The Shadow Docket Just Won’t Quit

Strict scrutiny is brought to you by Americans United for Separation of Church and State.

You don't destroy 250 years of secular democracy without gutting precedent, shattering norms, and dropping a few billion.

The same people and groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and lives.

Church-state separation is the bulwark blocking their agenda.

One of the last bastions of church-state separation is our public school system.

So they're pushing vouchers everywhere.

They're arguing for religious public schools.

Yes, you heard that right, religious public schools.

At the Supreme Court, in a case we've talked about on the pod, that the court narrowly avoided deciding, but will surely find an opportunity to do so in the future.

If you're listening to us, you're seeing the writing on the wall.

We can, we must, fight back.

Join Americans United for separation of church and state and their growing movement, because church-state separation protects us all.

Learn more and get involved at au.org/slash crooked.

Mr.

Chief Justice, please report.

It's an old joke, but when an arguing man argues against two beautiful ladies like this, they're going to have the last word.

She spoke not elegantly, but with unmistakable authority.

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 are your hosts for this first segment today.

I'm Kate Shaw.

I'm Melissa Murray.

And I'm Leah Littman, which means the band is back together.

Indeed.

It's so exciting.

We've literally been wilding out for about 10 minutes.

But now that we're part of the show, we are going to talk legal news because the Fifth Circuit is back on its hustle.

And we also have some shitposting to talk about, some from the Supreme Court and some from the White House, among other things.

After that, you will hear me briefly chat with Ellie Savitt, candidate for Attorney General of Michigan, about the threats to Obergefell v.

Hodges and marriage equality.

You'll then hear Kate talk with her colleague, Serena Meieri, about Serena's recent book, Marital Privilege, about fights over the institution of marriage and the relationship between marriage and inequality in American law.

But first, the news.

We are going to start with the latest shit posting on the shadow docket, by which I mean the Supreme Court's order and many opinions in the NIH National Institute of Health case.

So we briefly highlighted this then-pending application in last week's episode, but it concerns a challenge to the Trump administration's broad and sweeping terminations of National Institutes of Health grants around something like $800 million worth of them because the administration maintained the grants didn't conform to the administration's priorities, which include ending DEI.

That's right.

The administration basically decided to end a lot of critically important medical research in their war on woke.

I would briefly like to note how fucking dumb and consequential this is.

It's like, you know why certain research grants talk about sex or gender?

Because guess what?

Things like polycystic ovaries and endometriosis primarily affect women like these guys are obsessed with the biological differences between men and women when it comes to attacking trans people and yet they won't allow science to you know consider the implications of biology sex gender and whatnot brief personal anecdote i have a fuck ton of metal in my elbow because of the bike accident i reference endlessly there have been studies about how women with certain body compositions are a particular risk of needing to get that metal out and research about how initial operations can be performed to reduce those risks.

I guess those were all bad because DEI, because ending DEI means more women suffering, more racial minorities suffering, given the appalling racial disparities and health outcomes in this country, it's just awful.

I don't think it's inadvertent that the end of DEI and racially influenced or gender-influenced medical studies would have deleterious consequences for women or minorities.

I think that's kind of the fucking point.

Yeah.

Anyway, in this case, several grant recipients.

Theaters and imbeciles.

Is that the new DEI?

Yes.

Yes.

Yes.

Okay.

In any event, in this case, several grant recipients filed a challenge alleging that the administration's termination of their grants and the basis on which the administration decided to terminate those grants was illegal.

And the Supreme Court decided to wade in and settle everything by issuing a wild, confusing split decision that split five to four in not one but two different ways on not one but two different issues.

First, the court, by a five to four vote, stayed the district court's decision to the extent it required the government to restore wrongfully withheld funds.

That is to say, these grant recipients cannot get their money, even though it seems that a majority of the court thinks that the administration's withholding or cancellation of the grants is actually illegal.

So make that make sense.

To get their money, which they are apparently likely entitled to, grant recipients have to challenge individually their grant terminations or their freezes of those grants in the court of federal claims.

And I just want to call your attention to some interesting commonalities.

Do you remember, listeners, when we were worried that the court's decision requiring migrants to challenge their deportations as habeas petitions would then require each individual migrant to bring an individual claim before the court rather than amassing them all in collective litigation.

I think that's the same vibe here.

Let's make all of this individual at a time when we've limited the number of lawyers available to challenge the administration and we just continue to flood the courts with individual claims.

That's the best way for these people to get relief.

Right?

For sure.

Again, make it make sense.

But okay, so Melissa just described the first 5-4 majority really about where these kinds of claims and how these kinds of claims have to be brought.

But a different 5-4 majority of the court rejected the government stay application to the extent it sought to pause the district court's ruling that had said the basis on which the administration was terminating the grants was illegal.

To translate that, the court left in place the ruling invalidating the policy of canceling the medical research grants because the administration has decided they are too woke.

So you've got to go someplace else.

But when you get there on the substantive legal claims, a majority of us, that is the court, thinks you are likely to prevail.

Yeah, again, just to underscore the upshot of this ruling, grant recipients, people whose funds are being wrongfully withheld, have to file two separate challenges in two separate places in order to prevail, to get their money back.

They go to the court of federal claims to get a court to enjoin the policy on which the administration is illegally withholding grants.

They have to go to federal district court.

So the five to four breakdowns in the case were as follows.

Thomas, Alito, Gorsuch, Kavanaugh, and Barrett said that the grant recipients had to go to the Court of Federal Claims to get their money back.

But the chief Justices Sotomayor, Kagan, Barrett, and Jackson, left in place the district court ruling to the extent that it invalidated and enjoined the funding cancellation policy/slash memo.

So Justice Barrett was the justice who switched sides and voted in favor of this claim-splitting regime.

Few hot takes on this mess.

The court's irreparable injury analysis is, in a word, nuts.

This is why I partially called this order a shitpost.

So the court, in explaining why they were granting the government stay as to the part of the decision that, you know, allowed the grant recipients to get their money back, said that the government faced a chance of irreparable injury because if the government is forced to pay the grants and it turns out the government could have lawfully withheld the grants, the government might not be able to get the money back, which is a deeply questionable conclusion given that the government has a variety of tools to recoup wrongfully paid out funds.

But the court's analysis also entirely ignored the irreparable harm to funding recipients who are delayed in receiving funds to which they're entitled.

As Kate said, we're talking $800 million in federal grants here.

You know, with that amount of money at stake, labs might not be able to stay open.

Employees might not be able to be paid without that money.

They are going to have to fire or let people go.

And you can't suddenly make that up if the money gets paid out.

months or years later.

The decision also exemplifies, kind of broadly speaking, some of the worst pathologies of the court's use of the shadow docket.

So the court here insists that it had basically resolved this entire matter in its stay order in one of its earlier cases involving the Department of Education, the case in which the court said that entities whose funds for teacher training had been wrongfully withheld by the Department of Education had to go to the Court of Federal Claims to get those funds.

But here's the thing, though.

The whole DOE example isn't exactly on point here.

These are different grants with different structures.

And more importantly, the plaintiffs in the NIH case challenge the policy slash memo on which the administration was freezing the funds.

And a majority of the court concludes that that challenge and claim were properly before the district court.

So that is one very big difference between this case and the Department of Education case.

And it's a difference that the court never actually acknowledges, much less grapples with.

Yeah.

And side note, you know, I'm going to put in a brief plug and point out how this decision exemplifies a pattern of what Dan Deacon and I call legalistic noncompliance and legalized noncompliance in a paper that's now forthcoming in the Duke Law Journal.

Here, as Melissa was saying, as we've been canvassing, the court has made it much more difficult for plaintiffs challenging the loss of these NIH grants to successfully challenge them and actually get their money back.

And by increasing the costs and obstacles and burdens to entities challenging the Trump administration's actions, the court is effectively reducing the odds and likelihood of rulings that are unfavorable to the administration and that could actually require the government to undertake meaningful compliance steps.

And it allows the court to functionally let the government continue to do what it's been doing without having to bite the bullet and say, yeah, on the merits, we're fine with this.

And because we are in this timeline, some justices wrote separately to do their own additional shitposting.

So Gorsuch, joined by Kavanaugh, suggested that the district court had, you know, willfully flouted and chosen not to obey or follow the Supreme Court's shadow docket order in the Department of Education case, which as Melissa just pointed out, is quite different.

And also four of your colleagues agreed with the district court's distinctions and readings.

But sure, man, it's the district courts that have gone wild.

I know.

It is like a new front in this Supreme Court's war on the district courts.

It is crazy.

We'll just mention that Coach K, Justice Kavanaugh, had a cav currency because of course he did, but it was basically just a listicle.

We're going to spare you the details.

But we should mention that Barrett, who really is the pivotal justice in this case, wrote separately to say that somehow it makes total sense to require plaintiffs to proceed into fora,

which really did feel like one of those Gorsuch concurrences where he says, basically, like, look, what a great textualist/slash lawyer I am, because I am reaching an absurd result that makes absolutely no sense.

But the law made me and I have no choice.

But hers, I will concede, is marginally better written and less dripping with self-satisfaction.

Less self-satisfaction is a very low bar here when we're talking about Neil Gorsuch.

So I I will just note that there is a fair degree of hubris to the notion of Amy Coney Barrett imposing a regime of claim splitting that eight of her colleagues actually reject and that Congress in no way intended.

So maybe not self-satisfied, but definitely sitting in her office stroking a hairless cat for a while because she obviously knows best.

Right.

Yeah.

Okay, but we should proceed to talk about Justice Jackson's dissent that really lets all of them have it.

Let's read a couple of choice quotes.

I'll start.

Quote: The court also lobs this grenade without evaluating Congress's intent or the profound legal and practical consequences of this ruling.

With potentially life-saving scientific advancements on the line, the court turns a nearly century-old statute aimed at remedying unreasoned agency decision-making into a gauntlet rather than a refuge.

And then the real banger, which I feel like has to be tattooed on every future decision that this court makes.

So here we go, quote, in a broader sense, today's ruling is of a piece with this court's recent tendencies.

Right when the judiciary should be hunkering down to do all it can to preserve the law's constraints, the court opts instead to make vindicating the rule of law and preventing manifestly injurious government action as difficult as possible.

This is Calvin Ball jurisprudence.

With a twist, Calvin Ball has only one rule.

There are no fixed rules.

We seem to have two, that one, and this administration always wins.

End quote.

911, I'd like to report another murder.

Like Katanji calls Calvin Ball on the court.

I feel like we need a name for the segment where we are reading Justice Jackson's writings, which speaks so powerfully and clearly to a general audience in describing what is going on.

At this point, I welcome suggestions.

Jackson's actions.

Oh, I love it.

It's good.

Jackson's actions.

Oh, yes.

Jackson's actions.

So there was a really great piece by John McWhorter in the New York Times a couple of weeks ago.

Leah, I think I read it and immediately called you.

It was called Listen Up.

Katanji Brown Jackson is speaking to you.

And it talked a lot about the ways in which conservatives are freaking out because Justice Jackson speaks in a more colloquial register.

Yes.

And McWhorter, whom I usually don't agree with, but I thought this was exactly right on target, noted that, yes, she is more colloquial.

She's not fucking talking to the court or to you.

She's talking to other people, and she's doing it in a way that's just much more accessible.

And I thought this was a perfect example of that.

We are going to get a huge number of hot takes from all the conservative Manoverse bros about how Calvin Ball should never make its way

into the federal reporters or the U.S.

reports.

But I think this is actually, it made a lot of sense.

I think it will resonate with people.

And if Brett Kavanaugh can have a listicle, I don't know why she can't have Calvin Ball.

Like, that is equality.

That is sex equality right there.

Right.

So I called, you know, this segment shadow docket shit posting.

We, alas, have even more shit posting

in this episode, right?

Exactly.

Actual shit posting.

Yeah, honestly.

So this is a post-project.

This is actually a post.

Familiar.

This is a post in the more familiar genre.

Posts of shit.

So correct.

Correct.

Okay.

So we are, of course, referring to Truth Social, and it is a deeply unfortunate feature of our current moment that Trump's Truth Social posts qualify as news, but that is kind of where we are.

So, in a recent post, Trump declared that he was, quote, going to lead a movement to get rid of mail-in ballots, that part mail-in ballots was all caps, and also, while we're at it, highly, quote, inaccurate and quote, very expensive and seriously controversial voting machines.

I have omitted all the capitals in that sentence because I just can't recite them all.

But just imagine a Trump post, and there you have it.

The post also claimed, inaccurately, I should note, that the the United States is, quote, the only country in the world that uses mail-in voting.

Well, listeners, I feel obliged to step in here to fact check this, and it is 100% not true.

Around 34 countries or territories in the world do allow mail-in voting, which they refer to as postal voting.

There are many countries in Europe who do this, although it's also important to remember that mail-in voting isn't some newfangled phenomena that Joe Biden dreamed up to win the election in 2020.

It's actually been around in the United States since the Civil War, right?

Which again, these guys would like to go back to pre-Civil War, Melissa.

It's all making sense.

Yeah, I mean, like, if you want the Confederacy, guess what?

They were doing mail-in voting there, right?

So, mail-in voting, postal voting not only existed in the United States around the time of the Civil War, it also exists in Australia and Canada.

These are countries that have lots of English speakers, lots of white people.

So, I think it's okay.

I think it's genuinely okay.

The president later noted in another statement that although he had said that the United States was the only country in the world that uses mail-in voting, he later came back and said, I might be wrong about this.

And to which I say, that is actually true.

You are fucking wrong about this, sir.

Correct.

You are wrong.

The Truth Social Post also claimed, again, inaccurately, that quote, the states are merely a quote agent for the federal government in counting and tabulating the votes, and that quote, they must do what the federal government as represented by the president of the United States tells them for the good of our country to do, end quote.

He's having a real federalism freak off here.

Truth through it, sir.

Truth through it.

Truth through it.

So the Truth Social Post then veered off to say that, quote, radical left policies like open borders, men playing in women's sports, transgender.

Yes, just side note, this is apparently a policy.

Just transgender.

Transgender is a policy.

Right, exactly.

And quote, woke for everyone.

Democrats are virtually unelectable without using this completely disproven mail-in scam, end quote.

And as ever, it signed off with, thank you for your attention to this matter.

Okay, so we are joking.

obviously about the ridiculousness of these posts, but also people were rightfully really scared about the substantive content.

It is a deeply alarming sign to have the head of the executive branch threatening the openness and fairness and accessibility and, you know, democracy of future elections.

So,

you know, this is a development that we don't want to make light of.

Like, it's genuinely alarming.

But notably, the president does not purport to say that he is going to create a policy to ban mail-in votes, which I don't think he can do.

But he does say that he is going to be the leader of a movement to ban these votes.

So Donald Trump, community organizer,

welcome to the show, I guess.

Like,

okay.

It's also worth noting that states do not have to follow directions that are contained in truth social posts.

And I feel like we have to reiterate that, even though it's kind of a basic fact.

Truth social posts are not law, right?

We should also say that as individuals who are very concerned about what this administration is doing and might do to our democracy, The president cannot unilaterally declare how elections are conducted.

That is not how this works.

I will say that putting this out there around the same time that the Department of Justice is supposed to release the first tranche of Epstein files, maybe all of this is related.

Who is to say?

Who is indeed to say?

Yeah.

And just to say another word on the kind of allocation of authority over election administration, the Constitution actually does assign the federal government considerable power over elections, but it is the Congress, not the president, the Constitution gives that authority to.

And this is not one of of those areas, and there are plenty of others where Congress has delegated to the president a lot of authority that it itself possesses.

It is Congress, not the president, that is the federal entity that has regulatory authority over federal elections.

There's also this whole thing called federalism.

You might have heard of it.

States set rules regarding the conduct of elections, including federal elections, subject to the constraints of the federal Constitution and laws passed by Congress.

State election rules are not defeasible by the president's social media posts.

You know, so what is this shit posting doing?

You know, perhaps in addition to distracting from Lefebvre Epstein, it is among other things fomenting uncertainty about voting, like which potentially creates a basis for restricting voting, right?

You generate uncertainty, then you say, like, I am resolving the uncertainty.

It's like the major question doctrine.

Right, exactly.

It also, I think, is an act intended to suppress voter engagement.

So it raises questions about the integrity and openness of future elections.

And that kind of doomerism very much suppresses turnout.

I mean, if you think you're going to vote and it's not going to be counted because mail-in ballots, why go vote?

And I think they know that too.

It's also establishing the Republican position on voting from the leader of the party.

It is encouraging Republican-controlled legislatures or election boards or Republican election officials, like what they should be pursuing and trying to do.

And it's doing all of this at the same time that they're launching this horrifying redistricting plan.

Yes.

It's all in concert, like lots of balls in the air.

The balls all go together.

They are doing, it seems pretty clear, everything in their power to ensure that they will not lose control of the House of Representatives in the upcoming midterm elections.

And it's imperative that all possible levers of power be used to resist those efforts.

All right, in other news, the Trump administration has decided to take a new tack in their war on agency independence and expertise and really go for a twofer by attacking agency independence while also continuing their apparent effort to resegregate the federal government and society more generally.

So here's what I mean.

Bill Pulte, who is the Trump selected director of the Federal Housing Finance Agency, FHFA, said on social media last week that his office had investigated Lisa Cook, a Federal Reserve governor who also happens to be black, the first black woman to serve on the Fed, that they are investigating her for mortgage fraud, and that they have referred the matter to the Department of Justice.

Pultey then suggested that the president could, maybe should, fire Cook on that basis.

And the president subsequently demanded on True Social that Cook, quote, resign now, several exclamation points, and has since said if she doesn't resign, maybe he will try to fire her.

We really want to emphasize here that these allegations are completely unconfirmed, and they should be understood amidst a pattern of Trump and officials in the Trump administration using the apparatus of the federal government, like the DOJ, to attack political rivals, including through bogus criminal charges.

Pulte has made similar mortgage fraud allegations against California Senator Adam Schiff, who also was an impeachment manager in the first Trump impeachment, as well as New York Attorney General Letitia James, who launched several streams of litigation against the president.

This morning, when we were recording this episode, the FBI was conducting a raid on John Bolton's house.

No love loss for John Bolton, but we will note that he is one of the most prominent critics of the president, at least on foreign policy.

And the administration apparently has used the FBI's extensive investigative powers to harass and intimidate and generally make life difficult for political opponents like John Bolton.

And this is what we in the business call authoritarianism.

Yes, and this expedition may be the result of Trump seemingly picking up on some things the Supreme Court has been throwing at him, as you can hear here as he is talking about the Bolton raid.

I tell Pam and I tell the group, I don't want to know about it.

Just you have to do what you have to do.

I don't want to know about it.

It's not necessary.

I could know about it.

I could be the one starting it.

I'm actually the chief law enforcement officer,

but I feel that it's better this way.

This statement also has real OJ if I did it vibes.

But, you know, on the court, you know, it does.

Right.

He's admitting he did it um

like the court by going further and further into the unitary executive abyss is as always one of donald trump's worst enablers The attacks on Lisa Cook in particular are among the latest in Trump and his cronies' attempts to eviscerate the federal administrative state and to remove independent expert officials, including at the Federal Reserve Board, the once vaunted exception to the attack on the administrative state.

This is how I guess we're bringing it all in.

Trump has been complaining about and making noises about firing Fed chair Jerome Powell, largely because Powell seems unwilling to do Trump's bidding insofar as Trump would like him to lower interest rates to jook the economy.

And the context for this campaign against Lisa Cook is that Trump and his underlings have been removing black officials and women and black women officials from positions of authority and calling into question the presence and accomplishment of black people and women in what seems to be a pretty high priority for this administration, basically since the beginning.

Well, it's not just about removing black women and black officials from positions of authority and calling into question their accomplishments and credentials.

He has actually moved in two cities with black women mayors to essentially occupy them using federal troops.

So Los Angeles is the place where Karen Bass, former representative, now is mayor of that city.

She's a black woman.

Muriel Bowser, a black woman, the mayor of Washington, D.C.

He's talked about maybe looking at Oakland, California, which is the place where Barbara Lee is the mayor.

So, I mean, there is a kind of pattern emerging here.

Yeah.

Now, Cook has responded by saying she has no intention of being bullied out of her position on the Fed, that she learned of the allegations from media reports, and that she's gathering information and will respond to legitimate questions and provide facts.

Strict scrutiny is brought to you by Fatty15.

Let's be honest, the last eight months or so and the last few Supreme Court terms have felt like years, millennia even, but I don't want to let those guys foist on me some of the costs of aging, whether it's poor sleep, mobility limitations, or more.

I have to stay ready to fight the patriarchy in whatever shape and form that fight takes, which means staying up on my health and wellness.

And that means I am over the moon about a healthy aging product that can help reverse aging at the cellular level, that is is to counter the court and the administration saddling me with what feels like millennia.

I'm so excited to share with you guys C15 from Fatty15, the first emerging essential fatty acid to be discovered in more than 90 years.

It's an incredible scientific breakthrough to support our long-term health and wellness, and you guessed it, healthy aging.

Based on over 100 studies, we now know that C15 strengthens our cells and is a key healthy aging nutrient, which helps to slow biological aging at the cellular level.

In fact, when our cells don't have enough C15, they become fragile and age faster.

And when our cells age, our bodies age too.

Fatty 15 repairs age-related damage to cells, protects them from future breakdown, and activates pathways in the body that help regulate our sleep, cognitive health, and natural repair mechanisms that support our overall health.

Fatty 15 is a science-backed, award-winning, patented, 100% pure C15 supplement.

It's vegan-friendly, free of flavors, allergens, or preservatives.

Fatty 15 has three times more cellular benefits benefits than omega-3 or fish oil, and Fatty 15 is clinically proven to raise C150 levels.

As I was training for my 10K swim, super taxing on my body, I made sure to take my Fatty 15 to help my body recover and stay healthy during the training and, you know, after too.

Fatty 15 is on a mission to optimize your C15 levels to help support your long-term health and wellness, especially as you age.

You can get an additional 15% off their 90-day subscription starter kit by going to fatty15.com slash strict and using code strict at checkout.

Take recruiting off your to-do list.

Handshake is America's largest entry-level talent network, connecting you with 20 million verified candidates who are ready to work.

Post a job in minutes and get your first qualified applicant on the first day.

From small businesses to Fortune 100 companies, over 1 million employers trust Handshake.

Hire qualified candidates, smarter and faster.

Post your job for free today on joinhandshake.com/slash hire.

Moving on, we need to talk about one of John Sauer's legal filings.

Elizabeth Prelager, please save us, please.

Okay, this is actually fun.

So, in his latest and perhaps greatest filing, John Sauer, the current Solicitor General of the United States, made clear that in his view, the client of the Solicitor General is not, as has long long been understood, the federal government or the people of the United States.

In fact, it is just a person, Donald John Trump.

So just cast your memory back to an insane legal document Sauer filed before he was the SG, back when he was just Donald Trump's personal lawyer.

For real, for real.

Yeah, yeah.

I mean, obviously.

Initially.

Yeah.

That's all he was.

And now he's other things too.

But that's before he was also the SG.

And in that case, the TikTok case, he filed a brief on on behalf of, you know, president-elect, but not yet president, Donald Trump, declaring that Trump was, quote, one of the most powerful, prolific, and influential users of social media in history.

And that, quote, Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a solution to save TikTok.

Well, guess what, folks?

John Sauer has done it again.

He seems to have completely forgotten that he was actually confirmed as Solicitor General and is no longer Donald Trump's personal lawyer.

At least that's what this letter from John Sauer to the Federal Circuit in the case about Trump's tariff seems to suggest.

So, Steve Laddick on One First flagged an unusual document from Sauer.

Again, cannot recommend One First enough.

For those of you trying to stay on top of the firehose of legal news, it's just an incredible resource.

The Federal Circuit heard oral argument in one of the cases challenging Trump's tariffs, and the Federal Circuit hasn't yet issued an opinion in that case.

But.

But while the case remains pending, the SG submitted what is called, or at least purported to be, a 28J letter.

So, what that's supposed to be is a notice of supplemental authority.

So, these are typically used when, after a court has heard oral argument, but before it's decided the case, some new decision comes out that might be relevant to the pending case.

And so, the litigants just want to bring to the court's attention this newly surfaced authority.

That is not the way the 28J letter was used by Sauer here.

So, this 28J letter does not draw the Federal Circuit's attention to a new case that might shed light on the case that is currently pending before that court.

Instead, John Sauer took this 28J letter as an opportunity to highlight the great deals that President Donald J.

Trump has made.

I kid you not.

The supplemental authority that this letter cites in a case about whether the president has the authority to adopt tariffs that are unhinged, as these are, is the fact that the president entered into trade agreements with other countries and organizations.

So the question is: can the president enter into these tariffs?

And now the new authority that is being cited is the fact that the president entered into these agreements with other countries.

And here is how John Sauer attempted to explain to the court why the president has this authority.

Like this reads like a True Social Post or a Caroline Levitt presser.

Here's a few samples.

Quote, one year ago, the United States was a dead country.

And now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable, and respected country again.

MAGA!

Like, it missed that.

It didn't have the right citation at the end.

MAGA is supposed to be at the end.

Completely implicit.

Or thank you for your attention to this matter.

Wait, let me read like one more excerpt.

Quote, if the United States were forced to unwind these historic agreements, people would be forced from their homes, millions of jobs would be eliminated, hardworking Americans would lose their savings, and even Social Security and Medicare could be threatened.

In short, the economic consequences would be ruinous instead of unprecedented success.

I think he is mistaking the tariffs with the big beautiful betrayal bill, where people are actually being kicked off of Medicaid and may actually lose their homes.

Hard to say.

Anyway, we just wanted to highlight this because this isn't the sort of document that one ordinarily expects to be filed by the Solicitor General's office,

but it does seem to be more confirmation of how thoroughly President Trump is destroying institutions.

Yeah.

All right.

A little more on Donald Trump's efforts to appoint only the best people.

So a district court judge in New Jersey found that Alina Haba's appointment as the United States Attorney for the District of New Jersey was, wait for it, unlawful.

That is to say that Alina Haba has been exercising the functions and duties of the U.S.

Attorney illegally and should be disqualified from the pending prosecutions in which her appointment was challenged.

After the ruling, Haba shared a unique perspective on federal judges.

And I will say it's unique even for this administration.

Let's roll the tape.

And Pam Bondi called it like it is.

The Attorney General said it today.

We will not fall to rogue judges.

We will not fall to people trying to be political when they should just be doing their job, respecting the president.

And you can't get rid of the president.

This is apparently what life tenure was for, to enable judges to respect the president so hard.

I will say in Haba's defense, however, this seems to be the Republican appointees on the Supreme Court's view on the federal courts as well.

You know, as to the merits of this ruling, the administration, I think safe to say, is likely to appeal it, and it's unlikely this is the end of the matter.

Meanwhile, the district courts continued to do their jobs in the face of antics from both the President and the Supreme Court.

So, a Florida district judge concluded that the construction of the detention facility in Florida, the Florida fascism facility that the administration calls Alligator Alcatraz, was illegal.

And the judge ordered the government to dismantle it within 60 days.

This, too, is unlikely to be the end of the matter, but it's an important and welcome development nevertheless.

The court found that the construction of the facility violated, wait for it, the National Environmental Protection Act, or NEPA, aka Coach Kay's favorite statute.

Build, build, build.

So, in what is less high-profile news, we wanted to acknowledge the passing of Paul House.

You might not have heard of him, but he is the House of the Supreme Court's 2006 decision in House versus Bell.

This is a habeas case, which means it will require some explanation.

It arose from Paul House's conviction for murder, for which he had been sentenced to death.

In federal court, he later sought to raise new claims challenging his conviction and sentence that had not been fleshed out in the state courts.

And you generally can't do that absent some narrow exceptions.

One of those exceptions is the innocence gateway.

If you show it's more likely than not that no reasonable juror would have convicted you of the crime based on new evidence, then you can get a federal court to hear your new constitutional claim challenging your conviction or sentence.

And in a 5-3 decision, the Supreme Court in 2006 held that Paul House had satisfied this standard.

Indeed, he's the first person the court concluded had satisfied the innocence gateway standard they announced in a prior case.

The decision was 5-3 because Alito didn't participate.

He hadn't yet been confirmed to the court when the court heard oral argument in the case.

This was a case then that was argued and decided during both the Chief Justice's and Justice Alito's first term on the court.

And Leah, you can correct me if I'm wrong.

I think this was one of Roberts'

author dissents.

Yeah.

So this was one of his first dissents on the court.

And I think it's just worth highlighting this.

We are coming up on the 20-year anniversary of John Roberts as Chief Justice.

His time on the court began 20 years ago.

And so it seems like marking the passing of Paul House is especially important in this moment.

This is a man that Chief Justice Roberts would have voted to keep in prison and to prevent the federal courts from even hearing his claims.

And I want to give you like some sense about how all of the evidence used to convict House turned out to be questionable.

This This is the evidence and the person that Roberts said, like, no, federal courts just have nothing to do or correct here.

So DNA testing later excluded House as the source of the DNA on the victim's nightgown, even though at trial, existing technology suggested he was a possible source.

And perhaps in the wildest bit was that later testing revealed that the victim's blood that had been found on House's jeans came from the victim after she had been autopsied.

So it seems to have resulted from a contamination for which there was additional corroboration, i.e., that there was a contamination.

So the test tube used to transport the victim's blood had been improperly transported in the same box as House's genes.

And between the time of the autopsy and the testing of the evidence, three quarters of the blood in the test tube had gone missing.

Like this is the man Roberts would have kept on death row in his first year on the court.

Not only kept on death row, but basically said there was no avenue for federal courts to provide redress.

And I just want to call attention to the through line between his dissent in this case and his majority opinion in 2019's Russia versus Common Cause, where again, he said that there's no role for the federal courts to play in policing partisan gerrymandering, which is part of the reason why we're in this insane mess that we're in with regard to redistricting.

This is all part and parcel of John Roberts institutionalist.

It's just the institutionalist thing is just so much bullshit.

In any event, House was released from prison in 2008 after additional testing revealed that the DNA under the victim's fingertips was not his.

He developed multiple sclerosis in prison, which was not adequately treated there and had been delayed in being detected.

He was never compensated for his time in prison because the Tennessee governor never formally exonerated him.

Yeah.

And I wanted to recommend Radley Balkle's post on this over at his Substack, which details, among other things, how in prison House had to be carried to visits with his mother because he could no longer walk because he wasn't being provided with treatment or support in prison.

All right, let's turn now to one of our more usual beats.

We need to talk about the Fifth Circuit.

The Fifth Circuit was never going to let the DC Circuit have all the fun.

Nobody puts baby or the Fifth Circuit in the corner.

So the Fifth Circuit decided to declare that the National Labor Relations Board is likely unconstitutional in both its structure and design.

And all of this arose in the context of a case that involves SpaceX.

Yeah.

So I am going to pull a Clarence Thomas here, maybe the first and only time I will ever say this, and cite myself.

So in I Told You So as a Cassandra development, I wanted to play a short clip of myself from the Daily Show.

You were a clerk at the Supreme Court.

I was.

I always assumed as an American that this was kind of, they were the adults in the room, that this is where things finally ended and justice was served.

Right or wrong?

What's it like in there?

So, part of the goal.

I think I know how you're going to answer.

Part of the goal of the book is to socialize people in a different picture of the Supreme Court.

And, you know, we have a guy taking a literal chainsaw to the federal government and electoral politics.

He's not in the Supreme Court, correctly?

Well, but here's the thing: he's allegedly doing so on like bladder-damaging levels of ketamine.

They're doing it stone cold sober.

They are just saying you can't have the clean power plan because there's a debate about climate regulation.

You can't have student debt relief because that would be like the French Revolution.

And it triggers me.

You can't have the Voting Rights Act because that's too popular.

And so they're doing the same thing.

It's just not getting the same kind of attention.

The point is the federal courts and Doge are both in on this war on government as we know it, like independent, competent, expert government, the kind Americans rely on and don't even realize they rely on it because it's just humming along doing its job.

Yeah.

All right, so briefly, here's what happened in this case.

The Fifth Circuit declared the structure of the National Labor Relations Board unconstitutional because the NLRB implements federal labor laws by relying on a system of administrative law judges, so civil servants who adjudicate complaints that an employer or workplace is in violation of federal labor law.

As civil servants, they are, or at least were, independent of political influence.

They could be removable only for cause by the heads of the NLRB, who are themselves, again, at least for now, also only removable for cause.

And the Fifth Circuit took that personally and said, nope.

And they did so by relying on their earlier decision in SEC versus Jarcasi, which declared the SEC's system of administrative law judges unconstitutional because the ALJs were insulated by two layers of removal restrictions.

As you know, the Supreme Court took up the Jarcasi Jarcasi case, but its decision elected to affirm the Fifth Circuit, that is, to agree with the Fifth Circuit, on only one of the three possible grounds on which the Fifth Circuit had said that the SEC was unconstitutionally structured.

So in Jarcasi, the Supreme Court said that the specific claim that the SEC brought against Mr.

Jarcasi had to be heard by a jury rather than an administrative law judge in order to be compliant with the Seventh Amendment.

But in that case, the Supreme Court being the quick settler of legal issues that ensures the uniformity and stability of our legal system, LOL, elected to say nothing at all about the two other bonkers' grounds on which the Fifth Circuit had said the SEC, the Securities Exchange Commission, was unconstitutional, including that ALJ's administrative law judges couldn't be insulated by two layers of removal restrictions.

So the Fifth Circuit whipped out that bad boy, their previous decision in Darkassee, slapped its hood and said we can fit a whole other agency in this bad boy and declared the NLRB also likely unconstitutionally structured.

I think someone has to tell the court that dealing with the Fifth Circuit is literally like a case of mold abatement.

You get one room, but you have to get all the other rooms where the mold is, or the mold is just going to spread.

Right.

Like the Fifth Circuit is in Louisiana.

It's really humid there.

The mold spreads.

You got to do the whole thing, not just piecemeal.

In any event.

And we know how bad mold can be.

See The Last of Us, right?

Like, it's going to get wild.

Okay, why did you go there?

Sorry.

He doesn't even know what we're talking about.

No, I haven't seen this season at all.

I'm familiar with The Zombies.

Yeah.

Okay.

Anyway, all to say that this issue, whether the NLRB is unconstitutionally structured and in this second room guest room mold theory is likely headed to the Supreme Court.

Just a quick side note, which is if the court overrules Humphrey's executor before they decide this case, the ALJ NLRB case, which they've already kind of overruled Humphreys, but not admitted on the shadow docket.

Right, like, are they ever going to get to this ALJ issue?

Because Humphreys executor is the case that said heads of multi-member commissions can be insulated from presidential removal.

And then in Trump versus Wilcox, the shadow docket order Melissa referenced, the court said, just kidding, no, they can't be insulated from presidential removal except for the Fed.

And they allowed Trump to remove the heads of two multi-member commissions, the MSPB and the NLRB.

So, will they find a way to say two layers of removal restrictions on ALJs are unconstitutional, even though they have already effectively removed one of those layers of removal restrictions?

Like, on the one hand, the court isn't supposed to decide hypothetical abstract legal issues, but on the other, you know, the vibes here seem pretty off and YOLO.

So, why not?

Okay, finally, we've got some updates on the effort to federally take over the District of Columbia.

Red state governors have been calling up state National Guards, that's Ohio, West Virginia, Mississippi, Louisiana, South Carolina, Tennessee, and sending them to D.C.

This creates some possible loopholes to some of the limitations on the federalized National Guard.

For example, does the Posse Comitatas Act apply?

Under 32 USC, Section 502F, governors may agree to deploy their guard forces to perform missions requested by the President or Secretary of Defense without the Guard being called into federal service.

These National Guardsmen then aren't federalized, which means the Pasi Comitatas Act may not apply, even though they may be taking direction from the U.S.

federal government.

So sounds ideal.

What could go wrong?

Also, just want to note: the whole idea of southern states sending troops to the capital sounds familiar.

I'm not sure if I heard this one before.

How on earth could this go wrong?

It's hard to say.

Yeah.

Some administrative notes/slash FYIs, we are actually going to be off next week.

So you will not hear us in your earholes on Labor Day then.

Maybe like perhaps barring a major emergency in the next two weeks, but we are really trying to take a break.

So we are planning to be back on September 8th.

And we look forward to it.

I don't know, maybe that's not quite the right word, but you know, that's what I've got.

Okay, so that is all the news, but stay tuned for a conversation I had with Ellie Savitt, a candidate for Michigan Attorney General, about threats to Obergefell versus Hodges, marriage equality, and LGBT rights.

And after that, make sure to stay tuned for a conversation I had with my colleague and friend Serena Maieri about her wonderful recent book, Marital Privilege.

Strict scrutiny is brought to you by Cozy Earth.

Bed should be the place where you can actually exhale at home, not where you're having feverish nightmares about the Supreme Court's revanchist plans for the country.

Heck, same thing with your couch.

That too should be a place to relax, not to hunker and cower down awaiting the next shadow docket order.

And guess what helps helps me make those things happen?

My cuddle blanket from Cozy Earth, which I am obsessed with.

The fabric and shape is unlike any other blanket I have.

The pattern is almost like a mochi waffle, but it's covered in this insanely soft material and it has a weight and a substance to it that make me feel, well, cuddled, comforted, snuggled, in the best way, not being overheated and smothered.

Now my partner and I actually fight about who gets a cuddle blanket in the evening.

No joke, I get real FOMA when he's got the cuddle blanket.

Cozy Earth offers risk-free purchases, like a 100-night sleep trial.

So you can try out their products and if you don't love them, return them hassle-free.

But trust me, you won't want to.

They also have a 10-year warranty because once you feel this level of comfort, you'll want it to last a decade.

Head to cozyearth.com and use my code scrutiny for up to 40% off.

That's cozyearth.com code scrutiny.

And if you get a post-purchase survey, make sure to let them know you heard about Cozy Earth right here because your bed should be more than a place to sleep.

It should be your happy place.

Cozy Earth makes that possible.

Comcast Business High Five Hotline.

I signed my business up for the five-year price lock guarantee, and I can't stop high-fiving people.

That's perfectly natural when you sign up for Gig Speed Internet and Advanced Security.

Locked in at a great rate for five years.

Really?

That's great news.

High-five, everybody!

The Comcast Business Five-Year Price Lock Guarantee is back, but only for a limited time.

Sign up today.

High-five!

Ends 9-21-25 for new customers with qualifying bundles.

Current customer eligibility varies by service and area.

Guaranteed rate applies to monthly service charge, excluding taxes, and fees.

Other ships apply.

I am delighted to be joined for this segment by Ellie Savitt, Washtenaw County Prosecutor and candidate for Attorney General of Michigan.

Welcome to the podcast, Ellie.

Thanks so much for having me.

Longtime listener, first-time caller.

Is that what I'm supposed to say here?

That is an acceptable thing to say.

Thank you.

I should also mention Ellie is a law school classmate of mine, go blue, but that

go blue, but that is not actually the reason I wanted to have him on today.

The reason is that we have received a bunch of listener questions about the threat to Obergefell versus Hodges and marriage equality.

So we briefly mentioned last episode that Kim Davis had filed a cert petition asking the court to overrule Obergefell.

And Ellie is a former Supreme Court clerk to Justices O'Connor and Ginsburg.

And as a candidate for state attorney general here in Michigan, he's particularly well suited to not only talk about the threats to Obergefell, Obergefell, but also what can be done about it.

So I wanted to first start by elaborating on why Kim Davis just ain't it.

So we have not been shy to warn about the fact that the court is coming for many other rights and likely to do a bunch of wild stuff.

So I wanted to take a beat to explain why I don't think Kim Davis's petition is going to be the case where the court overrules Obergefell or even limits it.

So Kim Davis was a clerk and she was sued for emotional distress by a same-sex couple she refused to marry after Obergefell.

She actually refused to marry anyone out of protest.

And, you know, the claim that the couple filed against her is emotional distress.

It's a state tort claim.

It's not a federal constitutional claim.

And Davis sought to defend against that claim by raising a First Amendment defense, saying the suit interfered with her expression and religious beliefs.

And she also sought to raise an immunity defense, saying basically the plaintiffs were improperly suing the state.

Still, no Obergefell issue.

And what that means is in order to actually reach this question about a Bergefell, the court would have to wade through those threshold procedural issues, like whether Kim Davis is entitled to sovereign immunity as a government official, whether she has available defenses to the tort claim that would obviate the suit.

And the tort claim doesn't depend on a Bergefell.

It's like her lawyers just added that claim as a homophobic bonus.

So, Ellie, am I underselling this case?

Like, should people be worried about this particular one?

I don't think that now is a time to panic about this particular case.

Now, you know, given that this court is, as I think have been said on this podcast many times, the YOLO court, right?

I don't think we can ever be 100%

sure, you know, I mean, they're doing stuff like reorganizing the federal government on the shadow docket and that's pretty unusual, but it would be extraordinarily unusual by the court's historic standards, anything they've done up to this point for them to take, I think, the Obergefell issue in Kim Davis's case.

Yeah.

And in fact, she tried this same gambit in this very case back in 2019 when the question was just whether she should have to go to trial on this claim.

And in this, again, very same case, noted liberal squishes Thomas Analito said, quote, this petition implicates important questions about Obergefell, but it does not cleanly present them.

For that reason, I concur in the denial of Serciorari, end quote.

So again, they've already said in this case, they don't think this is the one.

Again, these guys are shameless, right?

They do kind of about faces all the time, but still, right, these are reasons to think this just isn't it.

So Ellie, if it's not Becky with a bad cert petition, what are the threats to Obergefell or what should people be watching for?

Well, look, I don't think that we can be too comfortable that Obergefell is going to be a precedent that endures.

And that's true for a couple of reasons.

One is we cannot underestimate at this point the real interest in the conservative movement and the anti-LGBTQ movement in particular in attacking Obergefell.

You know, there was recent polling done and Republican support for same-sex marriage has fallen 14%

since 2022.

In 2022, a majority of Republicans supported same-sex marriage.

Now it's down to 41%.

And that, of course, is a result of the anti-LGBTQ rhetoric that we're seeing out of the White House, out of the Republican Party right now.

Out of the Supreme Court, you know.

Out of the Supreme Court.

Right, right.

So, I mean, so there is an interest in doing this.

But then the other thing is, you know, we all read Dobbs.

And of course, there's Justice Thomas's concurrence in Dobbs, where he says, pretty much in no uncertain terms, in as no uncertain terms as you can in a concurrence, that he's going to vote to overturn Berkeley.

I mean, he says we have a duty to correct that error.

So there's one vote, but then also just looking at the majority's reasoning, right?

I mean, basically what they say is fundamental rights are not fundamental unless they were fundamental in the 19th century.

And as we all know, same-sex marriage was not recognized in the 19th century.

So there's a real threat, both in terms of the interest in overturning Obergefell in the conservative and Republican movement, frankly.

and then also in the way that the court is thinking about these cases.

And, you know, people will say, oh, they'll never do it.

Well, that is the exact same thing that people said about abortion, and they don't do it until they do it.

And we've got to start preparing now for that eventuality.

Yeah.

And so, in addition to overruling Obergefell, you know, one thing we have highlighted on this podcast are the efforts to chip away at the decision, you know, short of overruling it, which could either be, you know, steps along a path to eventually overruling Obergefell, or could just be independently concerning ways of chipping away at LGBT rights.

So for example, right, were the court to say, well, we are defining what the marriage right is that's protected, but it turns out they don't think that marriage right entitles you to be recognized as having the power of attorney or to make health care decisions over your spouse, or it doesn't entitle you to necessarily be recognized as the parent of children born into the marriage or adopted into the marriage.

Like these are all ways the court could whittle away at Obergefell without outright overruling it.

And this is in addition to recognizing like First Amendment exceptions to LGBT rights.

So, you know, Ellie, we try to focus on what people can do as a candidate for attorney general of a state.

What are some things state attorneys general can do in response to these threats?

And like, what should people be asking of their state attorneys general?

So I think there's several things.

One is, first and foremost, your state attorney general needs to be doing everything possible to fight back against attempts to chip away at or outright overturn Obergefell.

You know, states are really important litigants in the federal system.

The U.S.

Supreme Court has recognized that over and over again.

It's because they're seen as representing a sovereign state as well as the people of their state.

So they're really second in importance only to the federal government in federal courts and it matters what position your state attorney general is thinking you know i was clerking at the court when o'bergefell uh was argued and it was frankly to my great shame that the guy that stood up and argued in court against marriage equality was representing the Michigan Attorney General.

So that's one thing, right?

The other thing is, you know, we've got to be prepared as attorneys general to play some defense

and make sure that we're protecting marriage equality to the extent possible if indeed O'Bergefell is overturned.

And one of the key issues that's going to be on the horizon there is the 2022 Respect for Marriage Act, which was passed by Congress and basically requires states to recognize marriages that were validly performed, including same-sex marriages in other states.

Well, make no mistake about this.

If O'Bergefell falls or even is chipped away at, the constitutionality of the Respect for Marriage Act is going to come to the forefront.

Anti-LGBTQ people are not going to stop and they're going to challenge that.

And that's where states' voices are really important because that's going to be challenged on states' rights grounds.

You know, the other thing I'll say is there can be state laws as well,

which an attorney general can seek to defend, which would require the recognition of marriage independent of that federal act.

So, your AG has not just got to be fighting to protect Obergefell, but fighting to protect those existing marriages and marriages validly performed in other states as well.

I also wanted to say something, maybe a little bit bigger picture about the potential for state attorneys general office.

So, I think that over the course of this podcast, we have talked about how the conservative and right-wing legal movement has been really out ahead of progressives in recognizing talent and trying to cultivate talent among like the next generation of lawyers.

And they have oftentimes used state attorney generals and state solicitor general's offices as vehicles to do so.

You know, Judge Van Dyke, for example, you know, one of the most infamous judges in the Ninth Circuit cut his teeth in state solicitor general's offices.

A bunch of the current nominees of the second Trump administration worked in state attorney general or state solicitor general's offices.

And I think that people on the left and progressives need to start looking at state attorneys general offices as incubators of talent, right?

And as building the bench for the next, you know, wave of progressive left-wing lawyers who are in a position to develop the legal theories, to advance democratic values in the law, and to actually fight for things that progressives want in state courts and federal courts.

And I think that that is also something that people should be thinking about, you know, when state attorneys general offices come up.

Look, I couldn't agree more.

And again, part of the reason that this is such a powerful position and such an important incubator is because of who state attorneys general represent.

In the state of Michigan, there is not a single other lawyer other than the state attorney general that can stand up and say, I represent the people of the state of Michigan, the entire state, right?

I mean, I do that right now as a prosecutor, but the entire.

people of the state of Michigan.

When you're talking about people's fundamental rights being taken away, people's civil rights being taken away, it's tremendously important that you have somebody in the state AG's office that is going to actually litigate to protect those rights, especially when it's the federal government, right, which is supposed to be the other entity in government that's supposed to be protecting our rights when it's the federal government that's attacking them.

Yes, for sure.

So, Ellie, you know, we've already talked a little bit about what people who are concerned about the future of Bergefell, marriage equality, LGBT rights can do.

I guess, anything else to add beyond what we've already talked about, like investing in state and local elections and educating yourself about who's representing your state and you?

Yeah, well, 100% with Obergefell in particular.

You know, if Obergefell is overturned, that of course...

punts the question of whether to recognize same-sex marriages back to the states.

And in over 30 states right now, marriage is defined solely as between one man and one woman.

In the vast majority of those states, it's defined in the Constitution.

Now, the thing about that is that in a number of states, including here in Michigan, the Constitution can be amended directly by voters.

And my view of this is that we should not be waiting to see what the Supreme Court does and waiting for these old zombie laws to spring back into effect like we saw with abortion.

Let's start acting now in states.

The people can do this directly in a number of states to amend our state constitutions, protect marriage equality directly there.

So, if and when Obergefell is overturned, for example, in Michigan, we'll still be protecting and recognizing same-sex marriages.

And that's something people can do directly.

They can organize these ballot drives.

I do want to put in one other plug for what an AG can do.

This is the intersection between democracy and civil rights, right?

And so, you also probably want an attorney general in place in your state that is going to actually defend the right to the initiative and the right to vote

and, you know, will respect the people's judgment there at the ballot box.

Yeah.

So Ellie, where can people find more information about you?

Sure.

So my website is Ellie and it's spelled Eli.

So E-L-I,

F-O-R, Michigan.com.

If you need help spelling Michigan, Google.

You live in Ohio.

Right, right, right, exactly.

Exactly.

So E-L-I-F-O-R-Michigan.com.

You can find more about us.

You can find more about our campaign.

And I'll just put in one plug for people that may not live in Michigan.

It may say, well, why do I care about the Michigan Attorney General?

Well, for one, again, it matters sometimes in national scope who the Attorney General of a particular state is.

Recall, like I said earlier, it was our former attorney general that was up there defending same-sex marriage bans in the Supreme Court in Obergefell itself.

The other thing that I'll say is, you know, we are heading into a season where we're going to have elections, and it's a season in which we're going to have national elections in light of what we've seen are direct attacks on democracy.

So if you're thinking, why do I care about the Michigan Attorney General's race, think about where you might be on election night in 2028.

Imagine that the vote is really close in Michigan and Michigan's electoral votes could swing one way or the other.

And it's going to lead to court battles.

And let's say the Democratic nominee has a slight edge, but there's challenges to the votes in Detroit, for example.

The country's going to need a Michigan Attorney General who's prepared to fight for democracy, fight to count every single vote.

That is the attorney general, I'll be.

So if you're elsewhere in the country, just think about that as you consider whether you care about my race.

Yes.

Okay, finally, Ellie, we've been asking people for their recommendations, things they've read, heard, or watched in the last week and enjoyed.

Care to share anything with our listeners?

Yeah, sure.

So, this is a recommendation that I'm quite confident everybody is going to hear very soon.

But on my way to work this morning, I heard Doja Cat's new single, Jealous Type, which I have to say is, you know, it's a late candidate for Song of the Summer.

We're recording this in late August.

So, I don't know if you can still enter then, but if not, it's going to be the song of the early fall.

So, you're going to hear it.

Check it out.

But, you know, if you haven't heard it yet, just remember that I told you was a good song for you.

Thank you so much for joining, Ellie, and for that delightful recommendation.

Thanks, Leah.

Don't go anywhere.

We'll be right back with my conversation with Serena Maieri about her terrific new book, Marital Privilege.

Strict scrutiny is brought to you by Mosh, the Supreme Court.

They age me by like a thousand years, and I need to stay young and alert so I can stay up for all of the Taylor Swift album announcements, which means being intentional about the way I live, eat, and take care of my body.

I am always looking for an on-the-go protein snack, and now there's one that helps me live intentionally too.

Mosh Bars.

Mosh, which you may have heard about on Shark Tank, was founded by Maria Shriver and her son Patrick Schwarzenegger with a simple mission.

to create a conversation about brain health through food, education, and research.

Maria's father suffered from Alzheimer's and since then she and Patrick have dedicated themselves to finding ways to help other families deal with this debilitating disease.

Mosh joined forces with the world's top scientists and functional nutritionists to go beyond your average protein bar.

Each MOSH bar is made with ingredients that support brain health like ashwagandha, lion's mane, collagen, and omega-3s.

Plus, a game-changing, brain-boosting ingredient you won't find in any other bar.

Mosh is the first and only food brand boosted with Cognizin, a premium nootropic that supplies the brain with a patented form of cytokoline.

But here's the best part to make you feel good.

The flavors, they actually taste great, and that includes new plant-based flavors like chocolate chip cookie, hazelnut chocolate chip, and peanut chocolate chip.

Yes, I am a cookie and chip person.

I also love Mosh's focus on health and healthful living with an attention to gender.

Mosh donates a portion of all proceeds from your order to fund gender-based brain health research through the women's Alzheimer's movement.

Why gender-based?

Well, two-thirds of all Alzheimer's patients are women.

Mosh is working closely to close the gap between women and men's health research, and that's so important given, well, everything going on.

If you want to find ways to give back to others and fuel your body and your brain, Mosh Bars are the perfect choice for you.

Head to moshlife.com/slash strict to save 20% off plus free shipping on the bestsellers trial pack or the new plant-based trial pack.

That's 20% off plus free shipping on the either the bestsellers trial pack or the plant-based trial pack at moshlife.com/slash strict.

Thank you, Mosh, for sponsoring this episode.

We quilt this city,

With Quilted Northern, to be specific.

So cushy and so plushy.

Just give it a try.

Feeling it believing.

Quilted with three cushy layers for your comfort.

The quilted comfort of Quilted Northern.

We know it's comfy, and now you do too.

Keep it quilted with Quilted Northern.

Welcome back to Strict Scrutiny.

I am your host for this segment, Kate Shaw, and I am so happy to be joined for this conversation by my amazing colleague, Serena Maieri.

Serena is the Arlen M.

Adams Professor of Constitutional Law and a Courtesy Professor of History at the University of Pennsylvania Carey Law School.

And she's the author of the terrific new book, Marital Privilege: Marriage, Inequality, and the Transformation of American Law.

Serena, welcome to Strict Scrutiny.

Thank you so much for having me.

I am so excited to talk to you about this book.

So your first book, Reasoning from Race, is a fantastic history of the ways that the fight for sex equality in the 1960s and 1970s really drew on the civil rights movement strategies for pursuing racial justice.

So how did you decide to focus on marriage as the subject of your second book?

When did you have the initial idea?

And how did you begin to tackle the topic?

So we were really living in a different world when I started this project more than a dozen years ago now, really at the height of the Obama administration.

And it was a time when the marriage equality movement really brought to public attention how many legal benefits and privileges are associated with marriage, both in terms of public law and benefits.

So who's eligible for Social Security, tax, immigration and citizenship, health insurance, housing, workers compensation, employee benefits, you could go on and on.

There's so many different ways that the government distinguishes between people based on marital status.

And then there are a lot of people who are.

I'll just say before you go on, you know, from the kind of like from the inside the Obama administration perspective, we were wrestling with the litigation challenging the constitutionality of the Defense of Marriage Act, DOMA.

And so, yeah, like it is wild to realize that this federal law that said that marriage was just different sex for federal purposes implicated like a thousand different provisions of federal statute and regulation because that is how kind of imbricated the fabric of our law and conceptions of marriage are.

So I will just say from the inside, like that could not have felt more front of mind and front of kind of our politics and law in those early Obama administration years, right?

So 09 is when Obama comes into office.

2011 is when the administration announces it's going to stop defending DOMA.

So okay, that's essentially when you sort of have the germ of the idea to start the book.

Yeah.

And, you know, it's, I think that's both true at the federal level.

And it's also true.

I think people may be a little bit more aware of how it's true at the state level because people think of family law as being state law.

But as you're saying, you know, these are thousands of benefits that are all over the law.

It's really not just about family law, but it is also about family law and private relationships and who has financial and caregiving responsibilities to whom, both during their relationships and when they end.

And I think what has also been prominent really for

a long time now is

the idea and the reality that marriage increasingly over the past several decades has correlated with socioeconomic status, with education and income and wealth and race.

So I think that was a period of time where people were really focused on the fact that marriage is so associated with privilege.

And I guess as a historian of the 20th century U.S., it struck me that as recently as the 1960s and 70s, marriage had really seemed to be under siege.

There were lots of feminists and gay liberationists who really thought marriage should be abolished or at the very least dismantled.

It shored up capitalism and patriarchy and they were really strongly against it.

But when I started researching this book in the sort of early 2010s, it was actually college-educated professional women and to a large degree, kind of mainstream gay rights organizations that were most devoted to marriage, at least if you looked at the numbers of who's practicing marriage and who's championing marriage.

So while the law had changed in a lot of ways, it continued to privilege marriage.

And that sort of apparent disconnect caused me to wonder about whether people really had challenged the legal primacy of marriage in the intervening years.

And if they had, to what degree did they succeed and where did they fall short?

So it is this sweeping and really masterful history of these kind of challenges to and contestations around marriage.

And one of the things that you show early in the book actually is that marriage is at the heart of a lot of the cases that were critical elements of the legal campaign for sex equality that is, you know, spearheaded and very publicly associated with Ruth Bader Ginsburg and her litigation effort.

And that very much draws, as you've written about before and in this book, on the work of Pauli Murray.

So cases people might have heard of, Reed versus Reed, Frontero versus Richardson, Weinberger versus Weisenfeld.

They're sex equality cases, but they're all in some way about marriage as well.

And I actually found, it's not the main argument of the book, but I did find that thinking about these as marriage cases beyond just sex equality cases really sheds new light on them.

But as I said, the project is a lot more ambitious than that.

Like it really is about, I mean, this is at least my read on it, showing the way that marriage has been just absolutely central to law and policy.

So you talked about kind of benefits, but recognition and, you know, even things like full, complete membership in the polity.

Those things have really been bound up with marriage, both for individuals and especially women, and also for their children.

So, you know, you start to tell this story about marriage and all of its dimensions in the 1960s in the era of what you term marital supremacy as it begins to be kind of under challenge in the ways that you just referred to.

So, can you actually stop for a minute and define this term marital supremacy and then talk a bit about why you start your story where you do?

Sure.

So,

I began the story around 1960 in part because it's right around when marriage rates in the United States kind of hit an all-time high.

And it's really a time when people don't think of marriage as being under siege at all yet.

That's really still a few years in the offing.

It's also the height of what historians refer to as the New Deal welfare state, which privileges marriage in all kinds of different ways.

And at the same time, we're kind of on the cusp of these really transformative social changes brought about by social and legal movements for racial and economic justice, for women's rights, and so forth.

So I call the prevailing legal regime at this kind of mid-century point marital supremacy, largely because it was so intertwined with both white supremacy and male supremacy.

So New Deal legislation like the Social Security Act channeled the most generous benefits to families who were headed by, you know, breadwinning husbands and fathers and wives whose primary roles were to be homemakers and caregivers.

And then by contrast, households that were headed by single mothers received what was really an increasingly stigmatized set of benefits that people generally called and still call welfare.

And then at the same time, the law penalized non-marriage and non-marital childbearing in various ways that also were really intertwined with race as well as class.

So sex and cohabitation outside of marriage were illegal in most states.

Many states still prohibited interracial marriages.

Access to contraception and abortion was limited both by law and also by economic circumstances.

Women who became pregnant outside of marriage routinely lost their jobs and their livelihoods.

Lots of laws discriminated against non-marital relationships and families very overtly.

So non-marital children and their parents face discrimination in everything from child support to inheritance to Social Security and workers' comp.

And then at the same time, there's kind of a panic over rising rates of what people then called illegitimacy.

And that really intersected with resistance to the civil rights movement and to racial desegregation with lawmakers proposing all sorts of draconian measures against people who had non-marital children.

Can I interrupt for a sec?

Because I actually want to ask you to talk specifically about one of of the examples of this of what you were just talking about.

And it's actually the story that opens the book.

And I think it really shows kind of how intimately connected struggles for sex equality, for racial justice, and reproductive justice were, and also how the powers that be opposed all those things by deploying tactics that used marriage as this real cudgel to try to crush all these sorts of or, you know, retaliate against these sorts of assertions of rights and equality claims.

Okay, so that's the story set in Louisiana in 1960.

It's just pretty shocking if these are historical details that you're not familiar with.

So can you just kind of walk through that story?

Sure.

So in 1960, Louisiana purged tens of thousands of black families from the welfare roles, ostensibly because they had non-marital children.

but really in retaliation, as you were mentioning, for the civil rights movement's gains in desegregating schools in particular.

There had just been a major school desegregation ruling in New Orleans.

And this measure was part of a whole package of legislation sponsored by the governor that also included various other really draconian proposals that sort of traded on marital status to punish people and particularly black residents of Louisiana.

This caused an international outcry and also sparked a lot of local resistance.

Black mothers protested in New Orleans.

People were protesting as far away as Great Britain.

And it really inspired national organizations like the ACLU and the NAACP

and the LDF to think about the possibility for constitutional challenges to laws that discriminated against non-marital children.

Can I just, though, in terms of some of the details, so it was obviously this purge of tens of thousands of kids from welfare roles is a huge deal.

But if I'm not mistaken, both the legislation and some proposals that would have gone further actually had a lot more, right?

So you, you had, I think the the legislation that was enacted also required black men to disclose children they had fathered outside of marriage, barred women from voting if they had given birth while unmarried.

Also, a proposal would have, although this one didn't pass, made it unlawful.

to give birth in public hospitals if you were not married to the father of the child and to prescribe punishment of up to a year imprisonment for conceiving a child outside of marriage.

Am I right that some of that actually was enacted and other of it was proposed and seriously considered yes, that's right.

And that was not just Louisiana.

It wasn't even just the South, actually.

There were many, many proposals during the 50s and 60s that were very draconian in the ways that you describe sterilization, incarceration.

There's actually a story that I opened chapter two with, which I found somewhat surprising in a couple of different ways.

It happened in Maryland in 1967.

So, not, you know, not in the deep south.

A local prosecutor decides to arrest several young women and charge them with criminal neglect and threaten to take their children away simply for applying for welfare benefits for having a non-marital child.

And that was actually a case that I think the national organizations really hoped would go to the Supreme Court because it kind of crystallized all of the intersections that we're talking about between racial and economic justice and reproductive rights and rights to have children.

But it ends up getting decided on narrow statutory grounds in state courts and doesn't make it to the Supreme Court in the end.

One of the many things I love about the book is that there are a ton of these stories where you really kind of center the characters and the harms of the laws and policies in effect.

And sometimes they don't result in like big constitutional rulings.

Mostly they don't.

And so none of us know a thing about them.

And the book really does, I think, surface so many of those stories.

Okay, but in terms of whether or not they end up actually resulting in constitutional rulings, the book does focus on a lot of these challenges, brought in judicial fora to kind of the legal supremacy of marriage in various ways.

So can you talk just a little bit, either generally or with specific examples, about kind of who are the people launching these challenges and what they're, broadly speaking, trying to accomplish?

Sure.

So something that's really distinctive about this story, which is very different from my first book, which was largely about a fairly concerted campaign on the part of feminists to change the law.

There's no single social movement or organization that's devoted to challenging marital supremacy, right?

It's not like the NAACP legal defense funds campaign against racial segregation.

Some of the advocates and activists in the story did actively set out to undermine the centrality of marital status, but most of them, I think it's fair to say, really did that kind of incidentally as they fought for civil rights or economic justice or reproductive freedom.

So there were some repeat players.

The ACLU comes up a lot, but lawyers and advocates from various organizations and causes were really working on pieces of the puzzle without coordinating some broader strategy.

And it's also really a bottom-up story.

There were lots of individuals and families who challenged the legal supremacy of marriage basically because they found themselves ensnared by the law in various ways.

So

the book follows single mothers who challenge their exclusion from public housing or Social Security benefits or employment because they had children outside of marriage.

It looks at struggles over zoning policies that prevented people from living together because they weren't related by blood or marriage.

It talks about fights for domestic partnership for not just unmarried couples, but also extended and chosen family members.

Single fathers and gay parents are fighting for legal rights to the children they helped to raise.

One of the things that was really striking as I did the research for the book is how central people of color and LGBTQ folks are to the story

on both sort of the elite side of lawyers and advocates who are working on these cases and also ordinary people who are encountering the law and trying to change it.

So they're making a lot of really creative constitutional arguments in particular,

especially in the early part of this period.

And, you know, I found really fascinating characters.

One of the ones who stood out to me was a woman named Anna Floretz, who is an enlisted woman in the Navy who became pregnant and actually unfortunately suffered a miscarriage on what was supposed to be her wedding day.

And it turned out that she was going to be discharged from the military, even though she lost the pregnancy because of her immorality was the way they framed it.

And she basically said, you know, wait a minute, male male service members are allowed to go around having non-marital sex and nothing happens to them.

So how can you say that service women can be punished for doing the same thing?

And then she sort of lays groundwork for a later campaign where a group of black single mothers who want to join the army and air force are excluded because they're single parents.

And they also are making really creative arguments about how the policy not only discriminates against women, but also effectively effectively forces them to give up custody of their children in order to enlist in the military, which they say infringes on their reproductive freedom and their ability to make decisions for their families.

And even some of them, after they've enlisted and undergone training and things like that, they're all of a sudden like hit with this information that they need to hand custody over to a mother or a sister or a family member if they want to continue this career path that they've sometimes, at least in some of the cases, already started down.

Yeah, there's a really interesting, I thought, juxtaposition of two sisters who one of whom is married and the other of whom is not when they enlist.

And one of them goes on to have a great military career and the unmarried sister ends up not being able to continue.

And she says, like, just that's what my trajectory could have looked like if I just happened to have been married with a kid instead of unmarried with a kid.

So obviously hard to generalize, but you talk about the courts taking up challenges to these laws selectively, as you mentioned.

Like some cases are, you know, never the subjects of big lawsuits at all, and some of them end up resolved on some statutory grounds or petering out for some other reasons.

But if you can talk in general terms about what kinds of claims tended to succeed and which ones faltered, you know, since you've obviously taken this 30,000-foot look at this kind of area of law over the decades, what did you see?

So there really were some very strong patterns in what I found.

So courts most often were sympathetic to plaintiffs when they saw the victims of marital supremacy essentially as innocent children punished for their parents' sins, right?

So many of the, by the end of this period, many of the most severe legal discriminations against non-marital children are no longer constitutional.

But it's a really different story when it comes to discrimination against adults, right?

we know marital status discrimination against adults doesn't get heightened constitutional scrutiny and the government really retains the prerogative to privilege marriage.

And it does so, as we've been talking about, in all kinds of different ways to this day.

The other way that the law really does change and advocates succeed is in making marriage itself much more formally equal.

So feminist campaigns against male supremacy within marriage,

at least as a formal matter, are largely successful.

But, you know, in contrast, the story is very different for non-marital partners and parents.

So laws still distinguish between unmarried mothers and fathers.

And in most states, non-marital partners are left often with nothing after the dissolution of a relationship because most people don't contract around the sort of default rules in this context.

And then another important part of the story, which really plays out in all sorts of different venues and doctrines, is that the law comes to rely less on formal exclusive categories like marital status or genetic relationships and more on functional definitions of the family.

So, parents come to have essentially the same obligations to support children, whether they're born outside of marriage or within marriage.

In most states, at least in theory, you no longer lose custody of your child just because of sexual orientation or non-marital sexual conduct.

Teachers can't be fired simply because they have a child or cohabit outside of marriage.

But in all of these circumstances, a functional standard basically replaces this formal exclusion.

So to fire a teacher, you have to show that their sexual conduct affected their job performance, or to lose custody, your non-marital activity has to have harmed your children in some way.

But it turns out, maybe not surprisingly, that what affects your job performance and what harms children, you know, are very subjective.

And these legal standards end end up kind of smuggling in many of the same biases.

And functional standards more generally often require the state to kind of intrude into the family to determine whether or not partners or parents look enough like a traditional family to qualify.

So that's another theme.

The final theme that was really striking in a lot of different contexts was that the law tended really to adopt functional definitions and standards primarily when they privatize economic support within the family.

So, in some ways, there's kind of a recognition that privileging marriage isn't really working to push people into marriage.

So, in situations where the state otherwise might be on the hook for providing support, functional definitions are more attractive.

Right.

That's convenient.

Yeah.

That's yeah.

And this kind of like complex underbelly of functional standards, right?

Like obviously, they seem preferable to kind of formal legal inequality and subordination.

And I don't think you disagree that they are, but that all of these retrograde assumptions about the proper shape of a family are often part of this functional analysis, even though it has technically changed.

So I want to ask you about a couple of cases that...

Again, among other things, I really kind of learned a lot about the backstories of.

And the first, because you sort of mentioned zoning, and the book actually has a lot about zoning of all things, but it sort of makes sense.

We're talking about the law's treatment of family arrangements.

And it turns out that like, you know, marriage and single family zoning as an exclusionary tactic are very closely connected for much of the period that you're writing about.

So an important case on this topic is Moore versus City of East Cleveland.

So can you talk a little bit about Moore?

Sure.

So Moore was a case about a grandmother who had taken in a second grandson.

She was caring for one grandson and living with a number of other relatives.

She took in a second one of her grandsons after the death of his mother, but that ran afoul of the local zoning statute, which actually criminalized her for taking in her second grandchild.

Literally made her a criminal for taking in her grandchild after the death of her child and that grandchild's mother.

Like, it is wild.

Yeah, no, it's

really an incredibly striking and kind of poignant situation, needless to say.

The court ends up deciding in her favor and making some pretty important

statements about the importance of extended family and the extension of a substantive due process right to live with one's extended family in certain circumstances.

One of the things that I found striking was that a number of other people I talk about in the book sort of picked up the more ruling and used it in various ways.

So we were talking earlier about the single mothers who challenged their exclusion from the military.

One of the arguments that they made actually was that the tradition in particularly black families and other families of color and immigrants of relying on extended family care would enable single mothers and single parents generally to make sure their children were taken care of while they were off deployed or otherwise engaging in military service.

And they used more as part of their constitutional arguments in those cases.

Okay, another canonical Supreme Court case that I feel like I learned a bunch about, kind of the backstory of in your telling was Moreno, which is a case that people might be somewhat familiar with for the rule that, you know, what the court describes as animus, right, like a bare desire to harm a politically unpopular group, cannot supply the sole reason for government action.

So what else don't people know about Moreno that the book walks through?

So USDA versus Moreno is kind of a case that involves an amendment to the Food Stamp Act that restricted receipt of food assistance to people who were

only to people who were related to one another.

And it's kind of thought of as a case,

as you mentioned, about the bare desire to harm a politically unpopular group, the politically unpopular group in this case being hippie communes, which is actually the language that they use.

It's kind of humorous.

The pleatists in the case were pretty carefully selected by the ACLU and the other organizations who who were bringing the case.

They were a diverse array of people who were living together, all of them banding together more or less because of poverty or need in some way.

The name plaintiff, Ms.

Moreno, was a migrant worker who was disabled by diabetes.

Another family had taken in a troubled teenager.

And these were the kind of heart-rending stories that ended up making it into the Supreme Court opinions.

One of the things I was interested to see was that there were also other plaintiffs in the case, two young men living together as roommates to save on rent.

There was a group of college students who had left home, seemingly because of political differences with their parents.

And one of the themes that I use the case to illustrate is how plaintiffs won

largely when they could frame themselves as kind of impoverished and desperate.

Courts were much more reluctant to accept the broader freedom of association arguments that a lot of these plaintiffs were making.

And the similar generalizations apply to many of the zoning cases that I talk about in that chapter, too.

So I think those are both kind of useful illustrations of the capaciousness of the sort of topic and the sets of questions around kind of government treatment of various kinds of family and housing arrangements.

But maybe back to marriage specifically, there are some pretty seismic demographic changes that you alluded to when we first started talking kind of during the period that you cover in the book.

And particularly relevant is the marriage gap.

So, can you say more about the marriage gap and the kind of changes that we see play out during the course of the decades that you're cataloging?

What's sometimes called a marriage gap really increases fairly dramatically in the second half of the 20th century.

So, a few numbers that can help to illustrate this.

In 1940, about 60% of adults, regardless of race, were married by 2000.

It's 50% among white Americans Americans and about 30% among black Americans.

One of the most striking statistics to me is the way women with college educations really sort of flip their relationship to marriage.

So in 1960, women with a college education were really significantly less likely to be married than other women.

Whereas by 2000, women with a college degree have the highest marriage rates.

And marriage among female high school graduates falls from 75% in 1960 to barely over half with only 35% of women without a high school diploma being married as of 2000.

And then you see also really dramatic changes in births outside of marriage, which increased from 5% in 1960 to about 33% by 2000.

And then they've recently leveled off somewhere between 40 and 50%.

And these rates are very stratified by socioeconomic status and wealth.

And since class and race are so intertwined, the racial disparities

are also very large.

So by the end of the period you're writing about, and maybe more today,

it's, you know, marriage ends up in kind of, you know, children being primarily born within marriage ends up being this very elite undertaking, or at least disproportionately.

socioeconomically and kind of socio-educationally.

And it does, I think, raise questions about kind of what constituency for kind of additional reform to the institution of marriage, which is obviously not serving a very significant portion of the population or not viewed as serving, and sort of what work remains to be done in terms of providing actually structures of care and support for individuals who opt out of marriage.

So I guess that's kind of maybe a present inflective question.

Maybe let me step back for a minute and just ask, and maybe you can answer this question both with respect to the history and maybe kind of now.

These fights about marital status were, as you tell it, this kind of principal terrain for kind of radical visions of feminist and anti-poverty and racial justice and civil libertarian and LGBTQ plus movements.

I mean, as you said a few minutes ago, there is not one single movement or overarching vision about what kind of reform or abolition of marriage as an institution should look like, but there are these really interesting alliances that emerge at various points in the story.

And so I guess, you know, again, historically or whatever we can learn today from this history, sort of how did did these diverse groups of advocates work together and sometimes at odds in broadening or redirecting the conversation about, you know, not just marriage, but kind of families, care, recognition, and rights?

Sorry, that's a big question, but sort of take any cut at it that you want.

Sure.

So

I think, you know, one thing that, as I mentioned, is really striking is the degree to which people of color in particular really lead both as lawyers and advocates and activists and community organizers and also as plaintiffs and people who are sort of directly affected and come become involved in these efforts by virtue of their their individual experiences.

And

that's really striking in a lot of these different areas.

It's also the case, particularly toward the end of the period I'm talking about, but also earlier on, that LGBTQ folks are, you know, not surprisingly, also deeply involved in a lot of the efforts to expand the definition and and protection of different kinds of families.

One of the, I guess, really interesting places where those two stories intersect has to do with the effort to expand domestic partnerships in a few different cities, but particularly in Washington, D.C.,

in the early 1990s.

And you see just really interesting coalitions between largely Black civil rights and feminist actors in Washington and the sort of LGBT rights or really gay and lesbian rights organizations who are fighting for these more expansive definitions of family.

And what they're essentially arguing is they're saying, look,

this is not just helpful for same-sex couples or people who aren't able to marry, but it's also really helpful to communities where extended family care and other kinds of non-marital collections of individuals are caring for and supporting each other and could really benefit from some legal protection and recognition in order to do that.

So, obviously, talking about the kind of domestic partnership efforts in D.C.

and elsewhere is a good segue to kind of marriage equality and the litigation campaign, actually, to get the right to marry someone of the same sex recognized under the Constitution.

Obviously, that is, you know, a story that is part of, but in no way the entire story of your book.

But in general, like, how would you say briefly, marriage equality, both the push for it and then the recognition and achievement of it in the Supreme Court has changed the landscape?

Yeah.

So as you said, marriage equality plays a role in the book, but is definitely not at the center of it.

But in some ways, it ends up being kind of the culmination of a lot of the trends that I'm tracing in the book.

One of the most obvious is just the removal of sex-based distinctions from the law of marriage.

Marriage equality is kind of the apotheosis of that development.

And marriage equality, of course, feels threatening to traditionalists in part because it calls into question the idea that men and women, husbands and wives and mothers and fathers have fundamentally different roles to play in the family and in society.

And giving people the ability to marry regardless of sex, you know, really unsettles these assumptions in ways that most of the folks in my book who valued greater freedom to choose different life paths, you know, had reasons to celebrate.

Marriage equality also symbolizes the persistence of marriage as this key source of public and private benefits.

And the book describes how feminists and LGBTQ activists and others disagreed profoundly over all of these years and of course still do about whether marriage is worth saving and worth

expanding to become more inclusive.

So should we reform marriage from within or really more directly challenge the channeling of all these benefits through marriage and family relationships rather than giving benefits to individuals, you know, kind of regardless of family status?

But I think it's fair to say that, you know, given that marriage does occupy this very central place in our legal system, there's a fair amount of agreement amongst both critics and champions of marriage equality, kind of from the left, that access to marriage is really essential to equal citizenship.

So, post-marriage equality, but with these relatively low levels of uptake of marriage as an institution, in particular among communities of color and lower-income populations as compared to other segments of the population.

Like, what is the status of marriage in the legal system today?

And then, I want to ask about how the history you canvas in this book speaks to our current moment.

But what is the status of marriage today?

So, I think it's fair to say, you know,

it's complicated.

Because courts fail to see marital marital status discriminations against adults as a constitutional problem and preserve the government's prerogative to privilege marriage, there still are all of these federal, state, and private benefits that are tied to marriage.

And those continue to disproportionately redound to the detriment of the communities that you mentioned.

At the same time, you know, I think it's also important to note that some states and localities have continued to experiment with more expansive definitions of of family.

Functional definitions of parenthood are flourishing in various contexts.

So, for example, the most recent version of the Uniform Parentage Act, which is kind of a uniform law proposal that's now been adopted in several states, that the latest version, which was promulgated in 2017, it really attempts to make parentage law neutral as to marital status as well as neutral as to sex and give people a lot of different routes to parenthood besides just formal categories like marriage and biology.

There are a small handful of localities experimenting with domestic partnerships for more than two adults.

And during COVID, for example, we saw some really

important experimentation at the federal level with the child tax credit, which was a direct subsidy to families that was not based on marital status and really went beyond a lot of what I think people thought possible up to that point.

So, you know, I think it's also fair to say that arguments about marriage really remain at the center of our political conversations about what kinds of families the government should support and promote and what kind of society and polity we want to have.

All right.

So that is a perfect segue.

So, you know, how

does

this history speak to the current moment, right?

We are in an administration, in a political moment where the governing coalition is very committed to a very particular and quite retrograde vision of the family.

I think both kind of through its rhetoric, but also its substantive policy vision.

How does the history in your book shed light on the present moment?

So as you mentioned, you know, there are all of these policy proposals floating around

about rewarding marriage, you know, in everything from transportation funding to tax credits to medals of motherhood and so forth.

I think Also, it's important to note there are a lot of competing visions, even on the right, about what the right family structure is.

There's the kind of

white Christian nationalist patriarchal idea of family and then there are other views like versions of pronatalism that don't prioritize marriage.

I guess I would say that the questions that my book addresses are very unsettled today.

When I completed the book right before the 2024 election, you know, the main point of rupture that I was contending with was the Supreme Court's decision in Dobbs to not only rescind the constitutional right to abortion, but also call into question all of these other really key constitutional rights.

So definitely a point of rupture in that regard, but also I think some of the continuities are striking.

So a lot of the precedents that

I think we took or at least I should say I took for granted when I started writing this book more than a dozen years ago, you know, Griswold versus Connecticut, Eisenstadt versus Baird, in addition to Roe and Casey and Lawrence Nobergefell.

These precedents all have, you know, real limitations.

And in some ways, Dobbs kind of extends the experience of many people of color and women living in poverty in rural areas and makes the lack of access to reproductive justice a more widespread problem.

And we still have these competing visions all across the political spectrum about the relationship between law and family structure and the government's role.

And that continues, I think, to be so

not just on the right, but really on the left and center, which is kind of the focus of my book.

And you really see those disagreements playing a large role in how we frame what the government should be doing to support or not support different kinds of people.

Yeah, so a series of kind of like unsettled questions and debates that are, you know, on display throughout the decades that you're writing about, but kind of remain unsettled and contested today.

I mean, there is a ton that we didn't get a chance to cover, both things like the changes in the law of divorce, which you talk a lot about, and that's actually obviously really important to the kind of transformation of marriage, but also like the fights and fissures within kind of both reform and more radical kind of components of the various movements that you are writing about.

So, you know, it is a story that is very specific, but also, I think, is broadly true about kind of any social movement.

There are many, many versions and visions of what change should look like.

And, you know, ultimate victory may be elusive because not everybody agrees about what that is going to look like, but it is an unfinished story and we are all just living in it.

So, to get all of the rest of what we didn't get a chance to cover in this conversation, you will need to read the book, which, once again, is Marital Privilege, Marriage, Inequality, and the Transformation of American Law.

It is absolutely masterful.

I am sure it will be read and taught for many years to come.

Serena Maieri, thank you so much for joining me to talk about it.

Thank you so much for having me.

It's really been a pleasure and a privilege to be with you.

With big thanks to Ellie and Serena for joining the show, let's finally turn to our favorite things.

Leah, what sparked joy for you this week?

So one is late breaking or real-time breaking, which is as we were recording, it's been reported that Kilmar Obrego-Garcia has been released from prison and is now free, which of course is a very important, welcome development in that horrific saga.

Also, wanted to reiterate a recommendation I made earlier up top: Steve Laddock's Substack won first, just the whole thing, right?

Incredible resource.

Also, Julianne Long's Penroyal Green series, historical romance coupled with mystery, super fun, really enjoying it.

And it's also been one of those series where, like, the later books get even better.

Also, Lori Levinson's review of my book, Lawless, in the LA Review of Books, was just extremely generous.

And, you know, at the end of summer, kind of going back to school, it was just like a really wonderful thing to read, just like looking back on, you know, kind of like the book stuff from earlier in the summer.

Also, finally, someone liked my sense of humor and jokes.

So there you have it.

It was a great review and deserved.

Okay,

can you see my nails?

They're mostly pink.

One is one nah.

And there's, wait, what's, I can't tell what's on your thumb.

It looks like a Thanksgiving turkey, but I can't.

Okay, so my nails are awesome, and four of them are orange, and the thumb has the flaming heart emoji.

Kate, do you know what this means?

I do.

I asked Kate.

Is it a Taylor reference?

It is.

As the person who said, I am all up on Taylor last week.

I decided to test you.

But I don't know what it is.

I literally, that was a guess.

What is it?

The colors from the album.

Thank you.

I thought it was orange.

Well, yeah.

I just told you.

No, it's orange.

That's orange.

A four-color orange.

And the funny part emoji is the emoji that Taylor and Taylor Nation have been using to talk about the album.

Oh, see, yeah.

Look, I didn't say it was all up on Taylor Nation.

I was familiar with like, she's got an album upcoming.

I know the music.

Taylor Nation.

I bet your nails are finger colored.

They're finger colored or funny.

I bet they're the color of my fingers.

They're finger colored.

One last thing.

Seeing the finish at the recent open water swim race I did, the Swim to the Moon 10K was just amazing.

I wanted to do the race just as a kind of culmination to mark the recovery from the elbow accident and finishing it was just like the best feeling in the world.

So

congratulations.

Fucking fast.

That is so badass.

Seriously.

I loved it.

Gotta be fine.

Even with that fight the patriarchy in whatever form that fight takes.

You got to swim from them or toward them and you're going to be ready.

You don't know.

Yeah.

It's true.

I think I need to get my swimming training on.

All right, I've just got a couple things to shout out.

One, Rick Hassen had a great piece in The Times last week about Trump's latest foray into elections aversion, which we were just talking about.

Really good piece.

And I also listened to Kim Lane Shepley at a really bracing lecture at the Chautauqua Institute.

I did that lecture last year.

It's the Jackson lecture.

Melissa did it maybe three years ago.

And she did.

On Zoom.

It's not the same.

I know.

They got to get you back in person.

It really is an amazing place to go give a lecture to in person.

So you've done one, but in person still to come.

For my dining room, it was not the same.

I don't want to think about that time at all, actually, truly.

But anyway, it's available on YouTube, and it's a great hour of your time.

So, my favorite thing is just being back here with you guys.

I feel like it's really

nice.

I know.

It's super nice.

Super, super nice.

I did read some books while I was gone.

I know I mentioned Atmosphere, Leah, to you, maybe

on an episode earlier that I got in the book, but I finally read it and it is amazing.

Love, love, love it.

I also read Commonwealth by Ann Patchett.

This is my follow-up.

I'm in my Ann Patchett era.

I read Tom Lake and I'm reading

Commonwealth is great.

Wait, you read Tom Lake?

You didn't listen to Meryl Streep, did you?

I did listen to Meryl Streep.

I did.

On Elena Kagan's suggestion, I listened to Tom Lake, the audiobook, but then I realized like it was great, but I don't love audiobooks.

I actually like coming up with the ideas myself.

So I read the book and I actually think I liked it better reading it, although Meryl Streep was wonderful and an amazing narrator.

I also am getting a lot of

Schadenfreude insane pleasure from the way that MAGA is absolutely melting down over this Cracker Barrel rebrand

first of all folks like I'm from the south like cracker barrel is some mid fucking level southern food like you can do I can do better and I don't even like cooking okay I can do I can make biscuits that are better than those and the fact that people are losing their minds over this like cracker barrel is where they're gonna like the hill that they're gonna die on michael our assistant producer told me that someone said they found jesus in the parking lot of a cracker barrel uh

concluded byron donald said i even gave my life to christ in their parking lot okay byron donald that totally tracks that um florida never changed never changed florida so i i just don't get it like every time i go into a cracker barrel i just feel like This is what it's like to go to dinner at someone's house when that person is a hoarder.

Like everything is just so much stuff and there's just like all all the stuff and like you know live love laugh thing i'm like i love i should say like i don't object to having very deep attachments to chain restaurants like i love arby's and cheesecake factory right pizza hut in the 1980s that bucket shit i that is my

but yeah this is a real choice here i'm just like just like let it go it's like like they're it's a branding decision they're just trying to like they're not trying to be woke they're just literally trying to survive in a competitive environment where there are other fast casual chains that are eating their lunch.

Let these people live.

Like, let them live.

Anyway, they just love to be mad.

They do.

They do love their resting state.

They really do.

I'm just like, this ain't it, kids.

This ain't it.

Anyway, so I also loved the finale of the Gilded Age.

Props to Sally Whitfield Richardson and Erica Armstrong Dunbar.

Amazing season.

Absolutely loved it.

And then finally, I received my shipment of the other MMs rose, the as ever wine.

And I have to say it was actually very good.

All day, all day.

It really was.

I think you have to serve it especially cold, really, really cold, but very, very satisfying.

Would recommend.

And then I just want to say thanks for saying hi, all those stricties in the wild that I saw.

I saw a bunch of you in Martha's Vineyard.

Thanks for listening to the show.

I was on a United flight and some of the flight attendants attendants were stricties and they were very nice.

Nice to see you guys.

Thank you so much for listening.

We really appreciate it.

All right, let's close this bad boy out.

Land this emolument plane, if you will.

Let's do a little housekeeping.

Shadow Kingdom is back with season two, Cole Survivor.

This true story follows host Niccolo Majoni as he revisits one of the most infamous union corruption cases in U.S.

history, the United Mine Workers of America.

It all begins with Tony Boyle, the most powerful and corrupt labor leader in the country.

When reformer Jack Jablonski decided to challenge him in an election, Boyle made a deadly decision to permanently eliminate his rival and his family.

Featuring exclusive interviews with Chip Leblonsky, Joseph's son, and the sole survivor of the Jablonsky family murders, and Ralph Nader.

Yes, that Ralph Nader, plus first-hand accounts from those who lived it, Shadow Kingdom, Cole Survivor, is the political thriller you can't miss.

The first two episodes are out now.

You can listen on the Shadow Kingdom feed wherever you get your podcasts.

Or better yet, Friends of the Pod subscribers can listen to the full season of Shadow Kingdom right now.

Just join friendsofthepod at crooked.com forward slash friends or subscribe through the Shadow Kingdom Apple feed.

Strict Scrutiny is a crooked media production hosted and executive produced by me, Leo Littman, Melissa Marie, and Kate Shaw, produced and edited by Malody Rowell.

Michael Goldsmith is our associate producer.

We get audio support from Kyle Seglin and Charlotte Landis.

Our music is by Eddie Cooper.

Production support comes from Madeline Herringer, Katie Long, and Ari Schwartz.

Matt DeGroote is our head of production.

And thanks to our digital team, Ben Hethcote and Joe Matoski, our production staff is proudly unionized with the Writers Guild of America East.

Subscribe to Strict Scrutiny on YouTube to catch full episodes.

You can find us at youtube.com/slash at strict scrutiny podcast.

If you haven't already, be sure to subscribe to strict scrutiny.

In your favorite podcast apps, you never miss an episode.

And if you want to help other people find the show, please rate and review us.

It really helps.

Jen's the mother of two teens her online shopping cart is always full of amps and auxiliary cables so you might think she's funding her kids garage band but what you don't know is she's actually the one shredding on stage With TransUnion's 360 degree view of consumer identity, you can get a clear picture of your marketing audience and reach people like Jen with messages that are more headbanger, less homebody.

See how TransUnion is bringing clarity to marketing chaos through deeper insights, smarter reach, and precise measurement at transunion.com slash clarity.

Comcast Business High Five Hotline.

I signed my business up for the five-year price lock guarantee, and I can't stop high-fiving people.

That's perfectly natural when you sign up for Gig Speed Internet and Advanced Security, locked in at a great rate for five years.

Really?

That's great news.

High five, everybody!

The Comcast Business five-year price lock guarantee is back, but only for a limited time.

Sign up today.

High five!

Ends 9-21-25 for new customers with qualifying bundles.

Current customer eligibility varies by service and area.

Guaranteed rate applies to the monthly service charge, excluding taxes and fees.

Our restrictions apply.