Mister chief justice, may it please report. It's an old joke, but when I argue 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.

Hello, and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your host today. I'm Melissa Murray.

I'm Leah Littman.

And I'm Kate Shaw. And we are going to just go right now. No banter. We got the immunity ruling that is honestly terrifying, both with respect to how the court court wrote the opinion in ways that will affect the Trump case in particular, but also more profoundly with respect to how the court's opinion fundamentally reshapes aspects of our constitutional democracy. So with that, obviously, we are talking about the long awaited opinion in Trump versus United States. Let's dive right in.

Not clear why it had to be so long awaited, because if the court was just going to fire off some B's takes that were divorced from law, history, and constitutional principle, you would think that they could do so quickly. You know, along these lines, Justice Sotomayor noted in her dissent, quote, settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.

Indeed it does. And again, for folks who are just maybe tuning in now, a little tiny bit of background, this is the federal election interference case arising out of January 6. Just to put on the table the specific charges against Donald Trump. He was charged with obstructing an official proceeding, conspiring to do the same, conspiring to defraud the United States, and violating a reconstruction era law that prohibits interfering with civil rights. Here, the right to vote. The factual bases for these charges were various aspects of his months long effort to overturn the results of a valid election, including by doing things like assembling fake elector slates and seeking to throw out lawfully cast votes.

Trump, as he is wont to do, argued for the application of a totally novel form of immunity that would shield him from criminal exposure for any official acts taken as president. And this means that if he was acting as president, including doing things like ordering his subordinates to engage in illegal actions, like, for example, assassinating a political rival, he might never face criminal charges for that. And the court mostly endorsed that theory, though it pretended like it was rejecting that argument. But mostly, it's really a big endorsement. So in a six to three opinion written by the chief justice, which split along ideological lines. The court rejected parts of the indictment, adopted a broad notion of immunity that would knock out other parts of the indictment, and definitely ensures that there will be no pre election trial because of the kinds of proceedings it imagines has to take place on remand. And so basically, we're left with democracy. You really endanger girl.

Yeah. The shorter Republican Supreme Court, the TL doctor here, is that they are h o t t o g o for a second Trump administration, with apologies to Chapel Roan for the misappropriation there. But Justice Sotomayor's dissent for the three democratic appointees called the Supreme Court out on the attempted distance that the majority tried to put between themselves and Trump's argument. Justice Sotomayor wrote, quote, finally, in an attempt to put some distance between its official acts immunity and Trump's requested immunity, the majority insists that Trump asserts a far broader immunity than the limited one the majority has recognized. If anything, the opposite is true, end quote. So, so much for that 333 moderate court.

I guess I really appreciated that moment where Sotomayor is calling Roberts out on actual gaslighting because he is giving Trump everything he has asked for and pretending that he isn't. The dissent is really explicit about that. So, okay, so what exactly is the court doing in this case? Let's give a high level description and then unpack a bit further. So the rule the court lays out seems to be as follows. Okay, so there are three different kinds of charges and allegations against Trump, and there are three categories. And each of these categories are entitled to different kinds of immunity. So, first, for any actions, and this is as to Trump or any future president, actions taken within the president's conclusive and preclusive constitutional authority, the president is entitled to absolute immunity from criminal prosecution. So again, certain presidential acts that are taken pursuant to core article two powers, we can talk a little bit more about what that means. Absolutely immune case has to be thrown out at the pass. Category two involve actions taken within the outer perimeter of the president's official duties. And for those kinds of actions, the president is entitled to at least, and this is important at least, presumptive immunity from criminal prosecution.

So at least presumptive immunity. That presumption would have to be rebutted. And maybe the court doesn't rule this out, absolute immunity for all official acts taken by the president. And then third, with respect to purely private or unofficial activity, the president is not entitled to immunity. But by the time the case was in front of the Supreme Court, Trump wasn't even arguing for immunity for private conduct. So ruling against private conduct immunity does not convert this into a partial loss for Trump. He wasn't even asking for it. So those are the three categories that the case lays out. And the majority also limits the kind of evidence that can be used in a case. In addition to directing the district court here to carefully analyze the indictment's remaining allegations to determine whether they too involve conduct for which a president must be immune from prosecution, the court also says the parties and the district court must ensure that sufficient allegations support the indictment's charges without such conduct. And then adds a footnote, saying what the prosecutor may not do is admit testimony or private records of the president or his advisors probing the official act itself.

So things that the court says are off limits, those can't be charged, but they can't even come in as evidence to support the things that remain fair game for prosecution. So this takes off the table. Huge reams of evidence that Jack Smith and his team might be able to introduce to support what few charges might remain in light of this decision.

Even leaving aside its implications for Jack Smith's case, I think all of this is just really striking for the broader question of presidential authority. I just want to sort of maybe make the observation that this sort of three part test recalls the three part test that Justice Jackson, the first Justice Jackson, Robert Jackson, offered in Youngstown, sheet and tube, like that, sort of three tiers of presidential authority. And it's like the murky zone of twilight, where all of the action is like, that's kind of what's happening here. The second category, where it's not private action, it's not obviously constitutional action, but it may be in the outer perimeter. That's where all of the action is going to be. In the Donald Trump case. It's going to be where all of the action is going forward in any question where a president might be subject to criminal liability. The big issue looming in Youngstown was whether a president had gone too far to usurp authority that had been given over to the legislature. That's obviously not the question here, but one of the things the Youngstown court had been really concerned about was this idea of an energetic, nimble president who took from other branches, and in doing so, consolidated enough governmental power to make himself a dictator.

And they were obviously thinking to the very recent past, Hitler and Mussolini. Here, in this opinion, this court is celebrating and indeed endorsing the idea of an energetic, nimble executive. They say this multiple times in the majority opinion. Justice Thomas echoes it in his concurrence. They want a president who's going to do a lot of things. And in the end, the court essentially says if the president does something that the president has constitutional authority to do, that's the end of it. No criminal prosecution. It doesn't matter if the president is abusing the powers of his office for political gain or retribution. Motive doesn't matter. And they say this, quote, in dividing official from unofficial conduct, courts may not inquire into the president's motives, end quote. This is a lot, this is a really huge, sweeping sea change, I think, in the way we think about presidential authority and perhaps even a sea change in the way we think about the president and whether or not executive authority is a threat to other aspects of government.

Yeah. And Melissa, you mentioned that they wanted a nimble and quick president. I think they want a nimble and quick republican president because I'm pretty sure that if Joe Biden declared himself KInG Joe, they would be like, you know, you know, immunity doesn't go that far. But we'll get to the, well, I.

Mean, Joe Biden has the chance to do the funniest thing ever right now.

Many funny things. So I think another indication of how broad the court's second category, where all the action is, as Melissa was saying, is how they apply that standard to the facts of this case. And we'll get to that application in a second. But again, just to pause over the big picture here, it's like 50 years after Richard Nixon said, when the president does it, that means it's not illegal. The Supreme Court decided, you know what, tricky Dick, he had a point. He was onto something.

I mean, you know, it's like literally 50 years ago this month. So it's July of 74 that the court rules against Nixon unanimously. And in September of 74, this just doesn't really come up in the case. And it continues to drive me so insane that it doesn't. But Ford pardons Nixon, and the text of the pardon says, because otherwise he would be susceptible to criminal prosecution. But because he's already had to endure the indignity of resigning the office of president, we're gonna spare the country and pardon him because we need to. Otherwise he'd be prosecuted. And that, of course, echoes what Mitch McConnell said three years ago when voting against convicting Trump in his second impeachment, which was ex presidents can be cruel, criminally prosecuted. So we have this whole body of utterances and understandings and the court just like blows right past them on this vibe based notion that it'd be bad if presidents were chilled in the exercise of the office by the possibility of criminal indictment. So there you have it. Okay. So the court talks about some of the specific allegations in the indictment and says very clearly the prosecution cannot rely on those because they fall within that first category of the president's conclusive and preclusive authority.

So, first, Trump's threatened removal of the attorney general implicates. This is the court speaking here, conclusive and preclusive presidential authority. And now I'm finished with a quote, and I will editorialize. The court is saying that it doesn't matter if the threatened removal was predicated on the government officials support for baseless allegations of voter fraud. They just basically say dismissal of an official like an attorney general or an acting attorney general, something the president alone has the power to do. Where in the Constitution the president has the exclusive power to remove a federal official is a question that would be a hard one on a constitutional law exam, because it's nowhere in the Constitution. But the Supreme Court is very fixated on the kind of importance of presidential removal authority. But that is one example of conduct at issue in the complaint that the court says is categorically off limits cannot be pursued in this case.

And that also means that a future president could remove a special counsel, say, like Jack Smith, and there would be no recourse. So that's chilling. Also chilling. And an obvious implication of the court's decision here is that any communication or action involving the DOJ would allow a president to, say, remove a special counsel, or direct the attorney general to terminate a prosecution, and that all would be considered an official act. So this is sort of the love child of the unitary executive theory. And this idea that the president is a king, I mean, it's the unitary executive monarch principle in real time being developed for us.

And the court also rules that other allegations in the indictment are entitled to a presumption of immunity. So the opinion notes that the indictment alleged that Trump and his co conspirators tried to enlist the vice president and also, you know, pressure the vice president to reject states legitimate electoral votes. And it says Trump is at least presumptively immune from prosecution for such conduct. And, you know, it goes on to say that, like, whenever the president and vice president are discussing their responsibilities, they engage in official conduct. That part is just absolutely bananas, because it's not clear why pressuring states to reject legitimate electoral votes would count as official conduct. But again, no matter, bottom line, so.

Far, this is a perfect way to celebrate Independence Day. July 4. Happy birthday, America.

Yeah, I mean, like, literally marking the occasion when we declared ourselves independent of a king. The Supreme Court is like, well, but actually, you know what?

That king thing, I wish the king in question were not Donald Trump and instead a different ginger, like Prince Harry.

I know this is hard for you because of your royalist instinct.

I'm torn. I do like a good monarchy, but it really depends on a good monarch. Right.

Good King George did say in Hamilton, I'll be back. I'll be back.

Well, here we are. So let's take stock. So SCOTUS definitively strikes some allegations, saying that they can't be the basis for prosecution. It definitely says that other allegations are entitled to a presumption of official immunity such that they can't be the basis for a prosecution. And it doesn't rule in any of the allegations. Instead, it remands the entire indictment back to the district court to go through what remains very carefully and determine whether the actions that are still on the table are entitled to a presumption of immunity and whether the government has rebutted that presumption of immunity. They did cite to the transcript suggests that both sides agree that some of what is alleged in the indictment is, in fact, unofficial conduct. So there is that.

I just want to underscore this last point. Like, the court refuses to rule out the possibility that any of the president's efforts to overturn a valid election might fall within the outer perimeter of the president's official responsibilities for which presidents are entitled to immunity. They're just not sure about that. And when pressed by Justice Sotomayor about their failure to do so, they're like, look, we're trying to decide this case quickly, and it's complicated. You know, basically like, okay, you tried to maybe murder your vice president and do a coup, but did you do so officially and, you know, compare, like.

And if so, exactly.

And, like, compare the like at minimum uncertainty about that question to the opening of Justice Sotomayor's blistering dissent, which says, quote, because our constitution does not shield a former president from answering for criminal and treasonous acts, I dissent not respectfully.

We need to read a lot of excerpts from the sotomayor dissent. Unlike the majority opinion, it is actually one for the ages.

All right, well, let's start there. I'll start. Here's Justice Sotomayor, quote. The majority makes three moves that, in effect, completely insulate presidents from criminal liability. First, the majority creates absolute immunity for the president's exercise of core constitutional powers, powers. This holding is unnecessary on the facts of the indictment, and the majority's attempt to apply it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all official acts, whether described as presumptive or absolute. Under the majority's rule, a president's use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence concerning acts for which the president is immune can play no role in any criminal prosecution against him. That holding, which will prevent the government from using a president's official acts to prove knowledge or intent in prosecuting private offenses is nonsensical, end quote.

And I feel like she's talking simultaneously about January 6 and these allegations, but also, and in some ways more urgently about what this case's prospective effect will be on both a potential second Trump term and also the presidency and the country more broadly.

Yes.

So let's turn to that question, like, what does this opinion do with respect to the presidency and our democracy writ large, including the possibility of a second Trump term? Because of the kind of immunity the court has embraced and the kind of immunity it might embrace? Still, you know, again, it wasn't ruling out absolute immunity. They are placing the president above the law. They are saying as long as the president does something within the president's official duties, it doesn't matter why the president does it. If the president is doing so for corrupt or personal or vindictive or vengeful ends, no criminal liability is possible. And again, just hypothetically, imagine that a president orders, let's say, the military to break into a hotel to steal an opposing political party's records, and then threatens to fire his attorney general if the attorney general looks into it or the attorney general doesn't grant immunity for the break in.

I thought we were not supposed to engage in far fetched hypotheticals, Leah.

Exactly. Too far fetched. Obviously, I'm taking this afield, but this is the reality that they are creating.

Somewhere Richard Nixon is turning over in his grave, being like, this is the court I need.

Exactly. Exactly.

Well, he's being. They are vindicating his. When the president does it, it's not illegal. It just comes half a century too late to actually benefit him. But Trump is here to reap the benefits. And all of that, I think, is what prompts another passage that we wanted to read from Justice Sotomayor's dissent. And this is joined by Justices Kagan and Jackson. And Jackson actually also writes separately for herself. So here's the quote. Looking beyond the fate of this particular prosecution, the long term consequences of today's decision are stark. The court effectively creates a law free zone around the president, upsetting the status quo that has existed since the founding.

1 second. Kate, do you think that law free zone is an Easter egg for us? I think it might be. I think we have said that.

I wish you would say that the court is operating on vibes here. She's kind of saying that.

No, but we also say it's a law free zone. Leah has often said, talked about vibes and then said, it's a law free zone. I think this. All right, we'll go with yes.

Okay.

All right. This is also actually a callback to Justice Kagan's descent in Burnovich, where she also accused the majority of inhabiting a law free zone.

That's true.

Which also might have been, I think, an Easter egg for us.

Yes. So this is like Easter egg squared, which is way better than Huber squared, if you have to choose. If you have to choose. So this new official acts immunity, just to continue quote, lies about, like, a loaded weapon, which is a reference to Justice Jackson's descent from Korematsu, giving this power to the president, essentially to intern individuals because, you know, of the invocation of the exigencies of wartime and sort of the need to respond. That's a loaded weapon, according to Jackson Korematsu. And she reprises that here. So she says, it's a loaded weapon for any president that wishes to place his own interests, his own political survival, or his own financial gain above the interests of the nation. The president of the United States is the most powerful person in the country and possibly the world when he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution. And she gives some of these examples. Orders the Navy SEAL team six to assassinate a political rival. Immune organizes a political coup to hold onto power. Immune takes a bribe in exchange for a pardon. Immune.

Immune, immune.

So I had to suffer through some people suggesting there's no way this opinion would authorize a SEAL team six assassination or a military coup. But I think the point is it could. Right. It is, at a minimum, unclear about this, and there are points that suggest it would, you know, again, the majority says the president's orders to the Department of Justice are absolutely immune, even though the president was allegedly doing this to subvert an election for illegitimate ends. And on the same logic, a court could say the president's orders to the military are absolutely immune, even though the president is doing this for personal gain, political vengeance or whatever. And that is the kind of terrifying dystopia that this opinion creates. And just to kind of take stock of where the Supreme Court has placed us, the president can maybe try to overturn an election if they do so officially, but they cannot cancel student debt, cannot adopt clean energy transition, cannot adopt a vaccination requirement in the middle of a pandemic.

Just to hammer home how hypocritical and unhinged all of this is, let's play a clip from Brett Kavanaugh asking a question at oral argument. We'll let you guess which oral argument this was, and if you can't guess, we'll tell you the answer on the other side.

Last question, which is there was talk about democratically elected political branches. But I just want to give, get your agreement on something that I think you'll agree on, which it's the role of the judiciary, historically, under the constitution, to police the line between the legislature and the executive, to make sure that the executive is not operating as a king, not operating outside the bounds of the authority granted to them by the legislature. You agree that's a proper judicial role?

I would assume, if you guess that this came up in the case where some guy is arguing that presidents can assassinate their political rivals and potentially not be subject to prosecution, you would be wrong. This question arose as the court considered whether courts should defer to administrative agencies about technical regulatory matters. That is overruling Chevron, that was in relentless, versus Department of Commerce.

They are so concerned about kings. When it's agencies regulating to protect people's air, the air we breathe, that is the mark of a true monarch. And that's what we should fear.

Chef's kiss. No irony detected. Makes total sense. The majesty of the law, ladies and gentlemen.

Majesty, indeed.

Can I make another relentless point? We drew some relentless and Dobbs parallels on our emergency episode about relentless, which is like big overruling and kind of denigration of the earlier courts here. I think there's a real parallel between this Trump case and Dobbs in that sotomayor is, I think, entirely correct to say Seal team six, like that's official, that is protected under this court's test, and the court does this kind of hand waving about this being kind of a partial win and the president not being a king, et cetera, et cetera, which I think is about as credible as Alito's insistence in Dobbs that nothing but abortion is imperiled by the court's opinion. It is exactly that credible, and you should take it exactly as seriously.

Well, I don't know what else to say. I think Justice Sotomayor said it best when she ended her dissent with the following words, quote, never in the history of our republic has a president had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former presidents will be cloaked in such immunity if the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop with fear for our democracy. I dissent. End quote.

That was powerful. Yeah.

Now we know why she saved the omission of respectfully for a later date. There were a couple of times this term where we're like, Sonia, respectfully doesn't really need to happen here. But she's like, nope, nope. There's more. I'm going back to my office to cry now, and I'll take the respectfully out then.

Remember, Kagan, in her rude show, gerrymandering, dissent says, with sorrow I descend. And this, I think, with fear, just ratchets that up like a significant additional level.

Can we talk about that? Because there's a line in the chief justice's majority opinion where he basically calls out the three dissenters as, like, fear mongering. Harpies.

Yes.

I mean, he actually uses the term fear mongering.

Yes.

Although not harpies.

He doesn't call them harpies. That was me.

Fair.

Fair. But if he could and still be institutionally minded, I think he would. But the idea that this is fear mongering and that these three women are just hyperbolic crazy lady parts, so maddening, such gaslighting. I mean, this is a really massive sea change in the way we think about executive authority, and I wish they just call it what it is.

We had some other things we wanted to flag about the majority opinion that were also terrifying that, I don't know, we have explicitly pointed to just yet. So, one to me was in recounting what the president's exclusive and preclusive authority was that entitled presidents to absolute immunity, no matter how they were using their powers. The majority opinion rights, investigative and prosecutorial decision making is the special province of the executive branch. And it continues to say that the indictments, allegations, that the requested investigations were shams doesn't remove their immunity. So, again, just to draw this out, this would mean that a president would be immune for instituting and ordering attorney general to institute baseless charges done for political retaliation or personal vendettas. And again, this has to be read alongside the fact that Donald Trump is already threatening to prosecute political rivals and seek retribution.

It.

Yep.

And to underscore something we have said earlier, if the president were to initiate these kinds of actions, there would be no inquiry into the motive behind it. It wouldn't matter if it was for retribution. The fact that it is undertaken and it's constitutionally authorized for the president would make it okay. And even if it wasn't, if it was in that outer perimeter, it is presumptively immune from criminal liability until the government can rebut that presumption.

Yeah. One other thing I wanted to flag from the majority opinion, which is sort of a small citation, but I thought quite revealing. The court is largely reasoning from this kind of free floating principle of the importance of, like, presidential non constraint, including, you know, constraint of the law. And there's a quote to the 2016 McDonnell opinion that we talked about when we talked about the Snyder gratuities corruption case. Right. The court is on this tear of striking down anti corruption statutes. McDonnell is an important one in that line. And the court quotes that case to say, the hesitation to execute the duties of his office fearlessly and fairly, that might result when a president is making decisions under a pall of potential prosecution. So this kind of fear that public officials will be chilled in ways that are problematic by the threat of prosecution hangs over the anti corruption cases and is how the court has narrowed those statutes. And we see it on full display in this constitutional case. And I think very much shores up our intuition that these statutory cases about the right to do corruption are at some point going to become constitutional cases about the privilege to engage in corruption.

And this fundamental right makes that corrupt.

Yeah.

So, absolutely not in the constitution. Penumbras. Penumbras. Of these courts. The courts decisions. Let's talk about some of the separate writings. They've been glossed over, I think, in mainstream media coverage, but I think some of them are really quite striking. And I wanted to start with Justice Thomas's insane concurrence. And now you're looking confused. You're like, which insane concurrence, Melissa? Well, the one in this case, like, not some of the others from this term, but just this case. So let's focus it. No one joined this concurrence that Justice Thomas filed, although Judge Eileen Cannon probably would like to give her tab here. And join future Justice Aileen Canon. Future Justice Aileen Cannon would like to join. Per usual, Justice Thomas concurred separately to underscore his agreement with the majority, but also his desire to go further and this time challenge the constitutionality of the appointment of the special counsel. This is the very same issue that Judge Cannon recently had a hearing on in her fort Pierce, Florida courtroom. It is also an issue ostensibly settled by earlier precedents, including a very recent DC circuit decision that the court denied cert on. But while we're reconsidering this whole democracy versus monarchy versus autocracy thing, it seems that Justice Thomas thinks it's an ideal time to just question everything, including whether it is constitutional to appoint a special counsel.

Notably, he has no problems with the removal of the special counsel. That is clearly within the president's scope of authority.

I think we've already mentioned this, but Barrett concurs and withholds her join from the part of the majority opinion that talks about how the prosecution cannot use this evidence that would fall into the first category, even to prove up charges that might be permissible under the second category, essentially saying, like, yes, you can introduce testimony or records even if they pertain to official and exclusive presidential duties, and it's a 6th vote, so it actually doesn't matter. But it does suggest that she's less enthusiastic about these profound limitations on what the prosecution can do in at least the second category. And she is at pains to underscore that she really, really doesn't think the president is a king, even though she joins most of an opinion saying pretty clearly that the president is a kingdom. So, I guess. Thank you, Amy.

Was that a Taylor reference?

It was, yeah.

Thank you. So, Justice Jackson also had a separate writing. You know, she joined Justice Sotomayor's dissent in full, but she elaborated in her separate dissent about how the majority's approach was inconsistent with the kind of theoretical model of accountability underpinning the constitution. And she also elaborated on the dangers to democracy from the court to doing so. So we solicited questions from listeners in advance of the episode, and here's a sampling. I'm not sure we have answers. How long do we have left as a society? Was one. What the fuck is another? What is the point? Relatable. Hypothetically, how easy. Hypothetically, how easy would it be to emigrate to, say, Finland? And why in all caps, we're not.

Going to venture answers to any of.

These above my pay grade?

Well, the Finland point is interesting. Lots of people talking about where they can flee to just to note that authoritarianism, far right politics, is rising all over Europe. So not sure that there are better places to go. We might just have to stay here and try and stave off the coming onslaught of the Anschluss. But, yeah.

These are dark times, you guys. But fear not.

Yeah, there's more.

We don't have. There is more.

There's more. It wasn't the only bad decision that we got today from the court, and we really don't want to bury this one, because it is actually hugely significant, even though its significance was largely dwarfed by the magnitude of the court's decision in Trump versus United States. So let's talk about corner post versus board of governors of the Federal Reserve.

And this case, I think, paired with the relentless case, also known as loper Bright, I'll use the two interchangeably, which is the overturning of Chevron and Jarkozy, the SEC adjudication case, and the EPA case. I mean, I'm not sure there's ever been a worse term for administrative agencies and the future of government as we know it, and this case is just kind of the nail in the coffin of this term. So let's talk briefly about this case. So this case involves the Administrative Procedure act, which is also a central player in the loper bright case, the case that overturned Chevron. And specifically at issue here is whether a plaintiff's Administrative Procedure act claim first accrues under 28 USC section 2401, when an agency issues a rule, regardless of whether that rule injures the plaintiff on that date, or rather when the rule first causes a plaintiff to suffer legal wrong or be adversely affected or aggrieved. So sorry, that sounded really technical, but it's super important. And essentially, the question is how long you have to challenge a rule. Right? Whether the time that a party has to challenge a rule starts when the rule goes into effect, or whether the time to challenge a rule starts when you're injured by it.

And if it's the latter, that massively expands the amount of time that essentially anybody has to challenge an agency rule if they don't like it, even if the rule has been on the books for years or decades. And maybe the plaintiffs are a brand new entity, maybe even formed to challenge a longstanding regulation. But what the plaintiffs were asking for was a massive shift that would allow such entities to challenge all of these rules.

So this was a six to three majority opinion authored by Justice Barrett. There was a dissent from Justice Jackson in which the other two democratic appointees joined, but essentially, the court here held that the cause of action accrues when an entity experiences an injury, not when the regulation is enacted. So what does that mean in plain English? Well, it doesn't matter how old or long standing a rule or regulation is. If there is some new entity or individual that experiences a fresh injury as a result of that rule or regulation, they can challenge the rule or regulation even if it is 30, 40, 50 years old. As long as the injury is fresh, as long as the injury is within the statute of limitations, it's all fine. And that's really enormous, given the fact that the loper bright case opens the door to new challenges to federal rules and regulation. This amps it up like a red bull for loper bright.

Yeah. And from Justice Jackson's dissent, she writes, quote, the court's baseless conclusion means there is effectively no longer any limitations period for lawsuits that challenge agency regulations on their face. Allowing every new commercial entity to bring fresh facial challenges to long existing regulations is profoundly destabilizing for both government and businesses. It also allows well heeled litigants to game the system by creating new entities or finding new plaintiffs whenever they blow past the statutory deadline, end quote.

And I want to read one more passage, this one from the end of her dissent. She says, quote, at the end of a momentous term, this much is clear. Wait, pause. Editorialize. This case came out before the Trump immunity case on Friday morning. And when I read that line, this momentous term, I was like, oh, shit, I know how immunity is going down. And 20 minutes later, that was clear. But it was 20 minutes because she actually read this dissent from the bench. She was so incensed, and I think correctly by this ruling, even though it's one of the lower profile cases of the term, it's extraordinarily important. So she continues. The tsunami of lawsuits against agencies that the court's holdings in this case and loper bright have authorized has the potential to devastate the functioning of the federal government even more. To the present point, that result simply cannot be what Congress intended when it enacted legislation that stood up and funded federal agencies and vested them with authority to set the ground rules for the individuals and entities that participate in our economy and our society. It is utterly inconceivable that section 2401 statute of limitations was meant to permit fresh attacks on settled regulations from all newcomers forever.

Yet that is what the majority holds today.

So I just want to kind of try to make the implications concrete, because this statute of limitations that was at issue in corner post was the same statute of limitations at issue in the medication abortion case coming out of the Fifth Circuitous. So imagine, for example, some entirely new entity says, look, I didn't exist when the FDA approved mifepristone, but hey, I just incorporated an Amarillo yesterday.

Not Amarillo.

I know, I know. I experienced a new injury. And this decision potentially allows them to bring that challenge. It is just a field day and open season on agencies, because again, the question is going to be, why not create a new entity that experiences a new injury and create that new entity in a jurisdiction where you have a friendly judge? Despite that doomsday proposition, we do want to note that some agencies have agency specific limitations periods. So, for example, a fair number of environmental statutes don't use this kind of general default statute of limitations. They have their own. But for example, the CFPB, the Consumer Financial Protection Bureau, they do not have their own statute of limitations or accrual period. So this is going to be open season and field day on consumer finance regulations.

Could that be the point?

I kind of fell out a little when you mentioned a friendly judge, Leah, because all I could think about is Kaz Marek, the friendly judge. Like Casper the friendly ghost.

That's a good one.

That's a t shirt. I think he just likes put his face on it. Anyway, corner posts should be considered in tandem with the rest of the court's decisions this term on the administration state. Because it's not just that the court is opening up more regulations to challenges, it's that the court has actually made it easier for those challenging the regulations to be successful when they bring those challenges. The court has constructed a new legal landscape that's more hospitable to agency challenges. At the same time that it's renewing, restarting, allowing more challenges to be brought. So you can see all of this sort of percolating from Ohio versus EPA, loper bright, the major questions doctrine cases from last term. So it is full on open season on the administrative state. I will note that Project 2025 makes dismantling the administrative state a core aspect of the hope for imagined second Trump presidency. Well, it seems like it's going to get a massive assist from this court.

Yeah. And I want to read another. My whole vibe right now is just channeling KBJ dissent. So I'm gonna read it seems right. Short excerpt, relatable content from her dissent, because she's also like, don't focus on these opinions in isolation. Look at them together, understand what the court has done here. And so she says, quote, seeking to minimize the fully foreseeable and potentially devastating impact of its ruling. The majority maintains that there is nothing to see here because not every lawsuit brought by a new industry upstart will win. And at any rate, many agency regulations are already subject to challenge. But this myopic rationalization overlooks other significant changes that this court has wrought this term with respect to the longstanding rules governing review of agency actions. The discerning reader will know the court has handed down other decisions this term that likewise invite and enable a wave of regulatory challenges, decisions that carry with them the possibility that well established agency rules will be upended in ways that were previously unimaginable. I could go on, but I will stop there.

Yeah. So this decision is, again, a really big deal, again, potentially alongside the other administrative law cases. And Justice Barrett, when announcing this opinion, since she is the author, and so she read it from the bench, began the announcement with, like, a joke about how this wasn't the case people were here to hear. It's like, so funny and cute, like, once again, thank you, Amy. Just not what we need it.

Well, she was just, like, doing exactly in the announcement what she did in the opinion, which is to try to minimize it. And it's bullshit. It's like, this is a huge deal.

Yeah.

All right, so finally, we got the joint opinion in another big case from the term moody versus net choice and net choice versus Paxton. This is a challenge or two consolidated challenges to two different state laws, one in Texas, the other in Florida, that seek in different ways to regulate how large social media companies like Facebook and X, formerly Twitter, can control content posted on their sites. So these two states enacted their respective laws in 2021 in response to their belief that the companies were censoring users, particularly those with conservative views. The laws prohibited censoring certain users in one case and then censoring certain content in the other. The companies countered that these laws violated their First Amendment rights to control what speech appears on their platforms. And so they mounted a constitutional challenge.

Against both side note about these laws. The New York Times had some reporting where it spoke with the legislators in both Texas and Florida who passed these laws. And basically, they either didn't know about the constitution or didn't really care, weren't really thinking about whether any of this violated the First Amendment, but they wanted to be very responsive to their conservative constituents in their various districts to prove that they were tamping down on these social media companies that were censoring conservative. This was interesting. In any event, in May 2022, a divided Supreme Court put the Texas law that had been challenged on hold while the challenges to the law continued in the lower courts. The US Court of Appeals for the Fifth Circuit, however, rejected those challenges and upheld the law, while the US Court of Appeals for the 11th Circuit barred the state from enforcing most of the law. The Supreme Court agreed to weigh in, and it heard oral argument in the consolidation appeal in February. And now the court has decided to vacate both of the opinions below.

That's right. So the court vacated both opinions and sent them both back to the courts of appeals, saying that the courts of appeals did not apply the appropriate facial challenge standard. And as a reminder, a facial challenge argues the law is invalid on its face, you know, in its entirety, can't be enforced against anyone. That is different than an as applied challenge, which argues the law can't be applied to a particular individual or group of individuals.

So although the Supreme Court sends these cases back to the courts of appeals, the district court injunctions in these cases against both the Texas and Florida laws remain in place. This opinion was ostensibly unanimous. There were several separate opinions, but Justice Kagan had the opinion for a majority of justices, and girl used the Penwell to take some shots at the Fifth Circuitous. So I'll just read a few highlights. Quote, there has been enough litigation already to know that the Fifth Circuit, if it stayed the course, would get wrong at least one significant input into the facial analysis, end quote. It's like, look, we're not even going to send this back down to them to allow them to have a first crack. Like, we know they're going to fuck it up. So here's some guidance.

Again, we haven't done our term recap yet, but I think, I, I think bitch slapping the Fifth Circuit is a big theme this term.

And that wasn't all because Justice Kagan also wrote, quote, it is necessary to say more about how the First Amendment relates to the law's content moderation provisions to ensure that the facial analysis proceeds on the right path in the courts below. That need is especially stark for the Fifth Circuit, end quote. Yes, girl, you know, she, like, goes on to explain, like, other ways the Fifth Circuit was wrong, you know, but again, just like, she's like, you want to see a dead body? And this, some of that is dicta.

Maybe, whatever, but she has a court for that. Like, she has. They're separate writings, but that is an opinion of the Supreme Court. And that, at least, is one satisfying moment today.

Like, stupidity truly offends Justice Kagan, and she just can't take it any longer.

Seriously, though, when the best thing that happened to us today was that. But this whole shitty case got remanded back to the Fifth Circuit with some instruction to stop being so stupid. The bar is actually in hell. It's low.

It's very low. She does in terms of the guidance that she gives to the obviously desperately in need of guidance fifth Circuit, she says, and this seems important, that content moderation is expressive activity. She definitely pretty strongly signals that several platforms have good challenges, at least as applied. And if that is right, once applied, this view would seriously limit the application of the laws. And so that, I think is good news for the platforms and bad news for laws like these going forward. And I think it does. You know, when we had Evelyn Duak on the, I can't remember if it was a preview or a recap. Evelyn suggested that these are kind of tough questions and you actually a big win for either the states or actually the platforms might be problematic and you want to bring some nuance to this area. Now, no, obviously confidence that Fifth Circuit is going to do that, but the court here having some restraint and humility in terms of actually like issuing a big broad ruling here was probably a good thing. Course we'd love to see this energy in other domains, but keeps not happening. All right, so until the term recap.

Until the term recap, everyone.

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Strict scrutiny is a crooked media production hosted and executive produced by me, Leah Litman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Our interns this summer are Hannah Soroff and Tess O'Donohue. Audio support from Kyle Seglin and Charlotte Landis Music by Eddie Cooper production support from Madeline Haringer and Ari Schwartz Matt DeGrote is our head of production, and thanks to our digital team, Phoebe Bradford and Joe Matosky. Subscribe to Strict scrutiny on YouTube to catch full episodes, find us at YouTube dot comtrickscrutinypodcast. If you haven't already, be sure to subscribe to strict scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps. And make sure to make your review official.