A Deregulatory Sh*t Show Waiting to Happen
01:03:32 Share

Hi, I'm Stacey Abrams, host of the brand new Crooked podcast, Assembly Required with Stacey Abrams. Each week, we'll work together to better understand one of those big issues that seems insurmountable. Whether it's the Electoral College, America's loneliness epidemic, or the future of Hollywood post-strikes, I'll challenge you to dig in and ask, how do we get here? What obstacles lie ahead? And what can we do to get good done? Are you in?

Episodes of Assembly Required with Stacey Abrams are available starting August 15th. Head to your favorite audio platform and subscribe now so you never miss an episode. Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said...

I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Kate Shaw. I'm Leah Littman. And I'm Melissa Murray. And today we are going to be previewing the cases the court will be hearing this week. We'll also note some big cases that the court will hear next week. But fair warning, we're not going to spend as much time on those. We'll come back to them as we recap the sitting.

But then after that, we're going to have this very special court culture episode for which we are very thankful. And it will feature Representative Ro Khanna, who's going to talk with us about ethics reform. But before we get to all of that, we have an update on one of our favorite recurring segments, America's Worst Court of Appeals. And I know we haven't had a lot of movement on this front since the Fifth Circuit pulled away and made clear that this title is theirs.

But it seems like we have a little healthy competition brewing. That's right. In response to the Fifth Circuit's shenanigans with the CFPB, the SEC, Mifepristone, et al., the Eighth Circuit said, hold my beer. And then it slammed down a tater tot hot mess of a dish involving Section 2 of the Voting Rights Act.

As someone from the Midwest, I am kind of offended at your reference to tater tot hot dish. I'm sorry. This culture is not your costume, Melissa. Tater tot hot dishes are good. So I object to the A-circuit being described in that way.

It's a hot mess. How about just it's a hot mess? It's a hot mess, not a hot dish mess. Fine. Fine. Okay. So a little context maybe before we go further. So most of our listeners will remember that in 2013, the court decided Shelby County versus Holder. In that case, a 5-4 majority of the court essentially invalidated a process known as preclearance under the Voting Rights Act.

Under that preclearance process, states with a history of discriminatory voting practices were required to first preclear any changes in their voting practices and laws with DOJ or alternatively with a federal court. The court threw out the preclearance formula on the view that it treated sovereign states differently, singling out only some states and subjecting them to this process. And in addition, it was no longer necessary since so many minorities were voting.

The Chief Justice, who wrote for the majority, did not note that much of the uptick in minority voting came in 2008 and 2012, when many racial minorities were particularly exercised to vote for the first black president. The Chief Justice also did not note that the increase in minority participation may have had something to do with, well, the Voting Rights Act.

Anyway, in the wake of Shelby County and a demise. Minor, minor, minor intervention. Footnote. Causation, correlation, not his strength, whatevs. So in the wake of Shelby County and the end of preclearance, there's been a spate of states implementing voting practices and laws that in many instances do seem aimed at suppressing minority voter turnout.

And to be very clear, this was all very predictable. And indeed, it had been predicted in the run-up to Shelby County. However, in his opinion for the majority, the Chief Justice insisted that dismantling preclearance was no big deal because Section 2 of the Voting Rights Act remained a viable option for dealing with discriminatory voting practices and laws. And

And then Sam Alito was like, hold my beer. Here's my hot dish mouth. And then the 8th Circuit was like, oh, no, Sam, we will want to help you. Yeah.

So the preclearance regime that was gutted in Shelby County operated to prevent discriminatory laws from ever going into effect. The problem with Section 2 is that it is an after-the-fact remedy. So ordinarily a law has to be passed or actually go into effect and then be challenged by those with the resources to mount litigation and actually challenge it. So basically using Section 2 to vindicate the values of the Voting Rights Act was always going to be a mixed bag.

And as soon as the court succeeded in dismantling preclearance, the attacks on Section 2 began in earnest. So we covered one of those attacks.

challenges Brnovich v. Democratic National Committee, a 6-3 decision from October term 2020, authored by Samuel Alito. There, the new conservative supermajority upheld Arizona election policies that allegedly made it harder for Black, Brown, and Native communities to vote. And this decision not only upheld the Arizona laws at issue, it also made it much harder to challenge any voting practices as discriminatory under Section 2.

But that is not all. In Brnovich, our most fantastico justice, Neil M. Gorsuch, decided that the Alito majority opinion just didn't go far enough. So he decided to float a novel argument.

that because Section 2 of the Voting Rights Act does not explicitly provide for private party enforcement, whether that existed at all remained an open question. This is even though the Supreme Court and the lower federal courts have decided literally hundreds of Section 2 challenges brought by private parties, and even though the legislative history of the Voting Rights Act makes clear that Congress believed that, beyond preclearance, the act's enforcement would fall to private parties, not just to the government. Neil Gorsuch decided to just put this out there.

He's, quote, just asking questions. Just asking questions. Like playing devil's advocate here, I wonder. He's not the only troll in the box here. So not to be outdone, in his dissent from the court's decision in last year's Allen v. Milligan, Justice Clarence Thomas decided to continue prosecuting the point that Neil Gorsuch made in his concurrence to Brnovich. So

Justice Thomas decided that he was going to continue to till this particular patch of right wing grievance. Justice Thomas wrote that the majority opinion, quote, does not address whether Section 2 contains a private right of action. And then he went on to suggest that the basic question of whether private individuals rather than the government can even go to court to enforce Section 2 remains an open question.

question. And with not one but two invitations to take on this issue, it's not surprising that some enterprising groups decided to find out whether private enforcement was in fact necessary to enforce the Voting Rights Act. One case was litigated in the Fifth Circuit, and even the Fifth Circuit decided that this extreme textualism was inconsistent with the Voting Rights Act like its entire being, as well as decades of precedent permitting private enforcement.

So this is where the Eighth Circuit steps in to make a bid for America's worst circuit court. The warm-up act here was U.S. District Court Judge Lee Rudofsky of the Eastern District of Arkansas. He's a 2019 Trump appointee, and he's been a member of FedSoc since 2002.

And the case that he was presiding over was called Arkansas State Conference of the NAACP versus Arkansas Board of Apportionment. And on its face, it was just a Section 2 challenge to how the Board of Apportionment drew Arkansas's voting districts. And at first, the parties did not actually raise the question of whether Section 2 claims could be brought by private parties. That issue apparently was raised by Judge Rodofsky himself.

And then the state included it in its arguments. And this is all cited by the appellants and their briefs at the Eighth Circuit. They note this sort of unusual provenance that the judge first brought this up and then the parties themselves incorporated it into their arguments. And not surprisingly, Judge Rodofsky relied on this argument that Section 2 cannot be enforced by private parties to rule for the state here. So the case was then appealed to a panel of the Eighth Circuit, which affirmed the Rodofsky judgment and its reasoning.

It really does read like Judge Strauss, who is a Trump appointee and writes the majority opinion, is auditioning for something. I can't quite put my finger on what. What could it be? Yeah, hard to say. What could it be? So the majority opinion does a very, I mean, it tries to be a very extreme textualist reading of the statute. It is bad textualism. It is bad everything. But it

It kind of crucially emphasizes that it is at least unclear whether Congress intended to authorize private parties to bring suit under Section 2. And while Strauss acknowledges the legislative history clearly shows that both chambers of Congress definitely declared explicitly that they intended Section 2 to permit private lawsuits, he

There is like this almost kind of conservative Mad Libs quality, I found, the majority opinion, where he's just sort of intoning text and history like it's a mantra and then saying these, writing these lines that could have been, you know, written in like a 1L paper about the

problems of intentionalism or purposivism. Legislative history is unreliable. And, you know, then there's sort of these asides about dicta and previous Supreme Court opinions to the extent there's any grappling with Supreme Court precedent. Most of it is that's unhelpful is dismissed as dicta. So it's just like this kind of stitched together set of arguments that could have almost appeared anywhere. But lo and behold, ends up with this no private enforcement of Section 2 outcome.

Well, he's playing fantasy SCOTUS, right? Where Clarence Thomas and Neil Gorsuch are the one true Supreme Court. Yeah. And that's, and he stitches together their views of how to do legal interpretation and then just

sends this out into the world. Happy Thanksgiving. Well, he doesn't stop there, though, Kate. So Judge Strauss also waves away some of the practicalities that the enacting Congress would have understood. Specifically, the enacting Congress understood that partisanship would play a really big role in how the Voting Rights Act was enforced. And so under Democratic administrations, there likely would be more enforcements and maybe less under Republican administrations. But

even when the Democrats were in control, the Department of Justice would not have the resources and the manpower to chase down every discriminatory voting policy that the states would try to put out. And so this is part of why preclearance existed. It was to focus resources on the period before the laws went into effect and limit the need for resource-consumptive litigation. But litigation was supposed to be a backstop for what preclearance didn't catch. And it was understood that it would work

So it just doesn't practical matter. The sort of partisan alignment around voting rights entailed the necessity of having private parties enforce parts of the statutes.

Also, can I just say like the legal test for whether you have that is private citizens have a private right of action is partially or at least has been articulated in some cases as whether a statute creates rights in particular individuals.

This law is literally called the Voting Rights Act. You don't. It's not the voting rights in the beneficence of Democratic administration's law. Like this is the ultimate like new necessary to enforce the Voting Rights Act joke, like no private enforcement is necessary to enforce the Voting Rights Act.

And the interpretation, as you were suggesting, would just be disastrous. You know, if private parties couldn't bring suits to enforce Section 2, you know, in addition to knowing like Republican administrations aren't going to enforce the law, Democratic administrations don't have the time and resources to investigate and litigate all possible violations of the law. That's why most of the Supreme Court cases involving the Voting Rights Act and lower court wins on this have failed.

Private plaintiffs, as Chief Judge Smith noted in his dissent, over the past 40 years, there have been at least 182 successful Section 2 cases. Of those 182 cases, only 15 were brought by the United States.

So this is a two to one decision. And there's a vehement dissent from Chief Judge Levinsky Smith, a George W. Bush appointee and the Eighth Circuit's only active black judge. And Judge Smith emphasized the decades of precedent that the majority literally blew up. And the judge writes, admittedly, the Supreme Court has never directly addressed the existence of a private right of action under Section 2.

However, it has repeatedly considered such cases and held that private rights of action exist under other sections of the VRA and concluded in other VRA cases that a private right of action exists. So...

TLDR, Judge Smith seems to be saying here, my colleagues are absolutely making shit up. And so with the Fifth Circuit concluding that Section 2 does permit private enforcement and the Eighth Circuit concluding that it does not, we have a circuit split, which means that this will certainly be reviewed by our favorite 63 conservative supermajority of a court. So

It's been great knowing you, Voting Rights Act, Section 2. Yeah, I mean, let's drill down a little bit and count the votes. Gorsuch and Thomas clearly in the bag for the Eighth Circuit's position. They seeded it. The chief never saw a voting rights claim. He didn't want a nail to the wall. He is likely a third. Justice Alito, I am quite sure, is salivating at the prospect of kneecapping this landmark statute further or, you know, once and for all, which leaves all hopes for the Voting Rights Act and the prospect of a multiracial democracy in the capable hands of Brett and Amy.

And Congress, obviously. It's like the world's worst acapella duo, Brittany. But either one works. But Congress, obviously, if they could get it together, could enact legislation making all of this clear, just as they could have post Shelby County attempted to cure what the court identified as wrong with the preclearance formula. Didn't do anything then, aren't going to do anything now. But Congress could move this whole mishigas if it wanted to.

Right.

I do want to note one caveat, which is it is possible that even if the court says the Voting Rights Act does not have a private right of action allowing individuals to sue, it's possible litigants could bring suits to enforce the Voting Rights Act by relying on the right of action created by another federal statute, the General Civil Rights Statute 1983. Remember, as we talked about Justice Jackson,

Jackson wrote that awesome majority opinion in Tulesky that we were so excited about that preserved private parties' ability to use 1983 to enforce other federal laws. And this case underscores one reason why that was such a huge win. All right. Well, that was bleak. There's a glimmer of hope, KBJ hope at the end. At the end. That's true. Thank you for letting us end it on a slightly upbeat note. Overall, though, bleak. So let's lighten it up further with some previews of this week's cases.

Strict Scrutiny is brought to you by IXL Learning. Do you want to set up your child for success? You know, so that they can tell the difference between smog and laughing gas? Maybe you want to save money on private tutoring, or it's out of your budget, or maybe it's a big school year for your child starting a new level of school, or you've moved, or they're starting a new school, or whatever the case is.

IXL Learning is an online learning program for kids covering math, language arts, science, and social studies. IXL is designed to help them really understand and master topics in a fun way.

Powered by advanced algorithms, IXL gives the right help to each kid, no matter the age or personality. There's one site for all the kids in your home, pre-K to 12th grade. Kids can use it at home on the computer or on the go through the app on your phone or tablet. No more grading those worksheets. IXL grades everything itself. And no more trying to figure out how to explain math questions or grammar rules yourself. IXL has built-in explanation videos.

One in four students in the U.S. are learning with IXL. IXL is used in 95 of the top 100 school districts in the United States. My nephew is learning how to read. I've tried teaching him with friendship bracelets, but let's be honest, IXL would definitely be more helpful so that he could actually read said friendship bracelets. He does like the Heiress Tour movie after all.

Make an impact on your child's learning. Get IXL now and strict scrutiny listeners can get an exclusive 20% off IXL membership when they sign up today at ixl.com slash strict. Visit ixl.com slash strict to get the most effective learning program out there at the best price.

This show is sponsored by BetterHelp. It's the end of the Supreme Court term, which means it's time for a self-care refresher. What are your self-care non-negotiables? Maybe you never skip leg day or therapy day. When your schedule is packed with kids' activities, big work projects, and more, it's easy to let your priorities slip.

Even when we know what makes us happy, it's hard to make time for it. But when you feel like you have no time for yourself, non-negotiables like therapy are more important than ever. And as we know from this season of The Bear, non-negotiables are a BFD.

If you're thinking of starting therapy, give BetterHelp a try. It's entirely online, designed to be convenient, flexible, and suited to your schedule. No travel time. Just fill out a brief questionnaire to get matched with a licensed therapist and switch therapists anytime for no additional charge so you can find someone who works for you. Never skip therapy day with BetterHelp. Visit betterhelp.com.

What's the one thing most history books all over the world have in common that they're seriously lacking in the melanin department?

Wondery's podcast Black History for Real introduces you to the most overlooked Black history makers you should already know about. In recent episodes, they've told the story of the women of the Black Panther Party, like Assata Shakur, who's still a fugitive in exile, and Elaine Brown, the first female chairperson of the party. And there's so much more, like why a young Samuel L. Jackson got expelled from Morehouse College, and why country keeps trying to keep Beyonce out.

Follow Black History for Real wherever you get your podcasts. Discover more to the story with Wondery's other top history podcasts, including American History, Tellers, Legacy, and even The Royals.

The first case the court is going to hear this week is SEC versus Jarkeesie. So this is an important administrative law case that is part of our term theme. We identified at the beginning of whether government as we know it is constitutional and whether effective government is constitutional. And big question mark, we really don't know. So here's what's at issue in the case. The case involves three different and distinct challenges to the Securities and Exchange Commission, the SEC. That's the key agency that protects investors and regulates securities markets.

Part of the agency's business is to oversee enforcement proceedings within the agency. That is, the SEC might accuse a company of violating some securities law and seek a civil fine. And when it does that, it could choose to bring that case inside the SEC, where it would be decided, at least initially, by administrative law judges. When the SEC does pursue that route, the determinations reached inside the agency can subsequently be challenged in federal court, so the agency proceedings are not the last word on the question.

We actually did a full episode of Jon Stewart's former show, The Problem with Jon Stewart, on this topic and actually on Jarkeesie more broadly. So you can always go back and listen to that episode if you want an even deeper dive into the specifics and the stakes of this case than we're giving you now. That was such a flex, Kate. You're just like, if you really want a deeper dive, you can go and listen to our very dear friend Jon Stewart's podcast,

That was a great time. And I, for one, think our listeners who may have been more recent converts to the pod may be unaware of it. So just bringing it to their attention. Public service. Once upon a time, we did hang out with Jon Stewart. FYI. Twice. It was twice. Twice. On our computers. On our computers. Like, yes. Okay. Okay.

Anyway, the question in Jarkeesie is whether all of this gesticulates wildly is unconstitutional. So before we get into the various theories at play here, I think we should maybe get a little primer on how these administrative proceedings work and why they operate in this way. So first and foremost, there are

There are a lot of laws and regulations, and many of them are very complicated. And federal courts, as a general matter, don't have docket capacity in order to hear them all, which is to say federal courts don't have the time or the resources to adjudicate every single thing that might come up in the context of agency administration and to allow adjudications.

all of those particular matters to go before a jury for a jury trial. So you'll remember, we talked about this before. There was a district court judge in Austin who had literally over 1,000 cases per year. And so the idea that you would add tens of thousands more matters to a district court's docket by allowing agency actions to proceed through federal courts is just unfathomable. I mean, absolutely incredible.

get real. This isn't how this is going to work. So that's one issue, just the practicability of adjudicating all of these matters in federal court.

The second question is that a lot of these agency administrative matters involve complicated practices. So in the context of the SEC, it involves complicated financial practices on which agency adjudicators have actually become quite expert and therefore quite efficient at dealing with. So the question for us, again, is one of efficiency. Do you want a federal judge to have to get teched up

on crypto practices, for example, in order to adjudicate a case. Do you need for them to sort of get up to speed on blockchain in order to deal with this? When in fact, there are agency administrators who already know how all of this work and are familiar with these practices, whether it's investment practices or mortgage companies and their practices in order to adjudicate these matters. So the point of all of this is to say that

There may actually be circumstances where it is more efficient and a better use of resources to have an expert body oversee and adjudicate these matters. But there are people trying to blow all of this up. And they argue that the SEC, or at least this aspect of SEC enforcement, is unconstitutional for not one, not two, but three distinct reasons.

So first, they say, the law that allows the SEC to choose whether to bring these cases in the SEC or in a federal court in the first instance is an unconstitutional delegation of authority to the SEC. That is, it gives the agency too much unfettered power to decide where to bring the case –

in the agency or in a court. The theory is truly insane and makes no sense. Just putting aside how bonkers the non-delegation doctrine broadly speaking is will explain why, but it's especially bonkers in its application in this case. So the non-delegation doctrine that Kate was just referring to is the idea that Congress cannot delegate aspects of its legislative power, basically its power to make rules to administrative agencies, which are housed in the executive branch, authorizing the agencies to take certain actions.

And typically, the non-delegation doctrine is cast as the idea that Congress can't allow agencies to decide whether to impose certain rules about private citizens' conduct, like an agency can't decide whether to impose a vaccination requirement.

Even stated that way, the non-delegation doctrine has no historical or textual basis. We did a summer episode a while back with my colleagues Nick Bagley and Julian Mortensen about how they have debunked the historical basis of the non-delegation doctrine. And since then, there's been even more work that they have done, as well as Nick Perillo at Yale have done, debunking this doctrine. But bracket that for a second. In this case, the challenge isn't to the agency imposing rules.

about how private parties live their lives or what private businesses can do, it is literally challenging the agency's ability to choose whether to enforce the rules that Congress made for securities law in federal court or instead within the Securities and Exchange Commission, the agency.

And that kind of enforcement discretion has never been viewed as raising non-delegation concerns. And it's pretty wild, but very on brand that the Fifth Circuit suggested otherwise. But though that is kind of like the crux of this case, we doubt it will be the primary focus of oral argument that is this particular non-delegation challenge.

That's the first theory for why agency adjudication is bad, bad, bad, and we would prefer a less efficient model of adjudication. The second theory that the challengers advance is that it is unconstitutional for administrative agencies to hear these cases because the Seventh Amendment –

requires a jury trial whenever civil penalties are in play. And this theory implicates the line of cases about when Congress can assign adjudications to agencies without violating Article III.

In those cases, the court has said that it is unconstitutional for Congress to allow agencies to hear cases when the cases involve, quote unquote, private rights. So again, in keeping with the non-delegation doctrine. But it is fine for Congress to assign public rights cases to agencies. So

What has the court said counts as a public rights case versus what counts as a private rights case? Well, public rights cases are cases that involve the government. And I will, again, point our listeners to the caption of this case, SEC versus Jarkeesy, which means that this case involves a government actor, the SEC. So that should be fine.

Admittedly, however, this argument is unlikely to get a lot of traction at oral argument in large part because the court's Seventh Amendment and Article III cases are kind of a mash and a mess and they are not really harmonized. So I don't think there's going to be a lot of fodder to sort of dig in here.

And then there's a third challenge, which might be the one that gets the most traction in this argument. And that challenge says that it is unconstitutional for Congress to insulate administrative law judges from political influence by saying these judges, ALJs, can be removed only for cause, not for just no reason at all. The

The court refashioned the law about removal of executive branch officers, that is, you know, which officers have to be removable at will by the president, in SELA law, which held that the head of the CFPB had to be removable by the president at will rather than only for cause, as the statute provided. So it's really about how much control the president has over subordinate officials inside the executive branch, and

and whether the pockets inside the executive branch, where there's a degree of insulation from political control and political influence, can be reconciled with Article 2 and the power conferred on the president in that article.

Okay, so the question here is whether that line of cases, that refashioning of the law of removal, will extend to administrative law judges. And there are good reasons, I think, for administrative law judges to be treated differently in this context. So there are really good reasons for adjudicators to actually be more neutral and not be subject to removal by the executive branch at the executive branch's will. And those reasons should be obvious. We don't want judges overseeing cases

that are heavily politicized where they feel like they could be removed for cause. And civil service protections exist for this very reason, to ensure neutral adjudications within the

administrative branches. And all of this bumps up against this court's insistence that Article 2 of the Constitution requires the president to have almost unfettered power to remove executive officers so that the president can control how the executive officers do their jobs and how the agencies do their jobs.

This case, to me, is just kind of a deregulatory shitshow waiting to happen. You know, the amicus for you supporting the challenge to the SEC here, read kind of like a who's who list of deregulatory dark money. It's actually quite impressive. You know, that would actually make an amazing baby onesie deregulatory shitshow. That would be a great baby onesie. Wouldn't that be good? Let's get the crooked folks on that. Crooked team, get on that.

Well, so Leah, yes, I think it's all very, very bad. I think it's bad, though, for a couple of reasons, not just because of the flood of deregulatory dark money that is interested in this case and would love to see the SEC hobbled.

as a force for regulation of corporate industries. I also think it's a part of this broader plan to hobble or dismantle the administrative state and make it harder for the government to regulate all kinds of industries more generally. I also think specifically in the context of the enforcement of securities laws, it's really bad because if Jarkeesie wins,

It will make it harder to enforce security laws because the SEC will sort of be faced with this issue where everything has to go through the district courts and the district courts can't handle everything. So there's going to be this huge, long lag in getting things dealt with through the courts. And they're likely to feel real pressure to really focus on the massive cases as opposed to even sort of incremental cases that are smaller, less high stakes. And so-

That's where you're going to see the agency action. It really feels like these cases, or at least this sitting or this term, is like the what sparks joy list among Republican Party. Because we'll get to the tax case more later, which is basically like tax cuts in the form of judicial rulings. This is basically make it harder to enforce white collar crime, criminal laws in hobbling the SEC.

and protecting consumers. Obviously, they tried to do that with dismantling the CFPB, and so much of that is just part of the same project. And they're still trying to do that with the CFPB, right? It's not an accident that it is the financial regulatory agencies that are the most in the crosshairs. So the Selah Law case we talked about was about the CFPB. The agency survived, even though there was this aspect of it that the court found unconstitutional. But they're back with an existential challenge to now the funding structure of the CFPB. So not coincidence that these financial

financial regulatory agencies are the ones that they are just throwing constitutional arguments at and hoping something sticks. And if they throw enough arguments and they have a receptive court, like they might succeed in one of them. And, you know, I don't know whether any of these Darkeesie arguments will succeed. I do think that the one, the last one, the one about presidential control may be the most likely and also the one that could have the most profound implications depending on if the argument is successful, depending on how the opinion kind of shakes out.

But for sure, the reasoning in the case could have implications for, Melissa, you mentioned the civil service a couple of minutes ago. But, you know, there are pockets of independence inside the executive branch. Some of these for-cause removal protections positions that by design are supposed to be somewhat insulated from politics.

But that's also a description of the civil service writ large, right? So several million employees who work for the federal government inside the executive branch are protected from summary removal by the president, right? There is a web of statutes and regulations and constitutional principles that like have made the civil service part of our constitutional order for 150 years. And I think there's a chance the court is interested in unraveling that web. And I don't think it's going to happen in this opinion, but it's something that both

Trump on the campaign trail, others like Vivek Ramaswamy have talked about like dismantling the civil service. And this is one way that the court could really give them an enormous assist in doing that. This is basically like the judicial realization of drain the swamp, right? Like they have just like taken that mantra and made it into a proposed doctrine. And this is what they're trying to do with it, as always. So as listeners can probably tell,

I have a cold. My voice sounds funny. And still, I was not going to let my cold stand in the way of doing an in-depth preview of the upcoming cases concerning the Armed Career Criminal Act. So that is what we are going to turn to next. So the court will be hearing arguments in Brown v. United States, which is actually a pair of cases, Brown and Jackson, about the Armed Career Criminal Act.

ACCA, as we have noted many times, but Melissa, your camera went off. I can't tell whether that is my Riverside acting up or just your subtweeting me. But ACCA, as we have noted many times, but clearly not enough, is a federal law that imposes additional penalties on certain persons who are convicted of firearm offenses.

Specifically, the law imposes certain mandatory minimum sentences on individuals if those individuals have multiple prior convictions for violent felonies or controlled substance offenses. And the question in this case is how or really when do you determine whether something is a controlled substance offense to impose those mandatory minimums?

The federal government regulates controlled substances through schedules, so classifying certain substances as Schedule 1 or Schedule 2 drugs, for example, and how a drug is classified on the schedule determines what penalties are associated with possessing the drug and what limitations exist on possessing or distributing the drug. So the question in Jackson, which is one of the two companion cases, is whether ACCA's definition of controlled substance offenses incorporates the federal drug schedules at the time of the federal offense. So let's say you're convicted of a state drug offense involving...

Margarine? Yeah, that was the hypo I came up with. Look, I liked it, okay? Just run with it. I'm a Midwesterner. So let's say you're convicted of a state drug offense involving margarine at time one.

And then you're convicted of a federal firearm offense at time two. But by the time of time two, federal law no longer classifies margarine as a controlled substance. Do you have a prior controlled substance offense if the thing that was at the heart of the state offense is no longer federally criminalized by the time of your firearm offense? I love this guns and butter kind of reference here. This is great. Thank you. This is all Leah. The question.

I mean, all of the ACCA stuff is Leah. I grew up in Minnesota. We literally carved like the beauty pageants queens into large chunks of butter. Princess K of the Milky Way. Butter is my life. Is margarine functionally criminalized in Minnesota? No. Okay. Just curious. Okay.

The question in the companion case, Brown, is whether ACCA's definition of controlled substance offenses incorporates the federal drug schedules that existed at the time the offender was sentenced. So let's say you were convicted of a state drug offense involving margarine at time one, and then at time two, you're convicted of a federal firearm offense.

And then at time three, when you're about to be sentenced on that firearm offense, federal law no longer classifies margarine as a controlled substance. Do you still have a prior controlled substance offense for purposes of ACCA? So many questions.

And one of the weird things about this case is that in Brown, the federal government argued for a time of offense rule, i.e., the rule that the petitioner in Jackson is now asking for, rather than a time of prior conviction rule, which is what the government is now seeking.

The government says that if something was a controlled substance offense under federal law when you were convicted of the offense under state law, well, it's a controlled substance offense even if the federal government later changes the drug schedule and it's no longer a controlled substance. Co-host's privilege of talking even more about federal sentencing. This is going to be smooth like butter. So I think the case should go at least –

I think the case should go at least one of the defendant's ways and reject the federal government's time of prior conviction rule. That's partially because there's a strong presumption that courts apply the federal statutory penalties that are in place at the time of an offense for which you're sentenced, i.e. at the time of your federal firearm offense, not at the time of your state-controlled substance offense. And the federal government even concedes that's a general principle. They even concede that that principle applies

applies to ACCA. It just says the principle either doesn't apply to the controlled substance portion of ACCA, which doesn't make a ton of sense because then half of ACCA would contain a time of offense rule and half of it wouldn't. Or the federal government says ACCA's definition of controlled substance doesn't actually incorporate the federal drug schedules, which is not actually how the statute is written because, you know, it defines a controlled substance offense as an offense under state law involving

a controlled substance as defined in 21 USC 802. And then 802 actually incorporates the drug schedules. Also the neighboring provisions of ACCA like 924 G3 define separate firearms offenses and they use the controlled substance offense definition. And because those provisions define new offenses, i.e. like distinct crimes, the government concedes that they have to include the drug schedules at the time of the federal offense, not at the time of your prior conduct that might have violated state law.

Okay. And the government is relying on analogies to other areas of law and just other things more generally that don't really strike me as being completely apt here. So not directly on point. So for example, the government points to McNeil, which involved amendments to state drug offenses. And so on that logic,

Say you're convicted of a marijuana offense, but the state subsequently legalizes marijuana but doesn't extinguish your conviction. You would still have a controlled substance offense, but that fact doesn't seem to shed light one way or another on the questions that are at issue in Brown and Jackson. So not quite sure why the federal government relies so heavily on it.

The government's also relying on federal immigration law, which doesn't really contain the same principles about time of offense rules as does ACCA. So that seems weird as well. Now, Congress did elsewhere in ACCA rely on a time of prior conviction rule. So that's for prior convictions referred to in 922G.

But the thinking there seems to be, one, that the statute uses different words, conviction versus an offense. And two, that's just different because right now all of the prior offenses that would trigger ACA are listed in 922G, whereas drug schedules aren't listed in federal law. So locating prior drug schedules raises some administrability problems and notice problems that don't apply here. So we will see what happens.

The court is also going to hear in this upcoming sitting McElrath versus Georgia. And this is a double jeopardy case. And just as a reminder, the double jeopardy clause of the United States Constitution says that you cannot twice be put in jeopardy for the same offense unless, big caveat, the same conduct is subject to prosecution by two separate sovereigns. That was the separate sovereign proviso that was discussed in Gamble back in 2019. In any event,

The court has said that the double jeopardy clause means that if you are acquitted for an offense, you cannot be retried for that offense. But let's say there's a certain kind of issue at trial. Like what if you have a mistrial or if you have a hung jury? If that happens, well, then you could be tried again and there would be no double jeopardy problem.

So whether the double jeopardy clause applies depends on what happened in the first proceedings and what courts can infer from those proceedings.

So here the jury returned a verdict on two different charges. On one charge, the jury acquitted. On the other, the jury convicted. The problem is that the charges arose from the same set of facts. And the Georgia Supreme Court concluded that it was logically and legally impossible for the defendant to be guilty on one of the charges and innocent of the other. So the court vacated both of the verdicts. And the question is whether the defendant can now be retried after that.

And the facts here are truly grotesque. They involve murder charges against the defendant, Damon McElrath, who is said to have murdered his mother. He was charged with malice murder, felony murder and aggravated assault all under Georgia law. And he raised insanity defenses to all of these charges.

Under Georgia law, a defendant is entitled to a not guilty by reason of insanity verdict if he shows he lacked the mental capacity to distinguish right from wrong or that a mental delusion overpowered his will or that he lacked the criminal intent to commit the act.

Here, the jury found that McElrath was not guilty by reason of insanity on the malice murder charge, but they found him guilty but mentally ill on the felony murder and aggravated assault charges. And as Kate said, the Georgia Supreme Court said it is not possible to be simultaneously insane and not insane during a single criminal episode. So it vacated both verdicts and subsequently held that McElrath could be prosecuted a second time on...

And that, of course, is what prompts the question about whether the double jeopardy clause of the Fifth Amendment would prohibit that second prosecution for a crime of which McElrath was previously acquitted, at least as to one charge.

And here, you know, at least to me, it seems like the Supreme Court's prior cases, you know, support the defendant. There are cases saying a defendant can't be retried on an acquitted charge, even if the acquittal is inconsistent with the defendant's conviction on related charges. There are also cases saying an acquittal bars subsequent prosecutions, even if the jury retries.

hangs on a related charge and the acquittal seems inconsistent with the hung jury. And it feels like the Georgia Supreme Court here tried to make an exception to those cases for instances where the verdicts aren't just inconsistent, but irreconcilable. And that's just a really tough line to police. So there are also cases saying retrial, you know, would be barred if a court directed an acquittal, but that was mistaken. And I think all of those kind of generally support the defendant.

So in terms of what the state is trying to argue here, it's basically saying that whether something is an acquittal depends on state law and that Georgia law, as defined by the Georgia Supreme Court, says there is no acquittal when an acquittal is logically irreconcilable with a conviction. But

If you think about it for a minute, it can't just be state law that defines this, right? Or the double jeopardy clause wouldn't mean much of anything, since if that's the rule, states could just say nothing really amounts to an acquittal, and they'd thereby avoid the federal constitution's double jeopardy prohibition altogether. And also, other cases don't seem to have turned on how a state defined an acquittal. So Evans concluded a legally erroneous court-directed acquittal was still an acquittal for purposes of the double jeopardy clause, even though that was presumably consistent with state law.

So that's Miguel Rath. And again, I think that'll be a really interesting case. For those of you who are not super teched up on the Double Jeopardy clause, I highly recommend the Ashley Jed movie called Double Jeopardy, which will spell everything out for you. And also it's a very good movie. But let's go on. I love that movie. It's such a good movie. Whenever it's available on flight, I always watch it. It's so good. It's just so good.

And last case, we'll mention briefly Wilkinson v. Garland is a case about whether certain agency determinations and immigration proceedings, specifically whether there is an exceptional and extremely unusual hardship, are reviewable in court proceedings challenging the immigration determination because they are mixed questions of law and fact or rather are discretionary judgments that are just unreviewable.

This week is a really big sitting, but it gets even better because next week the court is going to be hearing another monster block of cases. And we're going to focus more on those cases when we do the recap, but we wanted to just give you a little sketch of some of the big cases the court will be hearing the following week. So first up is Harrington versus Purdue Pharma, which involves Purdue Pharma, the manufacturer of OxyContin. And here, this is all taking place in the context of the

Purdue Pharma bankruptcy deal. And the court will consider whether the bankruptcy code permits non-consensual releases of third-party direct claims against non-debtors. And I think this is really actually fascinating because

The Purdue bankruptcy deal has effectively been stayed by this court, and the deal would give billions to victims of the opioid epidemic and municipalities who've been affected by the opioid epidemic in exchange for shielding members of the Sackler family who own Purdue Pharma from future opioid litigation. And so...

Here, all of the parties to this deal are very much in favor of this deal going through. But, and there's a huge but, the federal government has some concerns. So the Biden administration, through the DOJ's U.S. trustee program, presented the deal to the Supreme Court and requested the court's review. And in the government's petition, it argued that if this bankruptcy plan were approved,

It would, quote, leave in place a roadmap for wealthy corporations and individuals to misuse the bankruptcy system to avoid mass tort liability, end quote.

So yes, great deal for all of the people involved, but the government says this is basically a roadmap for everyone who does wrongdoing to get out of tort liability going forward by simply settling their cases and declaring bankruptcy. Purdue, of course, predictably contends that any delay in implementing this settlement will cause quote unquote grievous harm to thousands of people who have been affected by the opioid epidemic. So yes,

If you've been following Dope Sick on TV or reading Empire of Pain, this is what this is all about. You'll find all of this very interesting, even if bankruptcy is often very technical and maybe a little inaccessible. I think this might be a little more accessible.

So there is also the hugely important tax cut. Sorry, I thought literally cut. It's not a tax cut. A hugely important tax cut. Except for billionaires. No, the law was part of the tax cut. Tax cut slash tax case. Yes. Yeah. Okay. So the case is Moore versus United States, and it's about whether the 16th Amendment allows the government to tax unrealized income. And that theory could limit the federal government's ability to adopt a wealth tax or billionaire tax, since the mega rich often have their wealth and holdings that aren't technically realized just yet.

Or so we've heard. We don't actually know because we are not the mega rich and we don't have mega rich friends. No, and they haven't invited us on their private jets to like explain how their wealth. Not once. Exactly. No, not once.

But this is a case where one of the lawyers challenging the tax is David Rifkin, who's representing Leonard Leo in the investigation by the D.C. Attorney General into Leo's financial networks. Rifkin was one of the Wall Street Journal reporters on the hours-long interview with Justice Samuel Alito. And we will be spending a lot of time on this case during the recap, so please fear not. Wait, Melissa, do you?

Did you want to say something? I'm just amazed. He's such a multi-hyphenate. He is both a lawyer and a journalist. What else are we going to find out? Well, sometimes he wears one hat and sometimes he wears the other. Well, I mean, hats are important. Sometimes you take them off and you can do things and you put them back on and do other things.

Speaking of his lawyer hat, I did want to note that what can only be described as life imitating art, the lawyers for the tax challengers filed a reply brief. And what was interesting to me about the reply brief is that it seems to try and evade the word limits of reply briefs by smooshing together and consolidating some abbreviations like lawyer.

Pet, period, no space. BR, period, no space, 27. So the lawyers who have devoted themselves to helping people dodge taxes and get around taxes are surprised finding ways to innovate and dodge and get around word limits as well. Just very on brand. That's what's known as a word shelter.

I don't think you knew that. It's a word shuffler. It could be that too. Is that in the Supreme Court's ethics code or the Internal Revenue Code? If it's not, it should be. It should be. The Code of Misconduct, it should definitely be there. Yeah. It seems like there's some pretty interesting lawyering happening for the petitioners. The federal government pointed out some of this in their briefs. So there's this one sentence that says,

They, you know, that is the petitioners, quote the reporter's paraphrase of the appellant's losing argument in this Supreme Court case. And then they note in a parenthetical, quoting 55 U.S. at 591, though the court's opinion begins at 602. You know, for lawyers who like don't follow this, they're literally just quoting, you know, some secondary sources summary of the arguments in the case, not anything the court said. It's just ridiculous.

It's kind of funny. I think if you're not like deeply immersed in the folk ways of like, you know, appellate lawyering and stuff, this is like, it does not seem like a big deal. This is a very, very intense burn and also a weird step. They have quoted, this is an error that I am sure every law student who's like researching a Supreme Court case, or at least I will raise my hand and say, I remember doing this the first summer I spent doing legal research and citing something that was in the actual summary that's prepared by the reporter of decisions, as opposed to that as part of the Supreme Court opinion.

And it's kind of embarrassing when it happens and it's not a big deal. If you are representing parties before the United States Supreme Court and filing briefs in that body, this is not an error that it's okay to make like at all. And I love that the SG's office was just like, we're going to pettily point this out. Like it's petty. I think it's petty to point it out. But I really admire it. Supremely petty and I love it. Yes.

I mean, let's just be fair. He probably wasn't wearing his Supreme Court advocate hat when he was writing this brief. Exactly. He's wearing his summer associate hat. He's wearing his 1L law student. First semester 1L hat. And so then it's fine. So never mind. I withdraw any criticism. I mean, maybe the SG's office shouldn't have been petty LaBelle on this. Anyway.

The court will also hear an important employment law case, Muldrow v. The City of St. Louis, and that case involves Jetanya Muldrow, who is a sergeant in the St. Louis Police Department. She was transferred to another department, and she claims that the transfer was animated by her supervisor's view that women should not work in that particular department. The work was too dangerous for women. So Muldrow sued, arguing that the transfer to a different department constituted prohibited sex discrimination under Title VII.

However, the Eighth Circuit concluded that because her pay had been unaffected and she had not actually been demoted, the transfer decision did not constitute an adverse employment action sufficient to provide relief under Title VII. And here's the interesting part for purposes of this case in the Supreme Court. The Eighth Circuit's disposition of this question differs from the way that the D.C. Circuit held. There, the D.C. Circuit held that discriminatory job transfers are

under Title VII, and employees don't have to prove some additional harm over and above the fact of a discriminatory job decision in order to establish a Title VII claim. So this is a big case that will have lots of implications for public employees, and so we're really watching it for that question. It's also...

One of the cases that Leah mentioned in our term preview that, like Pulsifer, could be an opportunity for the statute's text and structure to lead the justices to the right outcome here if they will just let it.

Just a couple of recent shadow docket developments that we wanted to highlight. The first of which is a little over a week ago, the court denied Florida's request to allow Florida to enforce its anti-drag law while the challenge to that law proceeded. So here a district court had found that the law was likely unconstitutional and had enjoined it. This was a challenge that was brought to the constitutionality of this drag ban by Hamburger Mary's, which says it hosts family-friendly drag shows, which sound awesome. But it also said that it was a challenge to the constitutionality of this

Um, the 11th circuit. I love it. I want to go to Hamburger Mary's. I think there are a few, I think it's like a little maybe chain, but I don't know if there's one. Yeah. Um,

Anyway, so the 11th Circuit declined to issue a stay. Florida went running to the Supreme Court to ask it to stay this district court order, but it fell short. Only Justices Thomas and Alito and Gorsuch would have granted the application for a stay, but they didn't write to explain why. But you did have a separate writing from close allies Kavanaugh and Barrett who concurred that they didn't think the stay should be granted, meaning, you know, the law should stay on hold.

And they wrote separately to explain that actually because Florida had focused on the scope of the relief as opposed to the substantive First Amendment issue in its stay application, the court wasn't likely to grant cert on just that issue. And so denial was appropriate here. But for now, importantly, that ban is not in force and effect. And Hamburger Mary's can hold its, I guess, drag brunches.

Three additional addenda on that. First, I'd just like to pause to note that libertarian hero Neil Gorsuch would have allowed Florida to ban drag shows. So just keep that in mind. Small government. Exactly. I wanted to pour a little bit of cold water on the fact that

Kavanaugh and Barrett didn't allow Florida to enforce this law because as Kate noted, it wasn't because they concluded the law was likely unconstitutional. It was instead because they suggested it didn't actually, that is the case didn't actually cleanly present that question given the filings to date. And so that's like a little bit unclear how to read what they might do in a future case or the issue directly before them. And then finally, while Barrett joined Kavanaugh's concurrence,

She didn't join one footnote that just kind of contained an aside on the propriety of universal injunctions and setting aside agency rules, even though those weren't actually an issue in the case. And it was just super bizarre.

I actually thought her not joining was like, I'm not sure this makes any sense, Brett, so I just won't join it. I don't think she disagreed with anything. I'm not even sure what it said. But okay, so that was how you read the withholding of the join to. Yes. Typical Brett Kavanaugh concurrence, just kind of like an irrelevant, confused and confusing aside. Kav currents. True to form. Kav currents. Indeed. Indeed.

One other note on the shadow docket, you know, around the same time, the court denied certiorari over a dissent by Justice Jackson, joined by Justices Sotomayor and Kagan. In the case of Michael Johnson, an Illinois inmate who was held in essentially complete isolation in a tiny cell, even denied time to exercise outside for three years. It's an extremely powerful dissent that is well worth a read. Yeah.

It's unbelievably egregious facts. Solitary confinement is an abomination no matter what. But this is like out for an hour to shower once a week. No, 20 minutes maybe to shower once a week, literally zero time to exercise. You know, filthy cell, nothing to clean with except if he spent money on soap at the commissary. Like, you know, most of them are fine with that. So that's the court we have.

So we do have some exciting news about one of us. Kate is going to be starting a new job in the new year. And we were all very excited about that. And listeners are very excited as well. But I'm not. Wait, I'm not joining a new podcast. Should I? Exactly. She's not leaving.

the podcast. People were seriously expressing concern when the news broke on Twitter. I'm not joining a new podcast. Why do people think that going to a new law school means that you're going to leave us? I don't know. I am not leaving you guys. No, I'm moving to Penn Law School, which is bittersweet because I've had an amazing decade plus at Cardozo, which is an amazing institution. And I'm

And it's normal to change institutions, right? Melissa, you were at Berkeley for years. Leah, you were at Irvine before Michigan. So this is something that does happen. So, you know, it doesn't in any way suggest I didn't love Cardozo, which I really did. But Penn is amazing. I was there last semester. I had a really great experience and I'm excited and I'll be commuting between Brooklyn and Philly.

And I'll have a microphone and some headphones in my office there. So nothing will change in terms of the podcast and your ear holes. Wow. I mean – I'm looking forward to our next show at Penn, but I really want them to line up Gritty as a guest for the next one. And cheesesteaks. I want a cheesesteak. I feel like – yeah, yeah. These are requests that I probably should have put in, you know, my negotiations with the law school. Oh, you know what else? We won another show. I want us all – We won cheesesteaks.

We also want to be filmed running up the library steps where we're going to go like this at the top. And we're going to like Rocky. Make that happen. So Philly is an amazing dean and could make anything happen. So I feel like this should be a no brainer. Anyway, yeah. So we'll do another live show in Philly at some point. I'm excited about that. But yeah, that's the news.

Hi, I'm Stacey Abrams, host of the brand new Crooked podcast, Assembly Required with Stacey Abrams. Each week, we'll work together to better understand one of those big issues that seems insurmountable. Whether it's the Electoral College, America's loneliness epidemic, or the future of Hollywood post-strikes, I'll challenge you to dig in and ask, how did we get here? What obstacles lie ahead? And what can we do to get good done? Are you in?

Episodes of Assembly Required with Stacey Abrams are available starting August 15th. Head to your favorite audio platform and subscribe now so you never miss an episode. And now for the previewed special court culture segment, we are delighted to be joined by Representative Ro Khanna, who has represented California's 17th district in Congress since 2017. Welcome to the show, Representative Khanna. Thanks. I'm excited to be on.

So in a previous career, you were a practicing lawyer. You also taught at law school. So this should all be familiar terrain to be surrounded by law professors. And also, it is nice for us to know that we law professors can grow up to live our dreams as well. So this is you. I'm very intimidated. I was reminded of like moot court back in law school. So take it easy on me. We'll get real Socratic with you. How's that? So I'm going to start out with a tough question. And it's this.

We arranged this interview a while back and had planned to discuss your political and anti-corruption reforms, but then the Supreme Court adopted an ethics code. So why didn't that fix everything? Why are we still here?

Well, I did look at the ethics code and then they basically say, well, we adopt the ethics code of what the judicial conference says. So I said, OK, what does the judicial conference say? And it turns out that there's no disclosure requirements. I mean, there's no requirement for enforcement. It just says if you feel that something's a conflict, then you shouldn't do it.

I can't imagine that there is an institution with lower ethics standards than the United States Congress, but it makes me feel like a chump that I have to file a disclosure for almost everything I know. And so, you know, the first step could just be disclosure forms for the Supreme Court.

So obviously there's a problem. So I think to shift to remedies, so one is the justices could actually adopt a code of ethics that actually has real teeth, maybe has some actual prohibitions on these kinds of gifts and largesse from billionaires, maybe has some kind of enforcement mechanism, maybe has mandatory language. They did none of those things in this particular code of ethics. So is it possible that there's another institution that might be better situated to actually address the question of Supreme Court ethics and Representative Khanna? What institution might that be?

Well, look, I think Congress has to do the basics, and that is pass what the American people want for a code of ethics for the Supreme Court. And the other thing is, in history, politicians have been much more willing to call out Supreme Court justices when they're totally out of touch with

the facts of American life. I mean, Lincoln ran against an illegitimate court. FDR ran against an illegitimate court decisions. And I think our political leaders should be less intimidated to call out Supreme Court justices and point out why they're not doing democracy's work.

So I think that's a great place to kind of focus on. Here's a question, though. It seems like your colleagues in Congress are a little scattered right now, especially on the Republican side. Is this body too polarized at this moment to actually be able to take up the challenge of imposing real limits on the Supreme Court? Is this something the Senate should focus on? Should Senator Durbin continue with the effort to subpoena Harlan Crowe and Leonard Leo? Or is this...

out of the barn and there's very little that Congress can do under the current leadership to rein this in. I,

I think Senator Gervin should continue to focus on it. I think the House Democrats should do what we can. The Republicans aren't going to go along with it. I mean, the reality is, if you mentioned ethics in the Supreme Court, the Republicans balk because they've gotten some of the decisions that they wanted out of this court, most prominently, obviously, the overturning of Roe versus Wade. And they want this court to relook at Chevron deference and

undermine the administrative state. So they don't care about the ethics issues. But the president, in my view, and House Democrats and Senate Democrats should run on this in 2024, that we are going to hold the Supreme Court accountable to some basic ethics. So you've made the point politically, right? So there absolutely has been, and I think we totally agree with this, a neglect of the bully pulpit, both like from the White House and from a lot of quarters in Congress, that

the public actually does care about the Supreme Court right now, and the public is pretty unhappy with the Supreme Court, and more attention focused on some of the shortcomings of the Supreme Court actually maybe could both be constructive and maybe politically advantageous. So I think we totally agree with all of that. In terms of kind of brass tacks, so I think you actually have some specific proposals of legislatively, in addition to rhetorically, what Congress ought to do. And I think some of it sweeps in Congress, right? Ethics in Congress as well as ethics in the court. So could you tell us a little bit about the specifics of what you'd like to see done?

So most of mine is focused on Congress. I mean, ban PAC money, ban lobbyist money, don't have members of Congress become lobbyists. I mean, you could have the same applied to justices if they leave the court, don't have them become lobbyists. Ban stock trading with members and justices.

and have some term limits. And the term limits, I believe, for Supreme Court justices should be 18 years. They can go on to an appellate court. They can go on to a district court. They just don't have to be on the Supreme Court. And the president's commission looked at this. And the way I read the report, they said that that was constitutional. You still have someone being a judge for life. They're just not on the Supreme Court for life.

And we know that these guys love to find facts as if they were district judges. So really, right? This would just be allowing them to fulfill their inner passion for fact finding. That's pretty good. So Representative Kanna, you've already alluded to at least one case that the court will be hearing this year. But I guess, you know, in light of this package of reforms that is designed to

help the court save the court from itself, I guess. Like, what is the case that you think the court is set to hear this term that there are now serious questions about the justice's partiality or neutrality in light of the lack of ethics rules around the court right now?

I do think it's the Moore case on December 5th, which you're going to hear on the wealth tax. I mean, you've got the American people who are so angry and frustrated at the wealth disparity. You've got three of the richest Americans who own more than the bottom 50%. You've got my district in Silicon Valley, $10 trillion of wealth, a new millionaire, a billionaire almost every day. And most Americans can't afford housing, can't afford childcare, can't afford rent.

And so now you have the Supreme Court saying, can we have a tax on these wealthiest Americans or not? Can we tax wealth? And you're going to have these justices decide that case while they're flying, being flown around in private planes and given fancy vacations.

I mean, you don't have to be a constitutional law professor to know that that doesn't pass the smell test. It doesn't sit right with people. As it is, they think you have to be an elite to get to Congress or the Supreme Court. This just furthers that. And so that's something that I think ethics could help mitigate, the perception issue.

So we are coming up on the holidays, and Representative Khanna, I just have some questions for you about what's on your list. So what's on your wish list for and from the justices? Well, retirement would be great for some of them. I mean, retirement.

You don't have to disclose it. It's not even shameful. As soon as I retire, don't even resign. Just retire. Move out of the way. Because that's the real thing. It's that they're so out of touch with how people live, with what's happening on college campuses. They're out there taking away people's reproductive rights. They're out there taking away the way people live ordinary lives. They're just out of touch. They're in a different generation. They just need to get off the stage. Yeah.

That's my ask. Well, I think that would be a gift to you and a gift to the court, right? Since they can go be district judges and fulfill their wildest dreams. Yeah, or they can go become billionaires. That's a win-win for everybody. There is a way if what you really crave is a life of luxury, like what you have to do is just leave the court and go, you know, find a way to make – I mean, I don't think it'd be hard –

So, yeah. So if, in fact, it became so difficult for them to actually live in the way that they had become accustomed to living off billionaire friends, it's not impossible that that actually would impel some of them to accelerate retirement plans so that they actually could self-fund such a lifestyle.

in Washington, D.C., and he writes this letter saying, you know, I'm happy to come to give the speech, but I'm a little embarrassed to say I can't afford the train ride to go make the speech. That's a president who literally set up NATO in World War II. It used to be used to do public service not to get wealthy, not to get rich, and you knew that it was a sacrifice. And we've lost some of that in this country. And we've got to get back to that if we're going to have any shot of restoring public trust.

Hear, hear. Yeah, maybe we should end there on that hopeful note about what we should be aspiring to and moving toward. Thank you so much, Representative Kanda, for taking the time to join us. We really appreciate it. Thank you for having me. I enjoyed it.

And before we leave, Strict Scrutiny listeners, we want to give a big shout out to the Michigan State University debate team. We heard from their coach that they are big Strict Scrutiny fans, and we love that for them. So we wanted to congratulate the team on their year so far. Apparently, they've had a winning season, and we wish them all the best for the upcoming spring semester.

Some of us on the podcast were debaters once upon a time, and we know how much hard work goes into being a successful debater. So we just want to tell you we're really proud of you, and we know your coach is really proud of you, and we know Michigan State is really proud of you. So go Spartans. Sorry, Leah. And good luck in the next semester.

A reminder that tomorrow is the last day to get your favorite Crooked items on sale. Everything in the Crooked store is 20% off just through tomorrow, and that includes your favorite strict scrutiny merch. So do yourself a favor, head to crooked.com slash store to shop now.

Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Littman, Melissa Marie, and Kate Shaw. Produced and edited by Melody Rowell. Our associate producer is Ashley Mizuo. Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. If you want to help other people find the show, please rate and review us. It really helps.