Strict Scrutiny is a podcast about the United States Supreme Court and the legal culture that surrounds it.
Hosted by three badass constitutional law professors-- Leah Litman, Kate Shaw, and Melissa Murray-- Strict Scrutiny provides in-depth, accessible, and irreverent analysis of the Supreme Court and its cases, culture, and personalities. Each week, Leah, Kate, and Melissa break down the latest headlines and biggest legal questions facing our country, emphasizing what it all means for our daily lives.
Whether you’re a lawyer or law student, or you’re just here for the messy legal drama, Strict Scrutiny has you covered. New episodes out every Monday… plus bonuses whenever SCOTUS takes away another one of our rights.
Defendant, in this case, Fisher, as well as some lower court judges, had also offered different theories about why this law, 1512c2, might not apply to the defendant, mister Fisher, specifically, or some smaller subset of January 6th defendants, because they did not actually obstruct any proceedings since Fischer concedes that he was at the Capitol, but not at the time protesters were attempting to disrupt the certification of the electoral college votes, but instead after congress had already recessed. So when we previewed the case, we weren't sure whether the Supreme Court was going to go big in this case and blow up a bunch of January 6 cases and, potentially, 2 of the charges against Donald Trump arising out of January 6th. Because the other arguments, some of which were fairly particular to the defendant and others of which might not rule out the applicability of this law to January 6 defendants writ large, gave the court ways to go small and say something about mister Fisher's case in particular, again, who entered the Capitol after congress had already recessed. As Leah suggested, we did not have really high hopes for how this argument was going to go. And I have to say, I think it was even more alarming than even we expected. So at least 3 of the justices, let's call them the 3 horsemen of the apocalypse, Clarence Thomas, Samuel Alito, Neil Gorsuch, all seem to be drawn to the view that the law just doesn't apply to January 6th, full stop, because the certification of presidential votes doesn't count as an official proceeding or because the challenged conduct wasn't the kind of evidence tampering that the statute on their view was meant to cover. Their view of all of this would undo many of the charges against many of the rank and file January 6th defendants. Though we should say that many January 6th defendants have been charged for other crimes as well. So, like, not everyone is off the hook entirely. But it does seem like if their reading of the statute prevails, it would wipe out a lot of the charges against many of these protesters. And some notes, I just wanna make really clear here that in this statutory interpretation exercise
Being bad decisions. Really bad decisions. Like, that's the Jaegermeister of decisions. Those are coming. That's true. It is now Get rid of. Becoming that time. But while they're in the midst of starting to issue their bad decisions or their next round of bad decisions, they are also gonna be hearing arguments in a number of really big cases. So this sitting for 2 weeks is jam packed with enormous cases, both the 1st 2nd week. And so in order just to give you a general sense of what is on deck We're gonna talk about 2 big cases the court will hear during the 1st week of the 2 week sitting. And then we'll mention several other big cases the court will hear in the 2nd week. That means we won't be as detailed here as we will be in the recap episodes when we get to focus on fewer cases, but go deeper. But we think that just giving you a broad sort of sweep of the cases the court will hear in this 2 week sitting is important because it drives home the importance of the court, right, both how powerful it has become, and the stakes of controlling the court, which really turns on the outcome of a November election. So we're gonna start with a couple of cases being argued in the 1st week of the sitting. And the first case we're gonna talk about is Fisher versus United States, a case that has implications for some of the federal prosecutions arising out of January The issue in Fisher is whether the federal law under which most of the January 6 defendants were convicted that is Section 1512 C2 prohibits interference with congressional processes that don't involve investigations or the production of evidence. The statute 1512 C2 as a part of the Sarbanes Oxley Act, which was itself, a response to the 2001 Enron scandal, and the widespread fraud that had occurred at Enron and at other companies regarding accounting practices and public reporting of corporate information. Here's the text of the statutory provision at issue here just so you have a sense of how these issues arise. Under 18 USC Section 1512 C, Whoever corruptly one alters, destroys, mutilates, or conceals a record document, or other objects, with the intent to impair the object's integrity or availability for use in an official proceeding
Did the Florida legislature effectively undid the people's choice to reinstate and restore voting rights for people people with felony And then the Florida legislature with the Florida Supreme Court was, like, actually, never mind. Not so much, and let them get away with that. So that would not be an unprecedented move, and yet still it is so important to make clear the stakes of abortion access for Florida, this ballot initiative for the American South, and yet it is also difficult to understate the problems that the Florida Supreme Court could present. But I do think that the restoration initiative and the mobilization and kinda grassroots organizing around getting that done was incredible and provides a real template that makes me hopeful about now that this initial gatekeeping is out of the way, sort of, it is now all about actually just getting the people to understand and to turn out. And, obviously, that's important in terms of what happens to the, you know, Florida constitution, but also about what happens, you know, like, up and down ballot. All of a sudden, potentially, Florida becomes a much more competitive presidential state than it has been in recent cycles. So let's pivot to some discussion that we wanted to note that have really ramped up in recent days and really about the past week or so about the Supreme Court in the upcoming election. And here, we're talking specifically about one facet of those conversations, which has increasingly focused on whether justice Sonia Sotomayor should retire from the Supreme Court now in order to ensure that she can be replaced by, of course, president Joe Biden while Democrats control the Senate. And I think what has really spurred this recent round of conversation has been a much talked about piece that Mehdi Hasan wrote in The Guardian calling for her retirement, and then both before and especially since some of the more online left has really been beating this drum as well. And so we wanna acknowledge those discussions, and we also wanna explain why we are not focusing on that particular
To support it because it was cooked up in a meth lab of conservative grievance, wondered, what can I get out of this? And so he floated can the law do for me, Neil? Yes. Well, he had an idea, which is that he floated possibly using this case as a way to end certain kinds of environmental standing and establishment clause standing. So if and when the court rules here that the anti abortion doctors don't have standing, he wants to find a silver lining, which is keeping the courthouse doors slammed shut to environmental plaintiffs and plaintiffs complaining that they are being injured when the government embraces and adopts religion. And maybe that's not their religion because they're members of minority religions or maybe they're members of no religious faith at all, And they don't wanna have, you know, typically majoritarian Christian faith expressions by government shoved down their throats. And the court has been more permissive in cases like that about finding standing. But I think Gorsuch would like very much to see those openings closed. And if he can use this case to do that, all the better. I've heard and listened to your argument and read the briefs, and I think I understand establishment clause or, some injuries about, I access a a park, and I like to look at it in a certain way. And those kinds of injuries that the court has sometimes recognized and other times cast out on. That's what we call lemonade out of lemons, bitches. Neil Gorsuch doing his very best, Beyonce, without a cowboy hat, without a white horse, without an American flag, without actually any of the swagger that the queen would bring to this, just his own basic bitchness. The third point we wanted to end on with regard to standing is this one. If it's so obvious that there's no standing in this case, and it seemed pretty obvious from the oral argument that standing was pretty tenuous, Why did the court take this case up rather than summarily reversing it? Like, really good question. So
Up level line messaging coming out of this case everywhere seems to be, they are not taking away your abortion pills. And it's true. The federal government seems like it's going to win this case. The court is going to say this particular challenge in this particular case involving medication abortion can't go anywhere. But note, this case could come back with a a vengeance because judge Kazmierich has already said that some Republican led states can intervene in the case to themselves challenge medication abortion. So who knows whether the case will come back in a year with those plaintiffs. And a year from now, depending on how the November election works, and a year from now, depending on however the November election goes, the justices might be much less concerned about the political blowback from a decision allowing the challenge to proceed, maybe even ruling against the FDA. So I think that again, before now, putting even aside fetal personhood and Comstock, even this case, this could be an interim ruling that we could well see come out differently in the very near term. Almost like the voting rights victory we saw in Allen versus Milligan that was preceded by actually a major voting rights loss that shaped the election, the midterm election in 2022. But I digress because I don't wanna continue beating that dead horse, although it's not as dead as I would like. Anyway, so I'll just say here that it seems like the justices are deferring a lot of their firepower for after the election, And Republican candidates and supporters are down for it because I think they would actually like to keep this whole Comstock curious issue under wraps so that most of us in the electorate won't understand that one of the biggest issues in the upcoming election isn't whether or not there's going to be a Republican Congress that can pass a nationwide ban, but, rather, whether they can sneak in a Republican president with a new attorney general who is ready and prepared to revive this
