The Agonies of Brett Kavanaugh

25:33But my quick glance suggests this is a very disturbing read that suggests pretty serious misconduct on the part of a number of lawyers at DOJ, on the Virginia Board of Regents, at the Virginia Attorney General's Office, and at the law firm ostensibly representing UVA slash the Board of Regents. Yeah, so just some samples. And Ryan released this letter in response to an account that was put forward by the, like, head rector. and I think the attorney general, but just some samples from Ryan's letter. So UVA was apparently limited by the Virginia attorney general's office and who UVA could retain as outside counsel.

26:09And the AG approved only conservative lawyers, one of whom worked on Project 2025. There are also allegations in the letter that raise, in my view, serious questions about whether the outside counsel was working in concert with the Virginia AG office rather than representing UVA. The current rector and vice rector of the UVA board allegedly were negotiating with DOJ and wouldn't let Ryan be involved in those negotiations. They didn't inform the rest of the board about DOJ's demands for Ryan to resign or inform them of Ryan's resignation until after the fact. And it recounts these DOJ threats that DOJ would rain hell on UVA and bleed UVA white.

26:50And again, like it's just mob style governance that some people were affirmatively enabling. And yeah. It just makes you wonder what is going on under the surface in so many of the administration's moves that we have yet to learn the full story of. So let's move on to argument recaps. The court has just finished two weeks of arguments, and we have only had the chance to recap the big tariffs arguments. So we're going to break down the others and warning that because there are so many, we're going to have to be pretty quick in our discussion of some of that. Before we get there, though, we actually did want to flag something.

27:24I guess we're maybe engaging in our own kind of conspiracy theory here, Leah, but I think there might be something to this. Tin hats were right. Tin hats were right. Exactly. So after we recorded our last episode, President Trump, who had been curiously actually kind of quiet about the tariff arguments after they happened, finally broke his silence. So he took to Truth Social on Sunday night, so a week ago, Sunday, with honestly what really felt like a somewhat unhinged half of a conversation about how he is losing the tariff case. So to wit, I'm going to read his half of the conversation, but it was the only bit we got.

27:58So, quote, so let's get this straight. The president of the United States is allowed and fully approved by Congress to stop all trade with a foreign country, but is not allowed to put a simple tariff on a foreign country, even for purposes of, all caps, national security. And then the one-sided conversation goes on. This was like an oddly specific recounting of a specific legal argument. Sure was. That really raised red flags to me. And then this episode continued because on Monday night, he seemed to cast doubt on John Sauer's performance maybe during the tariff argument. So Trump said, quote, the U.S.

28:30Supreme Court was given the wrong numbers. The unwind in the event of a negative decision would be including investments in excess of $3 trillion. It would not be possible to ever make up for that kind of a drubbing. OK, so then on Tuesday, Trump floated the possibility of cutting Americans$2 ,000 checks evidently from all the revenue from the non-revenue raising tariffs. So, yeah. Anyway, it is certainly possible that all of these are just reflections of a president who is panicking after receiving reports of a rough oral argument for the administration over his signature policy initiative. And he's trying in his, I think, quite ineffectual way to work the refs as they decide what to do about these tariffs.

29:16But I do think it is curious that it was not until the weekend that this temper tantrum started. And I think it's especially curious because the arguments are Wednesday. The justices would have voted at conference on Friday. And so this timing does seem to at least tee up the possibility that word has gotten back to him and got back to him over the weekend about the vote at the Friday conference having gone against him. I want to see Jenny's text. My other answer is Martha Ann with a fax machine. These are two possibilities we just cannot rule out. If Jodi Kantor and Josh Gerstein are not on this story, they should be.

29:57I totally agree. Okay, so on to the argument recaps. We haven't yet had a chance to discuss. We will start with the week one cases. That is the cases heard during the first week of the November sitting we haven't yet discussed. And we'll spend most of our week one time on Hensley versus Flora Corporation because, ladies, gentlemen, and non-binary listeners, it happened. In the first week of the sitting, some Supreme Court justices finally got really worked up about some of the injustices of this world. What grave injustice do the Republican appointees, or at least some of them, seem motivated by?

30:29Lawsuits against military contractors. One of the outrages that's happening at the moment. So right. So Hensley v. Floor Corp., which is the case that inspired this fit of empathy, at least among some justices, is a case about whether you can sue military contractors who violate the terms of their military contracts. So the contract here concerned Floor Corporation's responsibilities at Bagram Air Base in Afghanistan. The plaintiff in the case, Hensley, was injured when one of Floor's subcontractors detonated a suicide bomb. Someone, and we will name names, don't worry, got very worked up at the oral argument over the possibility that military contractors like Floor Corporation might face liability.

31:10That person, Brett Kavanaugh, the man who thought roving ice patrols and ice stops are no big deal. He could not keep his feelings in check during this argument. He was seriously out of control. So we're going to play a quick montage of some of his interventions during this argument. Correct. Military contractors. Well, can you just answer my question? Is there any difference? There is no conflict. Footnote 11 of Garamendi says, I don't think that's quite what I wrote, but even if you didn't, even if you had something else, it's Bagram. It's a beleaguered. Come on. It's yeah, it's a military base in a war zone.

31:49I'll stop there, but I don't want to get that comment. He just had to get that comment out. He couldn't stop himself. I mean, I hope that this gives you some sense of what a crazy argument this was. So just to take stock of who he interrupted, the petitioner's lawyer four times over three pages, and that's not all. He interrupted Justice Sotomayor, Justices Sotomayor and Barrett, Justice Alito twice, so equal opportunity interrupter occasionally. He interrupted the respondent's lawyer, that's the lawyer for the military contractor, who he thought wasn't arguing hard enough. He interrupted the federal government's lawyer, who same, he just didn't think was vigorously enough defending military contractors the way they deserve.

32:31This is just another occasion to remind people that there are real questions about whether men are just too emotional to be Supreme Court justices because this guy was having an actual melty over the prospect that you could sue a military contractor. But please tell me more about how women ruin the workplace. The thing that was honestly the craziest about this argument was that it led to a moment that honestly felt like a signal of the end times having arrived at the court, which is something we thought would never happen, which you can hear here, and then we will discuss. You should fight back on the pardon.

33:08Let me ask you, if I might just finish. Thank you. You're going to have your shot, my friend. Just to translate this, Brett Kavanaugh's behavior was so bad, Neil Gorsuch had to tell him that he was being too rude and taking up too much space. If this ever happens to you, it is a sign you need to do some deep reflection about how you got to this point and that you need to take an emotional lap. I mean, it was insane, but also whatever it is that has gotten him so worked up, like, I think we want and need more of in our lives. So just live our lives in a way that will lead to Brett Kavanaugh having more meltdowns like that.

33:50Like, I think we're doing something right. Preferably in like November, 2026. I'd like another meltdown around the year. It's a good time of year. Yeah. Yeah. Same time this next year. Sounds good. So the clip that we just played with Gorsuch and Kavanaugh, I think suggests that we may now have, in addition to Kavanaugh stops, right, which are the suspicionless racial profiling driven stops that Brett Kavanaugh seems to think are totally fine, totally cool, totally constitutional. We also may have Kavanaugh stop as a double entendre. So not just to refer to ISIS stops and uses of excessive force, but also Kavanaugh, comma, stop when he needs to just take a moment and find his end place.

34:32Yeah. I have to say the fact that Kavanaugh was so out of control confirms something I feel like we have talked about before, which is the guy is a total wingnut when it comes to executive power. Like he loves presidential power and the military. He's so thirsty for authoritarianism. During this argument, he went on tangents about how war making and war fighting and combat zones are so within the exclusive power of the federal government. The states can't do anything about it, which was a little terrifying to hear when you realize that the president is invoking the same concepts and language of war and combat as a basis for militarizing American cities and deploying the National Guard and roving ICE patrols.

35:11It's also just like, dude, that's a shared power. Congress has an enormous – like what are you talking about? Yes, like there is this move or trope, it's commander in chief power and like everything else falls away. But like especially since we are tiptoeing to the edge of like an actual war with Venezuela, like declarations of war, that's Congress, right? And lots of other things to do with regulating the military and all kinds of other things. Those are within Congress's purview. Like this idea that everything that you could sort of say war around is exclusively within the president's authority is just insane.

35:46And yet that very much sounds like where Brett Kavanaugh is. So along those lines, as we said in the episode where we previewed this case, one of the questions here in Hensley is whether the Constitution prevents states from holding federal contractors liable for violating state law. This could have huge implications for whether states can hold accountable ICE officers, CBP officers, HSI officers. Basically, all of these DHS subcomponents are having their personnel terrorize the population. And the ability of states to actually hold those individuals accountable under state law is a very real and present question that certainly Brett Kavanaugh was sending very ominous signals about.

36:24So one other moment from Hensley was just surreal because it involved our friend Sam Alito, and so we had to include it here. What I took from your brief is you're saying Boyle's inconsistent with textualism. Who wrote Boyle? Justice Scalia wrote it. I mean, so you're saying the founding father of textualism doesn't understand textualism. No, that's not what I'm saying at all. No, that's what I, that's what I thought. Well, do you have... Wow. I mean, like, how dare you accuse a great man, Antonin Scalia, who's basically Nietzsche's ubermensch of any kind of legal flaws or inconsistencies? Also just like Fulton County, Smith.

37:05I mean like Alito in other contexts is perfectly happy to throw Scalia opinions way under the bus. I think he just like forgot for a minute that actually he is way to the right of Scalia on a whole bunch of shit. I was like we could never criticize him. But I felt like he had a weird, I don't know, like momentary lapse and he just started repeating Scalia, textualism, founding father. And that was my read on that. Yeah. Very strange moment. Not great evidence that the right-wing MAGA legal movement isn't a cult was another read on that. Yeah. Okay. So as I think the excerpts we just played make clear, Kavanaugh, Alito, very sympathetic to the contractor, although I wasn't exactly sure how they would like to ultimately write the opinion.

37:51So they could extend this common law rule under this Boyle case. That's the Scalia case. We talked about it a bit when we previewed this case. They extend that. as a matter of federal common law or find some sort of constitutionally grounded war powers preemption that Kavanaugh was kind of gesturing towards the Democratic appointees. And Gorsuch having an oddly normal one seemed pretty clearly on the path to voting against broad immunity. And I just actually wasn't sure where the others were. So I don't know how to call this one. Yeah, me either.

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40:59Briefly, three other cases from week one. One is RICO v. United States, a case about whether the so-called fugitive tolling doctrine applies to supervised release cases, even though it is not in the statute, pitting some justices' punitive instincts against their textualist ones. And the facts, recall, involve an individual who improperly left the jurisdiction during a period that she was on supervised release. The government argues that this departure, this like absconding, told, here meaning something like extended, the period of her supervised release. But here the contrast between the federal parole statute, which does explicitly provide for tolling and the supervised release statute, a different federal statute that doesn't have any provision for tolling, seemed pretty persuasive to the court.

41:43And so was what Rico's attorney, Adam Unikowski, described as this very counterintuitive dimension to the government's argument, which is that they kind of maintained that she wasn't serving her sentence at all during the period of her abscondment, but also that she violated the conditions of her supervised release during that period. And it is kind of hard to have it both ways. Unikowski, I thought, in general, was super effective. And in the end, there actually isn't a ton at stake because it turns out really whether or not there is tolling only actually impacts the sentence range for several new crimes for which Rico was subsequently charged.

42:15Court also heard Coney Island auto parts, which was part of the civil procedure heavy November sitting. And the argument was super short, a breezy 40-ish minute, which never happens. The case involves a question about Federal Rule of Civil Procedure 60, which governs relief from a judgment. So the case arose out of a bankruptcy in which creditors filed suit against a number of entities with unpaid invoices, including Coney Island auto parts, with the bankruptcy court eventually issuing a default judgment against Coney Island after they failed to respond. So years later, Coney Island says they found out about this judgment when they had a hold placed on their bank account and they moved under Rule 60 to vacate, claiming that they had never been served.

42:56And so this default judgment should never have been entered. So it had been seven years at this point. And the question in the case is whether really that's just too long under the reasonable time standard that some courts, including the Sixth Circuit here, have said applies to motions to vacate void judgments. So it's kind of a fun, a civil procedure case, because Lisa Blatt was arguing there was, of course, at least one entertaining moment. And we will play that one for you here. But since, you know, the coming of Justice Scalia in 1986, the court has taken just a a different approach to statutory interpretation.

43:27And we cite an example of, I think it's U.S. v. Brogan, where all the courts of appeals had ruled 1001 gives you a right to lie, and this court just said, you know, we're going to overrule that. And I think just last term you ruled against a case I argued when all the courts had gone our way. Well, speaking of last term and lost causes, what do you say about Hewitt and the idea Yeah, that judgment that is void ab initio never existed. You know, we can't see it. It doesn't exist. It doesn't exist. And if it's conceitedly, you know, on its face, it's issued by the court of clowns. You have to give effect to the judgment based on race judicata.

44:14I just love how she speaks to them like they're normal people. Like, it's the best part of it. Like, you're no big deal. You're just some guy I'm chatting with. And somehow they allow it. It's a fascinating dynamic. Sometimes. That's true. Last term, I guess there were a couple of courses that decided he had too much. But this one, they were totally entertained. Yeah. Okay. Onward to another civil procedure case, Haynes Celestial Group. This one involves complete diversity for purposes of federal jurisdiction, remand, and fraudulent joinder. Oh, my. So the plaintiffs in the case are Texas parents who alleged that their son's autism had been caused by heavy metals and baby food.

44:52They sued baby food manufacturers, Hayne Celestial, a Delaware company, along with Sellers Whole Foods, which is Texas-based in state court. Hayne removed the case to federal court, convincing the district court to remove Whole Foods, which created complete diversity for purposes of federal jurisdiction, i.e. all the plaintiffs, all the defendants from different states. And the case then proceeded to a trial that resulted in a ruling against the parents. So the Fifth Circuit concluded that the trial court had been wronged to dismiss Whole foods from the case, meaning there actually wasn't diversity jurisdiction because both the plaintiffs and Whole Foods are Texas citizens, which meant the case should have stayed in state court where the parents should now have a chance to proceed.

45:30So that's what the Fifth Circuit found. The case is now before the court on the question of the impact of this erroneous dismissal on the plaintiffs' chances to proceed. And this case actually is a rare opportunity for the court to affirm the Fifth Circuit and also side with some plaintiffs, right, who say they have been harmed, which does seem like exactly what the court is going to do. So all of the justices seemed kind of skeptical of a ruling that would prevent these plaintiffs from having their day in state court as a result of this incorrect removal of a defendant from the case. And the justices on both sides of the court seemed to be like humming the same tune, which is basically about how the plaintiff is a master of their complaint, which if you took Civ Pro as a 1L should be a familiar phrase.

46:10Like Coney Island Auto Parts, this was a strikingly short argument. There were very few questions for the plaintiff's lawyers, The whole thing took less than 45 minutes, which was honestly refreshing in an age where there is just such inflation happening among other places in SCOTUS argument lengths. There was a hot mic moment in this case. I missed it. I'm so glad you caught it. But one that's way more innocent than the last hot mic moment we captured and covered. So listeners might recall that in the October sitting, this was the last hot mic moment. Clarence Thomas was caught on a microphone saying at the end of the Voting Rights Act argument, where the Republican appointees made clear they're going to nullify somehow, someway, what remains of the Voting Rights Act and blow up the legal protections for minority voters' political opportunities and political power.

46:57At the end of that argument, Justice Thomas said, see, that wasn't so bad, and got a good chortle, you know, over the whole ending the Voting Rights act thing before being hushed. Well, at the end of this argument in Haynes' Celestial, the following moment was captured in audio that isn't on the Supreme Court's website, but we were listening real time and our excellent producers caught it. Civil procedure is my new favorite field.

47:29so i think i think that was the marshall talking and it just felt so innocent like yes i too would prefer listening to civil procedure than all of these culture war right-wing grievance fasts the court does which take hours it feels like a normal court and you can still go have lunch at a reasonable Exactly. I mean, win-win. Yeah. I think I'm – it me. Yeah. Okay. So now on to the week two cases. First up is Lander versus Louisiana Department of Corrections. And this is a case about the availability of damages under a statute called Orlupa, the Religious Land Use and Institutionalized Persons Act.

48:08And we'll tell you more about the case. But let me just say up top that listening to the argument, I got that bad feeling, like the kind of cold chills that like spread over your skin, that they're going to do real, real damage that could reverberate way beyond our lupa. Totally agree. It seems like they are basically coming for all federal spending programs here. And I honestly thought they wouldn't because the facts of this case are so egregious. I assumed that they would not want to own ruling against this plaintiff, but I think I had too much faith in them. But this is partially why they love Trump.

48:43Trump drowns out everything they are doing. And none of the cases that aren't related to Trump just like get major coverage. Yeah. We are going to do our part to make sure this one does. So here are the facts. So Lander, a devout Rastafarian, had grown his hair for nearly 20 years without cutting it. Religious exercise, like no question. No one disputes that. He's convicted of simple drug possession. He's sentenced to five months in state prison. he starts serving his sentence and he presents prison officials with a copy of a Fifth Circuit opinion. He shows up, he is so worried that he reports to begin serving his sentence with a printed copy of a Fifth Circuit opinion, holding that Louisiana state's policy of cutting Rastafarian inmates' hair violates Arlupa, which is a 2000 statute, passed to protect the religious rights of prisoners, among other things.

49:33And the officials to whom he gives this printed copy of the Fifth Circuit opinion, initially do respect it and allow him to keep his hair. Okay, so then he is transferred with a month left on his five-month sentence to a different facility, the Raymond Laborde Correctional Center. And he, again, he has his printed copy of this opinion with him. He shows it to the correctional officials. They literally throw the opinion into the garbage, bring him into another room, handcuff him to a table, hold him down, and forcibly shave his head. Truly diabolical conduct. So he files suit against the warden and the guards seeking monetary damages, money damages under that 2000 Arlupa statute.

50:12And the question here is whether that law permits individuals to sue for damages. So the Supreme Court has already said that a related statute, RFRA, the Religious Freedom Restoration Act, does allow individuals to sue for damages. And RFRA, like Arlupa, was passed in response to the Supreme Court in Congress's view under protecting religious liberty. Actually, in that previous Scalia opinion Kate was referring to, Employment Division v. Smith. And Arlupa has language that does seem pretty clearly to allow private individuals to sue to enforce it. It explicitly authorizes suit, allows for a, quote, claim or defense in a judicial proceeding to obtain appropriate relief against any official or any person acting under color of state law, end quote.

50:57Seems, I don't know, pretty clear. And if you can sue, traditional thing you can get is damages. Okay, so just to take stock here, we have a case holding that private damages are available under a very closely related statute. Sometimes people refer to RFRA and Arlupa as these twins. You have in Arlupa very clear statutory language that Leah just read saying that you can obtain appropriate relief against any official in a judicial proceeding. There was a just pretty wild array of amicus support for Lander. So everyone from the Beckett Fund to the Constitutional Accountability Center, which don't agree on a whole lot, Senator Ted Cruz, a group of civil rights organizations represented by Americans United for Separation of Church and State.

51:39I mean, really a very, very long list of people with very diverse ideological commitments on the side of Lander. You had one amicus brief on the side of Louisiana by some sheriffs. The Trump Justice Department is even on Lander's side. Like that is how lopsided this case is. And yet these Republican appointees. Supreme Court going to be to the right more extreme than the Trump Justice Department. Than the Trump administration on a lot of these cases. Like it cannot be emphasized enough. So yeah, I think it's pretty clear that these Republican appointees are looking for a way to rule against Lander to hold that because our lupa is spending clause legislation passed by Congress under its power to spend.

52:17there needs to be not just the kind of clarity that is in the text that Leah read, but something even clearer, like a super duper clear statement that you can sue for damages. And the language in the statute isn't clear enough. So here is Kavanaugh essentially making that point. But the hard part, as I see it for your case, for me, is that you need a clear statement and appropriate relief. You know, it's not as clear as it could be in encompassing damages. So how do you deal with that? I don't want to water down our precedent on that. But at the same time, I want to hear your response to how you how you get there.

52:58I feel like we should understand this case as like cross pressure, you know, on the justices, kind of like we were talking about with RICO, punitiveness versus textualism. We talked about in the tariffs, like billionaire BFFs safeguarding the Republican Party from itself. On the other hand, like expanding presidential power and giving Donald Trump what he wants here. On one hand, you have religious liberty. On the other hand, you have the opportunity to gut the modern social welfare state, much of which is accomplished via spending clause legislation. and it seems like that impulse is going to win out.

53:32And it may not be irrelevant that this is not like mainline Christianity. Yes, for sure. If he's being deprived of a different kind of religious liberty, has a different caste, I wonder if they would be so cavalier about it. Yeah. Seems like probably not. The other big line of argument in the case, in addition to this, the super clear language is lacking here, was that because figures like guards and wardens are not themselves taking federal money and agreeing to conditions, like a condition that they have to respect the religious liberty of inmates. It is only states as opposed to officials that are bound by this sort of condition that Chief Justice seemed to be all in on this.

54:07And any sort of ruling along any of those lines might not just mean you can't sue under Arlupa. So its protections of the religious liberty of inmates would be functionally unenforceable. It would also mean that tons of other legislation passed under Congress's spending power also couldn't be meaningfully enforced. And this is especially galling because the Supreme Court in an earlier decision, Tlefsky, just turned away several years ago a broad attack on the ability to sue to enforce spending clause legislation. Here's Justice Jackson sort of silently screaming on this point and tag teaming with Justice Kagan.

54:45Didn't we answer that question in Tlefsky? I thought we said in the 1983 context that it didn't matter that it was spending clause legislation. We said a law is a law. We said secured by the laws of the United States include secured by laws enacted pursuant to the spending clause. And remember, they did, I think, like a narrower sneak attack on enforcing federal spending programs in the Planned Parenthood versus Medina case. that was the case about whether you can sue to challenge a state's decision to disqualify Planned Parenthood from the Medicaid program in violation of federal law. Now they seem like they are going to broaden that Medina ruling even further and suggest that spending clause legislation is even more law-ish, like not like a real law than they suggested in Medina.

55:34It's more like a cool law that just isn't enforceable. And this is, I think, like in this moment, you know, a terrifying posture because of the prevalence of federal spending programs as part of federal welfare programs and because of the president's current posture vis-a-vis federal spending legislation. He has basically claimed that he can decline to spend funds in violation of federal law. Under the Constitution, of course, it is Congress that has a spending power. But if the Supreme Court isn't going to treat spending clause statutes as real laws, like laws of the kind that people are actually bound to and are enforceable.

56:10Woof. An enormous blow to social welfare programs in general. And even though it was like two beats ago, Leah, I just want to say I did catch that that was, I believe, a Mean Girls reference. So I would like my credit for it. So this is two weeks in a row, Kate. You're just crushing it. I got some culture. Those are movies. I'm not terrible on movies. Yes, that's true. That's true. Okay, so one other thing to note, Gorsuch and several other justices really heckled Landers' lawyer, Zach Tripp, about the fact that he was asking for a ruling that would go against the consensus among the federal courts of appeal.

56:41So let's play that clip here. As I understand it, the circuits are unanimously against you and have been for many, many, many years. So saying that something awful is going to happen, whatever's happened has happened, right? I mean, this was so enraging. The court has been absolutely delighted to upset Court of Appeals consensuses in other cases. So Shin versus Ramirez in 2022, D.C. versus Heller back in 2008. And they had, you know, I think Justice Gorsuch and Alito, I think it was, had this same faux modesty earlier in the term in the Bowie case, suggesting like, oh, you're advocating for a position that all of the court of appeals rejected.

57:23We couldn't possibly rule in that way. They don't put any stock in what the courts of appeals say. They don't even pretend to if you actually ask them what they think. And yet they just cannot resist the temptation to just layer that on. So, you know, I thought this case was going to be a clear win. I thought Zach Tripp did a great job. But man, did it look bleak. Yeah.

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1:00:18All right, onward. Next case we wanted to talk about, GeoGroup versus Menocal. This, like the FloorCorp case, is a contractor immunity dispute with potentially significant implications. Although on its face, it's about this kind of narrow procedural question involving the availability of immediate appeals. So the case involves claims by ICE detainees against a government contractor who operates an ICE detention facility and who the plaintiffs in the case allege entered into a contract with the federal government to provide detention services, then forced detainees to perform much of the labor actually involved in running a detention center on a contract with the government, like cooking, like janitorial work.

1:00:56And this is work that detainees were sent to solitary confinement or denied food if they refused to perform. And this case actually came to be in part because a man died in custody performing this work while being paid a dollar an hour for it. So Cesar Gonzalez Baez died in ICE custody from being electrocuted doing work for the L.A. Sheriff Department because, you know, this contractor also kind of contracted out some of the labor as well. So Gio raised what is known as a yearsly defense, essentially that ICE directed them to compel their detainees to perform this labor and that they were thus immune from suit.

1:01:36And they lost that argument in the district court. So the question in this case is whether the contractor gets an immediate appeal from that order. And this, unlike Hensley, actually seemed easier to call. I mean, I hope I don't prove to be unduly optimistic. But I did feel pretty good about actually the outcome, the likely outcome in this case, in part because of the flawless performance of Gupta Wessler's Jennifer Bennett, whose praises we have had occasion to sing before. She was amazing. And I think also possibly also in part because although it's not probably going to be enough to carry the day in Lander, but in this case because the federal government is actually on the side of the plaintiffs, that is the detainees, rather than the ICE contractor.

1:02:17After the contractor's arguments about protecting the federal government ring a little hollow, then the federal government is making the opposite set of arguments. I just wanted to say one more beat on how amazing Jennifer Bennett is. She and the team at Gupta-Wessler, they're so good at selecting these winnable cases and being able to identify and channel and engage with and speak to the views of others who are probably not inclined to agree with them. Like, again, as you were saying, like, even the Trump administration isn't on the side of the contractor. The contractor is just stretching precedent, making silly policy arguments.

1:02:51And I think I really only heard Sam Alito ask a question that was friendly to the contractor. All right. So you're with me. Like, this one is one we can feel pretty good about. OK, great. One more case, and this is on a topic that is near and dear to Leah's heart, Fernandez versus United States. And that is, of course, a sentencing case and an important federal sentencing case concerning the First Step Act's amendments to so-called motions for compassionate release. So prior to the First Step Act, the Bureau of Prisons could file a motion in federal court where, quote, extraordinary and compelling reasons warrant a reduction in the term of imprisonment and where a reduction is consistent with the guidance from the U.S.

1:03:27Sentencing Commission. The First Step Act, or FSA, amended the law to allow persons who are detained, not just the Bureau of Prisons, to also file these motions. And the question in this case is what constitutes extraordinary and compelling reasons. And the question specifically asks whether extraordinary and compelling reasons can include reasons that would also provide a basis for vacating someone's sentence under the more general standard federal post-conviction remedy in Section 2255. But it's not entirely even clear that this case cleanly presents that question because the petitioner in this case argues that one of the extraordinary and compelling reasons warranting a sentence reduction is that he is actually innocent of the offense he was convicted of.

1:04:08And I know this will be shocking, but it is true. It is not clear whether establishing your actual innocence is grounds for federal post-conviction relief under Section 2255. This was such a frustrating argument to listen to for several reasons. One is that the justices are just so obsessed with the prospect of possibly opening the floodgates for compassionate release motions. They are so fixated on looking for ways to limit them, even when those limits ignore the structure, function, and context of the relevant statute. I am working on a law review article about this. It just like drives me nuts.

1:04:47But just to like explain the precise issue here. So Congress amended this statute, as you were saying, because Congress thought the Bureau of Prisons was not making sufficient use of these sentence reduction motions. They weren't filing motions when there were extraordinary and compelling reasons. But now some justices like Sam Alito are all in a tizzy about how before the law was amended, the Bureau of Prisons never sought sentence reductions in cases of trial errors or changes in the law. But that just can't be dispositive of whether those kinds of claims can constitute extraordinary and compelling reasons since Congress amended the law because it thought the Bureau of Prisons wasn't bringing enough sentence reduction motions in cases of actual extraordinary and compelling reasons.

1:05:26Like, it's just obvious. Yeah. That seems like basically unanswerable, and yet, not sure the justices were seeing it that way. Brett Kavanaugh also wants to read the law to require the Sentencing Commission to affirmatively authorize a particular ground or basis for seeking a sentence reduction. That, too, doesn't really make sense under the statute. One advocate tried to suggest that relying on the sentencing commission for affirmative authorization in defining what constitutes extraordinary and compelling reasons would raise questions under Loper Bright, the decision overruling Chevron, and announcing that courts, not agencies, define legal terms in a statute.

1:06:01To which Brett Kavanaugh kind of waved his hands and said, ah, seems like lots of policymaking discretion here, so looks good to me. One, one, one singular bright spot in this argument was Justice Jackson, who, as is often the case in these federal sentencing matters, was just extraordinary, pointing out the many ways in which the federal post-conviction remedy is just different than these motions for compassionate release, such that it just doesn't make sense to think of compassionate release motions as end runs around post-conviction motions, even if you can raise similar claims in both contexts.

1:06:32I'm reminded of when then, you know, youngish or younger Ketanji Brown Jackson was being put on the sentencing commission in the early Obama administration. And someone in the counsel's office was talking about Justice Jackson and doing an imitation of Justice Breyer talking about Justice Jackson, but he called her Ketanji. And Breyer, as people know, is extremely fond of KBJ. And the imitation went something like, Ketanji knows things. She knows things. and that was very high praise from Justice Breyer and one of the many things she knows is sentencing and it is very gratifying. She just knows it and the rest of them just don't.

1:07:13Is that one of the ways women ruin the workplace? By knowing things? By knowing things. I think that's for sure. Definitely. Conferences among the justices? Oh man, conferences have been ruined by the knowers of things. The knowers with the notes. They know things and they take and bring their notes and the fun has just been gone for a while now. Okay, so let's briefly cover some cert grants and denials. As we predicted, so did lots of other people. The court denied Kim Davis's cert petition, which remember, among other things, had asked the court to overrule Obergefell. The fact of the denial was totally expected.

1:07:47It was kind of interesting that no one wrote to say, I am still gunning to overrule Obergefell, which, you know, there have been post-Obergefell separate writings by Thomas that have sort of let it be known that they're gunning to overrule it. I just don't think they have to, right? Like you have already emboldened so many state legislatures and other officials to try to chip away at Obergefell, if not directly targeted, right? Like the Texas state system, allowing judges to decline to issue marriage licenses, you know, where they have religious objections. So anyways, but the court's denial of Kim Davis's surp petition generated such unearned good PR for the court because all of the headlines were just court turns away, request overrule, Obergefell.

1:08:33And it just made them seem and look less extreme and reactionary than they actually are. Yeah. So modest, so restrained. So demure, so mindful. One grant that is not demure or mindful, but I think they actually kind of had to take this case because the Fifth Circuit ruling was completely insane. Okay, so this is a case that the court granted certain involving Mississippi's rule for counting late arriving ballots. So this is actually a case we've mentioned before. A lot of states allow mail-in ballots to be counted if they are postmarked on or before Election Day, even if they arrive after Election Day.

1:09:10States take a bunch of different approaches to this, but more than a dozen do allow those ballots to be counted. In Mississippi, they allow ballots to be counted if they arrive within five days of the election, again, so long as they're cast and postmarked on or before Election Day. People might remember there was a lot of litigation over this question in Pennsylvania. In this case, the RNC has challenged the Mississippi law, and a divided panel of the Fifth Circuit issued a pretty unhinged opinion finding that Mississippi's scheme wasn't consistent with federal law. It's just like, wow, we've discovered after like 100 years that originalism and this statute actually means you can't count ballots after Election Day, right?

1:09:50Just at the very same time that the president, the leader of the Republican Party, has started making these claims. What a coincidence. Totally. Although the dynamics of participation and voting by mail and all that, the partisan valence of all this is somewhat in flux. And so I don't know exactly how anyone is going to be benefited or disadvantaged depending on how the court decides this case. I think that the reasoning of the Fifth Circuit was embarrassing and I hope the court rejects the case on grounds of law. Shame. Right. But in terms of practical impact, I actually don't totally know. But in any event, the thing that I think is really important in addition to disavowing the really shoddy reasoning in the Fifth Circuit opinion is the timing.

1:10:34It's so important that they not sit on this case as states are gearing up to administer the midterm elections. So they have to decide it quickly so that there is a stable rule and states can conform their election administration to that rule. One other cert denial I just wanted to mention briefly that had an interesting statement attached to it. So this case was United States versus Veneno, and the court denied cert, but there was a SCOTUS blog post that I think has just gone up by Right to Democracy's Neil Weir that basically the separate statement by Thomas and Gorsuch said that the territories clause, the Constitution gives Congress power over the territories, rightly understood, quote, does not endow the federal government with plenary power within the territories.

1:11:14That's never been said by any federal judge, and it could be a very big deal if embraced by the full court, so just wanted to mention that statement. and I mean that that's a good thing so maybe we should transition to our favorite things great okay so with Crooked Con and travel I was able to do a lot of reading so I have several recommendations Broken Country by Claire Leslie Hall was beautiful in just like unexpected ways I loved it I also read and I know I've already recommended this one to you Kate because it's kind of climate survival-ish climate apocalypse Wild Dark Shore by Charlotte McConaughey another great book I read, First Lie Wins by Ashley Elston.

1:11:53In the non-reading bucket, Robin has a new single, her first, I think in like seven years, Dopamine. It is excellent. New album coming next year. So cannot wait for that. Also, Joyce Carol Oates' social media feed, just murdering Elon Musk over and over. Great defense of the humanities, of reading, just terrific. And it called to mind, And I'm sorry, Kate, this is a TV reference, but the show your oats kind of opening conceit in the early episodes of Younger. And I just I love the confluence. I've actually seen that first season. You have? Yeah, I have. Look at you. Yes, show your oats, right?

1:12:35She gets everybody flashing for Joyce Carol Oates. Exactly. And, you know, if her takedown of Elon doesn't, you know, merit doing that again, I'm not sure what will. So, yeah, listeners, make show your oats happen again. One last favorite thing was just getting to hang out in DC, like not only with you, Melissa, Melody, Michael, and the other wonderful people who are part of Crooked, but also all of the Crooked Con attendees and listeners. I wanted to give a special shout out to Ben at Albie, who is a fan of the show and listens. And I hope that we as a team are able to make it back there and get together at Albie with you.

1:13:18Okay, so those are great recommendations. I am very excited to read Wild Dark Shore. I have not started it, but I will. I have started listening to the newest season of the serial podcast, The Preventionist, which is about a spate of removals of children from their families on very dubious grounds of alleged child abuse in Lehigh County, Pennsylvania. Totally gripping. Serial's still got it, even though they've been going for a lot of years. I saw Robin has a new single I haven't listened to yet. I didn't realize it had been that many years. I still listen to Call Your Girlfriend dancing on my own all the time, so I'm very excited for a new album.

1:13:50Florence and the Machine dropped a new album a couple weeks ago, which is great. Leah, you know this, but there was a performance at Symphony Space of the playwright Thornton Wilder's one act, The Long Christmas Dinner, that is just a great and searing, very short play that friend of the pod, true friend of the pod, not like Sam Alito, friend of the pod, Chris Hayes, was in the reading of and so was Renee, Elise Goldenberry and a bunch of other really amazing people. It's so much FOMO. It was really cool. We should have flown you in for it. But that's just like a great show that I did not know.

1:14:25Rebecca Solnitz, a year out from Trump's election, Resistance is Everywhere. Really good, uplifting read in The Guardian. She is amazing. So yeah, those are some things that gave me some hope this week. I have to just note one other thing. This isn't a favorite thing. This is like a thing I hate. But just in this last week of like the waves of misogyny last few weeks, just like being reminded of like listeners, if you haven't, you kind of need to read the New York Times story that provides more details about one of the women victimized by former representative and former attorney general nominee, Matt Gaetz, you know, human frat prattle with Botox injections.

1:15:03Like it just gives more details about her story. And it just makes clear like how our society's like tattered social safety net is part of what makes girls so vulnerable to abuse and exploitation. This is like a 17-year-old who, you know, lived in a homeless shelter and needed money for braces. Like it's just excruciating. Yeah. Like a teenager doing sex work to raise money to get braces to fix her teeth. and any reporting on this story that does not include and high up include that this is the person that Donald Trump wanted to make the Attorney General of the United States is engaging in malpractice.

1:15:41But I agree. It's a very hard but necessary read, so everybody should read it. Okay, so some housekeeping before we go. Once again, I want to thank everybody who came to Crooked Con and made it possible, attendees, speakers, sponsors. We could not have done it without you. We really did enjoy meeting listeners. It was awesome to hang out with hosts of other shows. Ben Wickler, Jessica Valenti, Andrew Golis, our friends from Americans United for Separation of Church and State. Yes, they were there. And they were there and just like so many other great, great people in the fight in various ways.

1:16:14Yeah, and getting to hang out in like the Take Lounge with the, you know, content creators. And again, like getting to hang out with like the people we, you know, work with at Crooked but remotely. I just loved like getting to talk with the listeners, you know, after the live show and taking pictures with them. that is always so fun. And yeah, it was just wonderful. It was great. And turns out there were cameras rolling. Of course there were. So if you were not there, but you are interested in listening to some of the conversations and the panels, et cetera, you can go to crookedcon.com and there will be a bunch of live from Crooked Con content there.

1:16:49I guess there's also some exclusive Crooked Con merch for sale. You can also at that same URL, crookedcon.com, sign up to get details for our next Crooked Con, which is coming to you sometime in 2026, just in time for the midterms. And Brett Kavanaugh's next melty, hopefully. Hopefully. One of his next melties. Yeah. I mean, I wouldn't mind more between now and then, but certainly one then.

1:17:21Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Thea Littman, Melissa Murray, and Kate Shaw. Melody Rowell is our senior producer and editor. Our producer is Michael Goldsmith. Jordan Thomas is our intern. Our music is by Eddie Cooper. We get production support from Katie Long and Adrienne Hill. Matt DeGroat is our head of production. And thanks to our digital team, Ben Hethcote, Joe Matoski, 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 slash at Strict Scrutiny podcast.

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