Congress has stopped. You know, Congress doesn't control the court's budget the way it used to. It doesn't control the court's docket the way it used to. It doesn't control the justices' travel or the court's calendar or anything else about the court the way that it used to. And the result is, you know, as someone I know once said, the YOLO court. Because, you know, part of why the court can live once is because it doesn't have to worry about repercussions for almost anything.

1:01:57And that's new. And I think that's actually the source of a lot of the mischief with the court we have. Okay. So then maybe going a little bit more specific, just to the past Supreme Court term, I guess still ongoing. What is your least favorite slash worst thing the court did last term? Yeesh. Again, it's so many options. I know. It's like asking a Mets fan, right? What is the thing that has gone most wrong with the team this year? Your answer is like everything. I'm going to go in a bit of a weird direction and say that I actually think the worst thing that the court did this term was the series of emergency docket rulings in redistricting cases.

1:02:38because whatever you think of the substance of Calais and the court's, you know, to my mind, deeply problematic interpretation of Section 2 of the Voting Rights Act, the zeal with which the court moved to put it into immediate effect in Louisiana and Alabama and the sort of machinations the court had already undertaken in the Texas and New York redistricting cases really, Leah, to me are the biggest black eye that the court gave itself this term because it just looked so transparently partisan. And it was such an obvious breach from the court's own prior commitment to what it claimed was a principle that I would say, you know, for as bad as, you know, I think slaughter was and for as problematic as I think four dissenting votes on the constitutional question and Barbara were, I actually think that this was somehow worse.

1:03:28Okay. So in both of your answers, you alluded to shadow docket, Supreme Court's docket. And the reform I wanted to talk to you about is, of course, docket reform. So I guess first, just basic, what do we mean when we say docket reform? So I think people actually mean different things. You know, I tend to think of docket reform as an umbrella conversation that basically has at its core Congress reasserting more control over which cases the Supreme Court hears and potentially how it hears them. Right. And so that's, you know, you could view that purely as a merits docket question about certiorari.

1:04:11You could view that as an emergency docket question about sort of tightening up the standards or even limiting the court's formal authority. But however you frame it, it's all to me about, you know, Congress doing more basically to tell the court what it can and can't hear. Right. And just to underscore certiorari and merits docket, you know, maybe for people who might be listening into this not knowing a ton about the court, the merits docket just refers to the set of cases that the court hears with oral argument after full briefing. And the vast, vast, vast majority of those cases come from the certiorari docket.

1:04:44And that means they are discretionary. The Supreme Court itself chooses which cases it's going to hear and which cases to put on that full merits docket. Right. Fifty-five of the 56 cases the court decided after plenary review during the current term, right, of the 56 signed decisions we got in argue cases, 55 of them were cases the justices chose. Only Calais, as it turns out, was not. And even in Calais, they rewrote the questions presented. So, you know, this is a dominant feature of the Supreme Court's docket over the last 38 years. But, Leah, as you know, this was not always so. That Congress used to actually exercise much more control over every case the court heard and over the means by which it heard them.

1:05:27And that's, to me, the heart of the conversation about docket reform. So can you give some examples about what you're referring to when you say Congress used to exercise a lot more control over the kinds of cases that the court heard and also in what capacity it heard them? Sure. So until 1891, so for the first basically 101 plus years since the court started in 1790, the court had zero control over its docket. There was no discretion. There was no certiorari. Basically, the cases the Supreme Court heard were cases within its mandatory appellate jurisdiction that a party took to the court on appeal or that the lower court judges certified.

1:06:09That was a common procedure in the 19th century. What that meant was that there was no, oh, we don't want to take this case move available to the Supreme Court. If the court had jurisdiction and if the right party invoked that jurisdiction, the justices had to decide that case. So much so that Chief Justice Marshall will say in Cohen's versus Virginia in 1821, literally, we have no discretion to not hear cases. It would be treason to the Constitution if we declined to hear a case within our jurisdiction. That was how things worked all the way up until the late 19th century, at which point it became a huge problem because the court had too many cases it had to hear.

1:06:49But that was the norm for the first century. And no one ever suggested it was unconstitutional. constitutional. Indeed, it was just the way the court operated. Right. And then after that, you know, Congress kind of begins to give the Supreme Court a little bit more discretion, but still establishes some cases that they decide, you know, the court has to hear. And there is now still a mandatory docket, but it is much smaller, you know, relative to what it once was. That's right. And I would say two quick things on that. So the first is the most common, it gets a little nerdy if you go all the way into the weeds, but by volume, the most common source of mandatory appeals, appeals the Supreme Court had to hear in the 20th century, were cases that went to these so-called three-judge district courts.

1:07:32So challenges to state or federal laws on constitutional grounds where Congress said, we don't want a single federal judge to be able to do this whole thing. We want a combination of— Cough, Matthew Kazmierich. It's almost like they anticipated this problem. You know, history doesn't repeat. It just rhymes, right? And the three-judged district court was a staple of challenges to state laws as early as 1910 and challenges to federal laws as early as 1937. And what's fascinating is Congress scaled that back rather than actually radically restructuring the court's jurisdiction so that by the time we get to the last real reform of the court's jurisdiction in 1988, Congress had already gotten rid of three-judged district courts in almost every context, except the ones we still see today, except a small number of campaign finance cases and certain but not all challenges to congressional districting.

1:08:26Yeah. Okay. So then what problem or problems would this kind of docket reform where Congress just exercises more control over what the Supreme Court does, kinds of cases it hears, what problem or problems would it address? So I think the first problem, and this is the most obvious and I think indisputable one, is how much the court's docket has shrunk. So, you know, I mentioned 56 was the total number of signed decisions this term. That's, I think, the sixth or seventh straight term all the way back to COVID, where the court hasn't even gotten to 60 decisions in argued cases. Because the 60 number is interesting because before COVID, the last time the court had decided so few cases was 1864, you know, just a few years ago.

1:09:12Was something going on then? I know, right. But not even Justice Thomas was on the court yet. And I mention that because, you know, a lot of folks will say, wait, you want this court deciding more cases? That seems like a bad idea. But the key is the justices right now can take almost any case they want. The problem is that the cases they're not taking that they should. And so, you know, the first problem it would solve is you would have more of the court's docket. And we'll talk about sort of specific ways to do this. But more of the court's docket would be sort of cases that aren't just these red meat culture war, you know, super ideologically divisive cases where, frankly, love or hate the court.

1:09:54It only has so much capital. Right. And it only has, I think, so much of an ability to handle those cases as opposed to more, for lack of a better word, like nerdy, lawyerly cases that don't make headlines. Yeah. OK, so then now maybe let's shift to some specific docket reforms just to give people some examples about what that might entail. And again, docket reform could encompass so many different specific proposals. So we're just going to kind of tick through some. Some I know that you have endorsed or expressed support of and others that are just kind of out there in the ether. So maybe let's start with some of the proposed reforms to the shadow docket emergency docket, because obviously when people think of what has gone wrong with the court's docket, they often think of the shadow docket.

1:10:39I would say thanks to you, but it's really thanks to them and what they have done. But anyways, OK. I'm very happy to give them the credit for that. Yes, me too. So one suggestion that I think you have written about is that Congress could codify the legal tests or standards for when the court can actually grant relief or certain kinds of relief on the shadow docket. Could you say a little bit more about what you might be envisioning and why you think that might be a good thing? Yes. So it's already the case that when the Supreme Court is granting or denying an emergency application, it's exercising appellate jurisdiction.

1:11:17It's exercising jurisdiction Congress has already conferred by statute. You know, the court is not ever especially careful about which statute it's using in those cases. But I think that the really important point here is that it's a concession, that this is all controlled by Congress in the first place. And, you know, Lee, as you know, one of, I think, the most sort of consistent doctrinal critiques of the court's behavior on emergency applications in recent years is that the justices are not consistently following what they have previously said are the criteria for the different types of emergency relief.

1:11:51You know, Congress writing them down wouldn't force the justices to follow them, but it seems like it would be a salutary development to say, we mean it. Right. Congress could define irreparable harm. And in the process, you know, I can get rid of the court's deeply problematic view that the government is irreparably harmed whenever it's enjoined. Congress could say that's not true for purposes of emergency relief. Congress could require the court, as Justice Jackson has urged it, to have to balance the equities even when it thinks that, you know, the merits are going to drive most of the analysis of whether to grant emergency relief.

1:12:32You know, I think there's more debate, and you and I may even disagree a little bit, about whether Congress could require the court to write, for example, in these cases. Yeah, I was going to ask you about that one. Yeah, I mean, you know, I get a little squeamish about Congress telling the court how to do its job as opposed to telling the court what powers it has. But you and I have always fought about United States versus Klein and where the Article III line is. I don't think it's worth getting lost on that sort of very fringe academic debate. The real point is Congress could do a heck of a lot to clarify what the tests are and to basically nudge the court to actually follow those tests, even if it's not going to sort of go all the way toward you must write a 20 page opinion in every single case.

1:13:16Yeah. So I'm not going to go down the rabbit hole of what is a specific legal issue with Congress maybe requiring the court to issue an opinion or explain itself. But I do just want to flag that there is potentially one. And what that suggests is there might be some, let's say, constitutional challenges to statutes or legislation that attempted to carry out some docket reforms that you might think is a good idea. You know, on this requiring explanation bit, you know, I'm personally of the view that I think they should require some explanation, maybe not like a 20-page opinion, but something about the merits, the balancing of the equities and irreparable harm, maybe not before they grant relief, but within a certain period of time after at a minimum.

1:13:59I think it's a salutary policy idea, right? I just – my concern is there's so little plausible constitutional objection to everything else we've talked about to this point. Yes. Right? And so I think it's part of that's just a risk tolerance question for the policy reformers, which is, you know, codifying the standards, redefining irreparable harm. Like there's no viable constitutional challenge to that versus like would you also include provisions that could plausibly be challenged? And that's – I think reasonable folks will just disagree about that. You say that and yet you and I both know someone will discover in emerging literature that they will themselves manifest and create.

1:14:39I was going to say discover. I was going to say conjure. But I don't want to lose the more important point here, which is that, you know, this is true of almost any particular docket reform conversation. There are so many different pathways that would raise just zero constitutional – zero reasonable constitutional hackles. And I think we can flag for folks that whether Congress could force the court to write or not would be one of the ones where there would be a serious constitutional question. Right? But could Congress ratchet up the standard? Could Congress redefine irreparable harm? I just think there's no question the answer to that is yes.

1:15:15Yeah. OK, so now I want to go to Merritt's docket, like regular docket, and ask you about some reforms there. One, I guess, is the ones you were kind of alluding to about requiring the court to hear some set of additional cases. And in part because I imagine people will have the reaction that you were gesturing to, why would you want this court to hear more? Could you just kind of spin out some examples of possible expansions to the mandatory jurisdiction docket or other ways of requiring the court to hear cases that might not concern people given the current court? Yeah. So there are two big ones.

1:15:51And there are others, too. But these are the two that I think are the most easy to defend and will, I think, be most accessible to folks on the ground. So the first is, Lee, you know this and I teach this. The federal circuit courts have long had the authority to certify questions to the Supreme Court. I would make that mandatory. And to be very clear, not so that any panel could certify anything to the Supreme Court, but so that a majority of the active judges of any court of appeals after deciding a case could say, and we think the Supreme Court needs to resolve this question. Now, you could sort of structure that reform to avoid like justiciability problems by saying once a cert petition is filed, you take the vote of the judges and that – right?

1:16:38But every time I talk to circuit judges about docket reform, they all, no matter who appointed them, they all have their own pet issue where they're like, I really wish the Supreme Court had taken this up or we could really use guidance on this. And it's never some big political or ideological sort of pet peeve. It's actually like some technical question about bankruptcy law or about Johnson versus Jones and what you can appeal as part of qualified immunity denials. Right. I mean, you know, you know, as well as anyone, there are dozens of circuit splits out there that the Supreme Court just won't take up and won't resolve.

1:17:13And, you know, some of those cases will have an ideological violence, but many of them won't. And so the the first thing I would do is I would give back some power over the court's docket to the courts of appeals. And, you know, folks might say even the Fifth Circuit. And I was just about to say, can't wait to see what the Fifth Circuit dreams up. But the reality is the Fifth Circuit's already pretty good at getting cases on the Supreme Court's docket. Oh, yeah, for sure. This is not giving them a power they have not already seized for themselves. Correct. And so, like, is it possible lower courts will abuse it?

1:17:43Yeah. I think having it be a majority of the en banc court reduces the abuse potential. And I also suspect some norms would evolve within this process. But, you know, Leah, you remember back when folks were trying to get the federal sentencing guidelines before the Supreme Court, before Booker and FanFan. The Second Circuit tried to certify a case called Panoranda to this court and they were like, yeah, LOL. Well, there's actually, you know, a non-ideological Fifth Circuit case about old statutes of limitations for federal kidnapping offenses where the Fifth Circuit split like eight to eight. Right.

1:18:19And we're like, hey, Supreme Court, we need you to take this. So they tried to certify the Supreme Court said no. Those are the kinds of cases where I would empower circuit courts. And, you know, if that adds 15, 20 cases to the court's docket per term, oh, no. Like, you know, I think I think we'll be all right. Right. So now I want to ask you what I think. Can I one more? Sorry, I said there are two categories. I just want to throw out the second category just in case it's helpful. Also, you know, for all of the sort of court's effort to completely disengage from the death penalty. Yes. And to not take up, you know, 11th hour stay applications in capital cases.

1:18:57It seems to me that it would be a lot easier to sell that if we had required the court to do at least one pass on the merits of all capital convictions and sentences in the United States. So, you know, I think there's an interesting question, Leah, whether it makes more sense to have that be on the first appeal or whether it makes more sense to have it be on the appeal of the state post-conviction proceeding. Yeah. But one or the other. Right. So that the Supreme Court, by the time a case comes back as an 11th hour capital application, the court has some familiarity with the merits. Yeah. OK, so those are what I, I don't know, in my mind, think of as substantive, right?

1:19:37They affect the kinds of cases that the court hears. But there are also possible docket reforms that affect how the court decides these cases and what we learn about them. So I'm just going to rattle off some. I'm not going to ask you to take a position on all of these or tell me whether you think there are reasonable constitutional arguments. But I would be interested in hearing your take on what others that are in the ether that might be worth considering are. So some of the ones I've heard, one, forcing the court to tell us in advance what opinions they are releasing. So if they say we're releasing opinions on Thursday, tell us Wednesday at noon what we're going to get.

1:20:12Maybe requiring them to disclose certiorari votes, right? Who voted to hear a case? Maybe Congress weighs in more on the criteria for certiorari. that would help determine. Yes, please. Okay, so it sounds like you like that one. What are other ones that are on the table and maybe worth just considering? I mean, codifying on the cert threshold, right? I mean, so the so-called rule of four, which we teach our students that it takes four votes to grant certiorari. Spoiler alert, it's not a rule. It's not written down anywhere. If I were Congress, I would seize control of four votes for cert, of five votes for certiorari before judgment, before the court appeals is even ruled, of six votes for a summary reversal.

1:20:56I mean, I would write all that down. I would codify the criteria in rules 10 and 11 of the Supreme Court's rules for when the justices grant certiorari. Again, not because that will necessarily force the justices to follow those criteria, but at least then it's not just, you know, information they're already controlling. You know, you You mentioned the timing. I would actually think a bit about codifying the court's calendar a little more in detail than just, oh, the term starts the first Monday in October. You know, I've argued for years that the court should get rid of its April argument session.

1:21:28Congress could do that. So, you know, just lots of ways in which Congress could tweak the docket. You know, there are things Congress could do, I think, to require the court to actually consider more pro-informed popperous cases, which have fallen completely off of the cliff on the court's docket. Just so many different things that if we're going to have this conversation, we might as well have the full conversation. And just to sort of drive home one point, if we're going to talk seriously about docket reform, we should talk about how the docket has not just shrunk but how it shifted. Yes. Right?

1:21:57And which cases have disappeared. You know, not this term, but during the October 2024 term, the court didn't decide a single direct appeal from a state criminal conviction. That's insane. And so, you know, I think any sort of full, like, comprehensive study of how the court's docket has shifted will also, I think, lead us to find other places where we think the docket can and should be reformed. Yeah. Another significant shift. You know, ProPublica reported that this was the first term where the court released more kind of matters on the shadow or emergency docket, you know, that it did on the regular docket.

1:22:29Okay, so in the course of this conversation, we've already kind of answered some of the questions I was going to pose, namely what would be needed to make this reform happen? Legislation. If legislation could make this reform happen, is there a possibility the Supreme Court would yeet it or some of it into the sun? Yes. So, Steve, I will leave you with one final question, which is, let's imagine Congress tomorrow adopts all of your desired reforms to the Supreme Court's docket. Why wouldn't that set of reforms be sufficient, even if it is necessary? It's a great question. Let me tell you, it doesn't take 10 minutes to answer it.

1:23:10So you know well that I think that the principal problem with the current court, as I said at the top, is that it's just not accountable. Docket reform is a step in the right direction, but it's just one of the levers that Congress pulled over the first 200 years of the court's existence. And so do I think Congress reclaiming control over the document will have positive effects? Absolutely. But it won't change that the justices can still take whatever cases they want, right, beyond the ones they have to take. It won't change anything about the justices' behavior off the bench. And it won't do anything to basically reassert the idea that the justices need to look over their shoulder when they decide cases.

1:23:52So, Leah, if Congress were to go down any of these more controversial paths in docket reform, requiring opinions or requiring publication of vote counts, what's to stop the court from striking that down, right? Formally, the answer is nothing. Practically and historically, the answer was that the court can win individual battles with Congress, but it cannot win a war with Congress. And, you know, it's the specter of after the court strikes down statute one, Congress comes back in statute two and goes even harder. Like, that's how you get the court in line. And so docket reform isn't, you know, a decisive battle in a war between Congress and the court.

1:24:34you need Congress to also be in a position where the court is worried about what happens if it starts striking down these reforms and, frankly, any of the substantive reforms that are almost certainly going to be part and parcel of any serious conversation in Washington in which docket reform is even a piece. Awesome. Well, Steve, thank you so much. If people want to learn more about docket reform and want to hear more from you, where should they go? So, sadly, I write about this more than any rational person should in my newsletter, One First, which is at stevevladek.com. I also have an article in the BU Law Review from last year called Fixing the Supreme Court Through Its Docket.

1:25:10And this is going to feature fairly significantly in my upcoming book, The Court We Need. Still searching for a subtitle, but the current subtitle of which is What's Really Wrong with the Supreme Court and How to Fix It. Amazing. Thank you again, Steve, for joining. Thanks for having me. Thanks again to Steve Vladek for joining me and us to kick off hot SCOTUS reform September. Obviously, Scotus Reform, Scotus Reform September, one of my favorite things. And I have some additional ones. Number one, it's pumpkin spice season again. We are so back, bitches. I love pumpkin spice, but I'm not ready.

1:25:45It's the only consolation for the end of summer. And it turns out that adding pumpkin spice together with a new horchata flavoring with Starbucks and my usual caramel is epically delicious. Have you had to guess how many grams of sugar are in an horchata? The limit does not exist. And that's why it's amazing. It does sound delicious. That's why I'm able to do this episode, notwithstanding my poor sick puppy. Another favorite thing. Taylor Swift's icon session at the Grammys. Beautiful. So she brought the piano from the Ares tour and performed a mashup that is absolutely beautiful. You have to listen to it.

1:26:33Also, home state of Minnesota, its state fair is beginning. And seeing the anti-ice entries in the Minnesota state fair, specifically the arts and crafts competition where they make like anti-ice posters out of crops and seeds. Love it. Absolutely loved it. And that is the most beautiful Minnesota. That is like literally Minnesota, a distillation of the ethos of Minnesota in just the best possible way. I love it. Exactly. They know how to do organization and resistance. Also loved, though didn't love the occasion for it, Justice Jackson's dissent in the election executive order case. And as teased up top, I would welcome any advice.

1:27:16How do you solve a persistent cough in a poor pupper? x-rays all clear right it's not pneumonia nothing in her lungs heart seems fine she's been on antibiotics had her trachea checked right that looks fine she's taken a course of steroids and the poor thing is still coughing maybe it's the beginning of the semester and you're gone too much and this is well but i had to stay home with her a bunch this week because she's so sick and she can't go anywhere yeah poor pup all right well yes listeners please share any home remedies for doggy cough. Okay, on to my favorite things. I really enjoyed the novel Paradiso 17 by Hannah Lilith Asadi.

1:27:57I have a few books on my shelf that I've just gotten, either galleys or newly published copies of, and I've really enjoyed starting them. That's Sky Perryman's Ordinary People, Extraordinary Times, Rachel Sheldon's The Political Supreme Court, and Naomi Klein and Astra Taylor's End Times Fascism. I'll pick those up wherever you can. I also met Mikey Friedman and learned about this effort called Page Break, which is written up in the Times, but I sort of saw it and didn't fully appreciate. It's this amazing sort of series of weekend retreats where 15 strangers get together and read an entire novel aloud at like a Hudson Valley retreat over the course of a weekend.

1:28:36And it turns out like reading books aloud with strangers is incredibly fun and like generative. Anyway, it sounded actually quite amazing. We don't like read aloud very much as adults. I mean like Passover Seders and like on July 4th, like I was with friends in Wisconsin and we ran around a campfire and everybody read a sentence from the Declaration of Independence with our children and that was actually really fun. So there are, you know, occasions, but it's rare. But anyway, so that I just love the idea of it. So page break is the organization. And then finally, the incredible outpouring of love and kind of remembrances of the passing of the extraordinary Dolly Parton has been both heartbreaking and so beautiful and also just such an important reminder of the way that Dolly Parton used her platform and her wealth, which is to buy millions of books for libraries and for children, to fund HIV AIDS research and advocacy, to getting her COVID vaccine on live television.

1:29:27Like the list is very long. And she was just like so fierce and fearless. And all of the writings and conversations about her have been such a powerful reminder of what it can look like to use a platform to address injustice and alleviate suffering and make the world better. And it was also a reminder of just how little there has been of that in the past two years by people with these enormous platforms. I mean actually I should say Livia Rodrigo I think is a notable exception especially recently. But I just kind of hope that this sort of post-Dali moment serves as a call to more people in positions of power and wealth to follow in her footsteps.

1:30:03So one additional note before we go. At Crooked, we believe the answer to right-wing authoritarianism is, at least in part, a big, fun, pro-democracy movement. And that's what CrookedCon is all about. So we're hosting Strict Scrutiny Live in Washington, D.C. on November 6th. That's one day before the all-day CrookedCon event. CrookedCon takes place just after the midterm. So there's going to be a lot to discuss, like wondering aloud why the universe has cursed us with both Samuel Alito and Clarence Thomas at the same time. You can join us for all the jurist nonsense you can handle. Tickets for Strict Scrutiny Live and All Day Crooked Con are available at crookedcon.com.

1:30:45Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt DeGroat, Ben Hethcote, Johanna Case, Kenny Moffat, Adam Lippert, and Eric Schutt. Our production staff is proudly unionized with the Writers Guild of America East.

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