Stacking the Bench with Creeps & Kooks

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Mr.

Chief Justice, may it please the court.

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

She spoke not elegantly, but with unmistakable clarity.

She said,

I ask no favor for my sex.

All I ask of our brethren is that they take their feet off our necks.

Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it.

I'm your host for today, Leah Whitman.

As part of our rotating summer respite schedule, I am delighted to be joined today by a very special guest co-host, someone who is much requested on the Friends of the Pod Discord channel, and someone whose writings are often part of our favorite reads of the last week segment and that is mark joseph stern senior writer at slate and co-host of the amicus podcast basically one of your favorite legal podcasters favorite legal podcast team welcome to strict scrutiny mark thank you so much what an absolute honor and a delight to be here with you even in the doldrums of summer when the news cycle seems to be slapping us on the face with a wet fish every single day that is accurate dot gif so the focus of this news topper is going to be a little fishy and that's going to be what's going on with the lower federal courts and how the Trump administration appears to be engaged in a weird hackathon, attacking and undermining judges who follow the law while at the same time confirming judges who will do no such thing.

That's the topic for today.

Before we dive into that, though, I wanted to offer a brief follow-up on a topic Kate and I discussed last week, and that's Le Ferre Epstein.

So as we noted, Ghelene Maxwell completed the briefing in her request to have the Supreme Court vacate her conviction and sentence.

And that request, her petition for sertiorari, was docketed for the Supreme Court's long conference at the end of September.

So that's when the court will consider that.

In the meantime, the New York Times has reported that Maxwell was recently moved to a minimum security women's prison in Texas.

So something appears to be in the works.

And as we were recording, Allison Gill broke the news, which NBC and MSNBC confirmed, that in order to transfer Ghelaine Maxwell to a minimum security facility, the government had to waive her status as a sex trafficker/slash sex offender because ordinarily that designation would prevent the government from placing her in a minimum security facility.

One wonders what she gave to the number two official at DOJ, Trump's former personal lawyer, in order to get that, or maybe she's blackmailing him.

Unclear.

Mark, what did you make of that news?

So this reminded me of something, and at first I couldn't quite place it.

And then I remembered that in 2019, Trump's Justice Department and his Attorney General William Barr intervened to try to help Paul Manafort

not be sent to a worse prison, potentially Rikers Island in New York.

The Justice Department filed a very strange letter with the authorities, essentially saying that Manafort deserved special treatment, that he shouldn't be transferred to a different facility, that he needed, because of his health, to stay in a nice kind of cushy place.

And he, you know, he was a special guy who deserved special care.

That was, I think, in some ways, like a precursor to what we're seeing with Maxwell.

Like this administration knows all of the tools that it can use to help the people it wants to help and hurt the people it wants to hurt.

We're mostly used to seeing them hurt people, but I fear that this is an example of the Trump administration trying to help Maxwell by saying, hey, we're going to transfer you to a better prison, a facility that you want to be in in exchange for what?

Well, we don't yet know.

I don't think it's difficult to guess that the Trump administration wants Maxwell to testify that a bunch of Democrats were running a sex slave cabal or something along those lines.

And I think the...

While Donald Trump is totally innovative.

innocent.

Totally, completely innocent.

And this government also knows that a pardon for Maxwell probably isn't going to look so good.

Or a commutation also not going to play so well with the masses.

So what tool do they have at their disposal?

Will they have a prison transfer?

And lo and behold, they've already done it.

And Manafort's prison transfer was in advance of a pardon.

So I wouldn't go so far as to rule that out completely.

Not at all.

And I would just note, like, there's a real possibility that there's a guarantee of a pardon on January 20th, 2029.

Whether Trump would follow through on that is an open question.

It's not like it it would be binding, but I could absolutely see that kind of corrupt bargain being struck.

For sure.

So, part of the reason why I wanted to follow up on this topic is over the last week, Trump somehow managed to sink to a new low on Epstein matters when he referred to one of Trump's victims as property, his property, since she had worked in his spa.

So we are going to play those clips here.

Mr.

President, look, Epstein has a certain reputation, obviously.

Just curious, were some of the workers that were taken from you, were some of them young women?

Were some of them young women?

Well, I don't want to say, but

everyone knows the people that were taken.

And

it was the concept of taking people that work for me is bad.

But that story has been pretty well out there.

And the answer is yes, they were.

Yes, they were young.

Yeah.

What did they do?

In the spa.

In the spa.

Yeah, people that work in the spa.

I have a great spa, one of the best spas in the world at Mar-a-Laca.

And people were taken out of the spa, hired by him.

In other words, gone.

And

other people would come and complain, this guy is taking people from the spa.

I didn't know that.

And then when I heard about it, I told him, I said, Listen, we don't want you taking our people, whether it was spa or not spa.

I don't want him taking people.

And he was fine.

And then not too long after that, he did it again.

And I said, out of here.

Mr.

President, did one of those stolen

persons that include Virginia Giffrey?

I don't know.

I think she worked at the spa.

I think so.

I think that was one of the people.

He stole her.

And by the way, she had no complaints about us, as you know.

None whatsoever.

I mean,

what to say here?

It's violent, painful misogyny that is repeatedly on display.

And in any sane administration, this would be a damning scandal.

You know, like the woman, Virginia, left Trump's employee well before Trump severed ties with Epstein, and therefore well after Trump knew Epstein was cultivating and grooming underage girls.

The idea that Trump would be enraged that someone hired a random masseuse at one of his hotels is insane, unless the person wasn't a random masseuse and had some other role.

And the fact that this is all happening as he is considering pardoning a sex offender, right, who was complicit in and engaged in an abuse of these girls is just Trump.

So now that that you are all up to speed on that, we are going to switch to our topic of the week, which is the administration's two-pronged attack on the courts.

So the first piece of that is the attacks on judges who are, you know, trying to do their jobs, enforce the law and whatnot.

The second piece is stacking the courts with hacks.

So first, the attacks.

We could spend an entire episode and more on this.

So I should say that on this week's Amicus Plus segment, released Saturday, Mark and I have a longer conversation about some of these examples and others we just don't have time to cover today.

So be sure to check out that episode to get the full picture.

And if you want to learn more about this general matter, a new organization called Speak Up for Justice is trying to raise awareness about the attacks on judges.

They held an event last week at which several federal judges spoke, including Judge Esther Salas, whose husband was shot and whose son, Daniel Andrell, was killed by a right-wing lawyer who went to their home.

You can access that event online at their website, speakupforjustice.law.

As part of the event, the group played one of the more more than 400 vile calls made to a single judge's chambers after the judge ruled against the administration.

Here's the voicemail.

Better tell little motherfucking Judge McConnell, I don't know who the hell he thinks he is, but he's stepping way over his motherfucking boundaries.

So I double Barry, you motherfuckers, I double buried.

Tell the judge, give me a call back, okay?

My phone number is

and my name is,

okay?

And tell the son son of a bitch we're going to come for him his ass is going to prison I double dare you to try to put charges on Donald J.

Trump you son of a bitch okay you will get your asses rooked okay I will slap the fucking shit out of him okay I'll slap your face to your face motherfucker Because you know what, motherfucker?

Your ass is going to go to prison, okay, son of a bitch.

And I wish somebody will fucking assassinate your ass.

Somebody needs to fucking wipe his ass out.

Fucking stupid son of a bitch.

Your ass is going to go to prison, McConnell, you little fucking punk.

Okay, you damn white son of a trashy bitch.

There were also six credible threats to that judge's life.

Multiple judges have had pizzas sent to their home or chambers under the name of Daniel Andrell, Judge Salas's murdered son.

I mean, Mark, what do you make of this this effort to draw attention to this phenomenon?

I absolutely laud the effort.

I think it's overdue.

I think it's unfortunate that only a relatively small number of judges have stepped up and been willing to defend themselves and their profession against these violent threats and attacks.

It's something you would ideally see many, many more members of the judiciary stand up for, but I fear it's becoming coded as a kind of partisan thing.

And to that end, you know, when you played that clip of the threatening voicemail, what struck me is that it's not really that different from what we hear from administration officials really maybe a little bit more profanity a few more direct threats but this is pretty much what stephen miller is saying this is pretty much what mike davis a self-proclaimed spokesman for the administration with very many ties to it has been saying on the internet you know this is the kind of rage that these maga people have been trying to foment against judges And it should be no surprise whatsoever that there are crazed, deranged, violent people people out there who are taking them seriously and literally.

In fact, that seems to be almost exactly what this administration wants to happen.

You know, obviously, I can't prove that.

I'm not saying they want these judges murdered, but they aren't doing anything to take down the temperature, even as they see that these judges' lives are under threat.

And this is also part of the context in which the Supreme Court's shadow docket madness and birthright citizenship case were issued, an environment where an administration is beating the drum about the illegitimacy and bias of rulings against them and you know to a base that it knows is radicalized

so you know another recent element of the attack on judges was a misconduct complaint that attorney general pamela joe bondi filed against chief judge bozberg the chief judge of the district court for the district of columbia you know a court that's really at the center of a lot of cases against the administration and the judge who ordered the government to turn the planes to the salvadoran torture prison around which the administration defied so mark can i get a super quick synopsis of that?

I don't even know what to call it.

It's barely even a complaint.

It's more like a screed scribbled down on a yellow pad and somehow turned into text that was filed with the DC Circuit.

So it looks real, but its substance almost doesn't even exist.

Because this allegation here is that Judge Boesberg engaged in, reflected, showed proof of bias against the Trump administration when, at a meeting meeting of the judicial conference several months ago, he relayed concerns to Chief Justice John Roberts that some of his colleagues were worried that Donald Trump would defy court orders and precipitate a constitutional crisis.

Something that indeed happened in Judge Bozberg's own courtroom when,

as you mentioned earlier, right, in the Alien Enemies Act case,

the government lied to Judge Boseberg and refused to turn around planes that were unlawfully deporting migrants to El Salvador.

So Boseberg's colleagues were quite prescient, and Boseberg raised this in a private forum, a meeting among judges.

And yet, this screed claims that this was a public statement, which it literally was not under any definition of the word, and that somehow Boseberg must have held the beliefs that he, according to this report, attributed to his colleagues.

And I just want to be clear: we don't know exactly what he said.

We don't know exactly what went down behind the scenes because we're going off of an article in The Federalist, which is this right-wing rag that just constantly runs interference for the Trump administration.

As far as we know, this could all be made up.

So what the administration has filed here is total hearsay about a judge doing his job, relaying the concerns of his colleagues behind closed doors.

And the administration is claiming that it's evidence of bias and that Judge Boesberg must now be removed from cases involving Trump, including the case in which he is threatening to hold Trump officials in criminal contempt.

Yeah, so Mark and I talk more examples of the administration undermining lower court judges and more about the complaint against Judge Boesberg on this week's amicus.

So if you want more on that, make sure you are listening to Slate Amicus episode, including the Amicus Plus segment for Slate Plus subscribers.

And this is really the second part, part dieu, if you will, of, as you called it on Amicus, the most ambitious legal podcast crossover event in history.

I am personally thinking of it as a second act in our audition for our two-person legal commentary show, or at least audition for an invitation to perform said commentary show on some show near you.

But back to the comment.

Okay.

So, you know who really understands how hard district judges have it?

Who?

Brett Kavanaugh.

So yeah, he said at the A Circuit Judicial Conference in conversation with his former clerk, now judge Sarah Pitlick, quote, the judges have difficult jobs, face a lot of pressure to get it right, face a lot of criticism.

And I just want all the judges in the room to know how much I appreciate what they do.

It's a lot to deal with all the things that are coming at you, end quote.

You know, one of the things that is coming at the lower court judges is all of the Scottish shadow docket interventions.

Kavanaugh also insisted that he is, quote, aware, end quote, definitely pays attention to the ocean of criticism and critiques out there.

Mark, is he the latest friend of the pod or pods?

So I struggle to believe that he is actually paying attention to the ocean of critiques because we know that this is one of the most thin-skinned people to have ever served on the United States Supreme Court.

We know that he does not take criticism very well.

And so the idea that he is voluntarily absorbing all of this criticism in like a steady media diet of mainstream and liberal media and like taking it into consideration, it really, I think, stretches the limits of credulity.

I imagine that Justice Kavanaugh, like Justice Thomas,

like Justice Scalia in his day, has cloistered himself in an echo chamber of a media environment where Fox News reigns supreme and NPR and the New York Times are completely forbidden in the household, let alone slate or strict scrutiny.

I really do not believe for a second that he thinks there's any merit to those criticisms either.

And I think that allows him to kind of brush off

any, you know, potential critiques out there.

Like what we've been seeing here in this public address and in some of his recent opinions and his concurrence in the cost of case some of his shadow docket opinions is that he like he senses that there's some discontent with the way the court is and his response is it's all good yeah his response is just it's it's fine what are you worried about like trust me i'm brett you can definitely trust me he he rarely engages with the substance and i think it's notable like in the CASA concurrence he was directly just because he doesn't have the capacity to engage with the substance.

Yes, yes.

Well, I just think it was so weird because a lot of that CASA concurrence seemed to be responding to our friend Steve Vladdock's book, The Shadow Docket, and criticisms that Steve Lottick has made.

But Kavanaugh couldn't even say, like, as Professor Steve Vladic has noted, and here is my counterpoint.

He was just like, some critics say, and then produce the most strawman-like version of the critique.

Like, again, if he is listening to that ocean of criticism, it's not exactly washing up on the shore of his pickled brain.

I know that's a mixed metaphor, but I kind of like the imagery.

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For most of the rest of this episode, we are going to talk about who they are adding to the federal courts and how that too is an attack on the structure and operation of said courts.

So, let's start with a move Trump signaled for how they might be planning to transform the federal courts.

And that is, he called for the end of the blue slip.

Mark, what is the blue blue slip and what would it allow Trump to do if he ended it?

So the blue slip is this fairly weird tradition in the Senate where home state senators of judicial nominees, these days only district court nominees, can essentially veto a nomination by refusing to turn in what's called a blue slip.

It's literally a piece of paper that is blue that gives their consent.

So if a district court judge is nominated to a seat in, say, California,

that judge cannot really move forward or that nominee cannot move forward to a judgeship until California senators have returned their blue slip and California senators have a kind of veto power where they can withhold their blue slips and prevent that person from going forward.

What this means in practice is that district court judges are often confirmed as part of package deals where senators make these kind of trades with each other where a group of sort of centrist and conservative judges are appointed at the same time.

You saw some centrists and some liberals as part of these packages.

It has kept some of the district courts in this country, not all, but some, especially in purple and blue states, from becoming as radicalized as, say, the district courts in Texas.

Yeah, so Matthew Kasmiric coming to California or

New York near you.

Okay, so that sounds amazing.

I should note that friend of the pod, Ellie Mistal, wrote about the blue slip in last week's edition of Ellie versus U.S., a newsletter that's part of the nation and, as everything Ellie does, a true delight.

Okay, so we should also touch on who specifically the administration is already putting on the district courts.

So, if they're not so into Chief Judge Boesberg, a man nominated to a previous judgeship by President George W.

Bush and to a position on the Foreign Intelligence Surveillance Court by noted liberal squish, Chief Justice John G.

Roberts.

Who are they putting on the district courts, Mark?

So, I think the best example of the crop of Trump 2.0 judges is Josh Devine, who was recently confirmed to a judgeship in Missouri.

This is a guy who has spent his entire professional career as a partisan warrior for Republican causes.

He battled Joe Biden's immigration policies in court.

He battled Joe Biden's student debt policies in court.

I guess I should disclose here, I think he's the first Trump judge to have personally tweeted nasty things at me, but I promise

my opinion is not formed on that basis.

He also is an extreme anti-abortion zealot.

I'll give two examples there.

I mean, first, sometimes I feel like all roads lead back to Matthew Kesmeric somehow, that he, when working for the state of Missouri, was one of the lawyers asking Matthew Kesmeric to ban Mifabristone, the abortion pill nationwide by revoking the FDA's approval of it.

And after the people of Missouri enacted a constitutional amendment protecting the right to choose in their own founding charter, he nevertheless persisted in defending severe abortion restrictions that were plainly unconstitutional under that amendment.

So he is is very, very extremely anti-abortion.

And yet he was confirmed and in fact confirmed with the vote of Senator Angus King of Maine.

Because who put in a good word?

Because Josh Hawley put in a good word on the Senate floor.

And even though Angus King caucuses with Democrats, he said, sure, why not?

And so just to return to the conversation before, like if blue slips for district court judges are tanked and that tradition goes away, there will be Josh Devines on every single district court in the country.

Like it won't just be the Missouri and Texas and Florida district courts that have these nut jobs.

It will also be, as you say, Leah, California, New York, Minnesota, like they will be everywhere.

And so they won't, I mean, I guess the upside is that Republicans won't have to do as much forum shopping because they'll have an even broader array of hacks to bring their cases.

They'll still need to forum shop, though, because those places won't have single judge divisions where they would know they would get the Josh Devine or Matthew Kessmerick of California.

That is true.

I guess I just really want Matthew Kessmerick to have a vacation, Lee and I'm trying to think of how he can reduce his workload, but fair enough.

So kind, so kind.

So perhaps the biggest assault on the courts was the confirmation of another Trump nominee, and that is Trump's nominee to the U.S.

Court of Appeals for the Third Circuit won, Emile Bove.

So let's take stock of the information we have on Bove.

This is the guy about whom two whistleblowers, including one who's named Arez Rouveni, came forward about Beauvais' hot takes on complying with court orders, specifically the court order on the Alien Enemies Act.

This is the infamous fuck you.

So can you remind us what those allegations were, Mark?

Yes.

So as the Justice Department was attempting to defend these unlawful deportations under the Alien Enemies Act, Emil Bove allegedly stated that Justice Department lawyers might have to say fuck you to the courts and defy their rulings in order to enact Trump's immigration agenda and unlawfully deport these individuals to other countries and to a horrific prison in El Salvador.

So according to this very credible report,

Beauvais was preparing to defy the courts and then, as we know, like did defy the courts in the Alien Enemies Act shortly thereafter.

So it's not like this is just some speculative thing.

Like,

he laid out the plan.

He executed the plan.

Well, and also, additional corroboration is the text messages are repeatedly referring to fuck you, right?

It's decision point on the fuck you moment.

So, like, we just, there's lots of indications to think this happened.

And this administration really seems to have a soft spot for fuck you guys.

So, Bloomberg reported that Juan Bill Esali, I'm not sure if I'm pronouncing that right, but the guy who's been running the Los Angeles U.S.

Attorney's Office for about three months has been pulling all kinds of antics, including forcing lawyers to redo failed indictments before new grand juries as he's struggled to get indictments for protesters.

And Saley allegedly shouted, quote, fuck the justice manual, end quote, at a team of his attorneys pursuing an indictment stemming from the protests, according to several individuals.

But back to Beauvais.

Okay, so it seems Beauvais doesn't just say fuck you to the courts.

He's an equal opportunity fuck youer and has directed it also maybe to Article 1.

So since we last spoke of the Dark Lord of the Third Circuit, back in the Halcyon days when there were just two whistleblowers against him, though even that isn't quite true, it turns out, stay tuned.

A third whistleblower complaint, you know, has arisen for Bove.

And this third account maintains Bove was not truthful in his testimony to Congress about how he handled the dismissal of the public corruption charges against New York Mayor Eric Adams.

So Mark, what does this third whistleblower account relay?

Yeah, so briefly, briefly, this goes back to when Bovet was trying to get prosecutors to sign on to the dismissal of, as you say, Eric Adams' indictments and the entire case against him.

And Bove was having trouble finding someone to do that.

And this was a topic brought up at his confirmation hearing.

And Democratic senators asked, did you imply that any individual who agreed to sign the brief would be rewarded?

And Bovet pretended that he didn't follow the question.

And then there was a clarification.

Was there any suggestion that the person who signed this brief would be treated any differently because of it?

And Bovet said no.

He answered in the negative.

He represented that he never told anybody in the prosecutor's office that they would be treated better if they signed the brief.

And furthermore, he also said to the Senate during his confirmation hearing that he never said that prosecutors would be fired or punished if they refused to sign the brief.

This whistleblower report says that Emil Bovet shocker was lying when he promised to the Senate under oath that he did not threaten to fire or promise to promote people who went along with his plan.

In fact, he warned the office that they needed to follow the chain of command and that there would be quote consequences for those who didn't and later that there would be rewards for those who did.

That is what he denied saying at his hearing, and yet what this whistleblower claims he did say in the heat of the moment.

So, you know, I think that it's notable that first Bove tried to duck this question.

He was like, I'm going to pretend that I don't understand this relatively straightforward question.

And then when it was restated, I guess he was like, I'll just lie.

Yeah, that's always a good fallback plan if you've got Trump on your side, I suppose.

And we'll talk about this, but it's almost like this is the problem with confirming these incredibly corrupt people to judgehips.

He now has this armor, right?

Like, there could be some consequences against him.

Let's hope that there might be in the future.

But I imagine that his mental calculus was, I'll perjure myself because I'm about to be a judge.

So what are they going to do to me?

Yeah.

And, you know, there seem to be tapes here.

So the Associated Press reported that the whistleblower provided Congress with an audio recording of this.

But as you were mentioning, you know, Bovay seems to have lied to Congress.

He also seems to be one of the people for whom Bozberg found probable cause to believe was in criminal contempt contempt of a court order.

He shouldn't be on the bench, but the fact that he is will make it harder to impose any kind of accountability on him since federal courts are where accountability goes to die.

You know, just consider by way of a contrast, you know, the fate of a previous Trump administration official, Jeffrey Clark, the assistant attorney general who was in charge of the civil division at DOJ in 2020.

And in that role, he urged the department to issue a letter he drafted casting doubt on the election results, you know, based on false statements and signaling that DOJ was investigating election irregularities.

And I identified election irregularities that did not, in fact, exist.

Well, the DC Bar Board of Professional Responsibility last week recommended that Clark be disbarred.

Now, that is not just an aside about possible consequences for lawyers in the Trump administration.

How is Jeffrey Clark now part of the Emile Bovay story, Mark?

Well, are you referring to Jeffrey Clark partying it up with Emile Bovay at a celebration

after his confirmation?

Yes, Jeffrey Clark is a Zealig-like figure who seems to appear at all the most kind of corrupt, consequential points of Trump's reign.

And here he was, pictures shared by Anna Bauer of Lawfaire, in which Emil Bovay and Jeffrey Clark are hanging out together, having a good time, drinking themed cocktails, just chumming it up.

And, you know, here's a man who's about to be disbarred, hanging out with a man man who probably should be disbarred, but instead is about to become a judge on a federal court of appeals.

The image is striking, somewhat nauseating, and almost unbelievable, but unfortunately, we have to believe it.

Yeah.

So as I alluded to

just a moment ago, I mentioned that when we last spoke, we thought there were only two whistleblowers raising alarms about Emile Beauvais.

It turns out we were lowballing you because the New York Times has reported that, quote, the Justice Department's internal watchdog lost a crucial account from a whistleblower that also concerned Beauvais and once again concerned, quote, overseeing an effort to mislead judges and skirt or ignore court orders, end quote.

Mark, how does DOJ lose a whistleblower's account?

So I think you either have to believe that the Justice Department Inspector General's office is filled with incompetent mediocrities, or you have to suspect that there might be something of a cover-up going on here.

And look, maybe it's both.

I never

want to write off the possibility that there are mediocrities who are incompetent and also engaged in a cover-up in the Trump administration.

But it seems unlikely, given that the whistleblower and their representative tried very hard to get this through to the office, made multiple attempts to ensure that the Inspector General's office had it, it seems hard to conceive of the fact that it would just wind up in some pile somewhere and nobody would ever take a look at it, even though it involved an incredibly hot topical issue with massive consequences for Bove's confirmation.

What's baffling to me is that this is not an Inspector General's office that has been purged by Trump.

So this was led for a long time by Michael Horowitz, who Trump did not touch.

In fact, Trump likes Michael Horowitz and gave him a new job as Inspector General of the Federal Reserve, which we know Trump wants to sort of meddle with and accuse of all kinds of terrible things so that he can have pretext to fire Jay Powell.

So it seems that Trump and Horowitz are like on the same page, but Horowitz is gone.

And so you have this office that is running on

an acting inspector general with civil servants at the helm that still allegedly lost this.

I mean, I think that maybe the Occam's razor answer is that a combination of partisan functionaries in the office and people who are extremely afraid of being fired decided to slow walk or ignore or lose this whistleblower complaint.

But I don't purport to have any insider information.

That's just my two cents.

Yeah.

So Bove's confirmation happened to occur the day before National Whistleblower Day, which Republican Senator Chuck Grassley marked with a tweet.

Alas, it is not just Republicans who bear responsibility for Emil Bove being on the federal bench.

Mark, I know you wanted to talk about, as do I, how Democrats also bear some responsibility here.

Yeah, absolutely.

I really want to talk about this because this seat should not have been open under Trump.

This should not have been a seat that Donald Trump could fill.

This was a seat that opened under President Joe Biden.

This was a seat to which Biden nominated an extraordinarily qualified candidate, Adil Mongi, who would have been the first Muslim on a federal court of appeals in the United States.

And yet when Democrats controlled the Senate, by 51 votes, no less, they refused to confirm Mongi to that seat, ensuring that it would remain vacant for Trump to fill.

So yes, we should, of course, blame the Republicans who voted for Bove to be confirmed.

But if you kind of look at simple cause and effect, that wouldn't have happened for this seat if Democrats in the Senate had done their job and confirmed Adil Mongi last year.

Yeah, so let's walk through the horrifying stages of this just catastrophic failure.

So at his confirmation hearings, Mongi was subjected to horrifying Islamophobic attacks, you know, mostly from, or I guess at the time, entirely from, Republican senators.

You know, sorry to do this, but here's a montage of them.

Senator, I stated this earlier, but let me repeat it because I think it's critically important.

Do you condemn the atrocities of the Hamas Hamas terrorists?

Yes, that's what I was about to address, Senator.

And is there any justification?

Is there any justification for those atrocities?

Senator, I'll repeat myself.

The events of October 7th

were a horror involving the deaths of innocent civilians.

That is contrary.

Is there any justification for those atrocities?

That was going to be my next sentence, Senator, which is, I have no patience, none, for any attempts to justify or defend those events.

Are you willing to denounce the center on whose board you served inviting a convicted terrorist, a supporter of Palestinian Islamic jihad?

By the way, Palestinian Islamic Jihad participated in the October 7th atrocities.

Are you willing to condemn their inviting a supporter of their to attack America and to support the reasons for the September 11th attacks.

Senator, I don't think anyone can feel more strongly about what happened on 9-11 than someone who was there, who saw with their own eyes smoke billowing from their title.

You won't condemn this.

I wouldn't let him complete his answer, would you?

He's filibustering and not answering questions.

So I'm going to ask him to answer the question I ask instead of giving a speech on a different topic.

And Mr.

Chairman, you do this all the time.

When a question is going badly for a Democrat witness, you jump in and try to save the witness.

He knows how to answer a question.

When I ask a question, he gives a speech on a different topic because he doesn't want to answer it.

My question is simple.

Do you condemn this event that was celebrating Palestinian Islamic jihad?

Yes or no?

You should not bully the witnesses nor try to bully members of the committee.

Asking a question is not bullying.

Complete your answer, please.

Thank you, Chair Durbin.

I'll answer your question very directly, Senator Cruz.

I will condemn without equivocation any terrorism, any terrorist or any act of terrorism or any defense of any act of terrorism.

I don't know

anything about this event or who these people are.

I've never heard of any of them.

If someone on there is a terrorist, I condemn them.

At Mongi's committee vote, Marsha Blackburn, who was apparently very triggered by this podcast, held up a Washington Times op-ed that called Mongi, quote, Hamas's favorite judicial nominee.

But then like what happened afterwards is in some ways even worse.

So a Democratic senator from Nevada, Senator Cortez Masto, raised another issue, maybe relying on a story from the Washington Free Beacon, about Mongi's role in the advisory board of Alliance of Families for Justice, an organization that supports people with relatives in prison, you know, as part of which I guess Mongi successfully litigated a pro bono lawsuit on behalf of the family of a mentally ill incarcerated black man who they allege was choked to death by corrections officers after having been handcuffed.

So, I mean, Mark, where was

Chuck Schumer, like as these attacks ramped up?

Like, how did Schumer close this out?

He was nowhere to be found as the attacks ramped up.

He refused to put anything on the line or any real skin in the game to defend Mongi.

He refused to try to pull his caucus together and expend a little bit of capital on getting this nomination through.

What he did instead was strike a deal after Trump won the election in the waning days of Democratic control of the Senate to set aside Mongi's nomination and three other nominees to the federal courts of appeals in favor of confirming district court judges more quickly.

So that did get through some good district court judges, but it left open these more important seats.

I don't think it's controversial to say that like these individuals exercise more power.

Most cases in the federal judiciary end at the circuit court level.

And Schumer decided to sacrifice these four nominees, including Mongi, in favor of this deal to get through district court judges, something that Republicans laughed about at the time and are laughing about today because it so obviously favored them and hurt them.

It's just such a self-own.

And when it became clear that Mongi's nomination was not moving forward, he withdrew in a must-read must-read letter to President Biden.

I just wanted to read portions of it here.

So he wrote, quote, I will not assume the worst possible motivation for their, here he's speaking of the Democratic senators, embrace of this attack.

But to me, that leaves two possibilities, that these senators lack the wisdom to discern the truth, or they use my nomination to court conservative voters in an election year.

One reportedly made the decision based on fear of an attack ad.

Meanwhile, a third senator literally handed control of his vote to Republicans.

To fetishize bipartisanship amidst an outrageous attack campaign is not a virtue.

It is a preening abandonment of morality.

End quote.

Couldn't put it better.

I mean, really brutal, scorching, exactly.

Exactly right.

And I really laud him for having the wherewithal to say that in what must have been an incredibly dark moment for him, having been thrown under the bus by Democrats.

I mean, there is so much moral clarity in that letter.

I commend everyone to read it in full.

For sure.

So last week, in addition to confirming Beauvais, the Senate held a hearing on another Court of Appeals nominee, this one to the Ninth Circuit Court of Appeals.

And this nominee refused to answer what I thought was kind of a softball question.

So we're just going to play that exchange here.

Mr.

Davis is the founder of the Article III project.

According to the organization's website, he founded the Article III project after he helped Trump win the Gorsuch and Kavanaugh nominations.

And Mr.

Davis said that we saw how then how relentless and evil too many of today's Democrats have become.

They're Marxist, who hate America.

They believe in censorship.

They have politicized and weaponized our justice system.

Do you agree with Mr.

Davis's statements that today's Democrats are relentless and evil?

Senator, Mr.

Davis's views, as expressed there are not necessarily the views of mine.

I didn't ask if they were necessarily, I just asked, do you think that today's Democrats are relentless and evil?

Senator, you're asking me to comment on a political question, and as a nominee to a judicial position, I cannot and should not speculate or comment on that.

Sir, I spend a lot of time working to try to affirm this fact that we are one nation under God,

that the lines that divide us are nowhere near as strong as the ties that bind us.

I'm proud of my relationships with my friends on the other side of the aisle.

I think it hurts Mr.

Kennedy when I say that he and I are friends.

I could say unequivocally, Republicans are not evil, but you're telling me you will not say on the record here that Democrats are not evil.

Senator, you're asking a personal and policy-laden question that I cannot answer.

So put yourself.

yourself.

Mark, any notes on the answer?

I'm struggling to see how saying that Democrats are not evil would somehow trigger a canon of judicial conduct and cause problems for him if he is confirmed down the road.

I agree that this felt like actually kind of a softball.

It should be the easiest thing in the world, maybe, for a judicial nominee to say, no, I do not think that this political party is evil.

And to say, look, I made some comments in my youth,

maybe to that effect, like I was a young college student, I said these things, but I'm a different person now.

So he's asking, he's being asked about the comments of someone else.

Yeah, exactly.

It's just like, he doesn't even have to disown, write his own comments.

I am curious to know if a senator had said, do you think that Democrats are running a child sex slavery ring out of Comet Pizza in Washington, D.C., whether he would have responded the same way?

And I fear that the answer is yes.

Yeah.

Okay.

So

last part of this very uplifting segment, we wanted to touch on what the Trump nominees already on the courts have been up to.

So one of Donald Trump's nominees to the Eighth Circuit recently continued that court's hustle to hobble voting rights.

So this judge authored a panel ruling holding that private individuals and groups have no right to sue under Section 208, another provision of the Voting Rights Act.

This one allows voters who need help because of a disability or inability to read or write to get help from a person of their choice.

Recall that the Supreme Court had stayed the 8th Circuit's earlier decision saying there was no private right of action to another provision of the Voting Rights Act, Section 2, the nationwide prohibition on racial discrimination in voting.

Now a panel is like, okay, but how about if we just go ahead and nullify another section of the Voting Rights Act?

Indeed.

Okay, so last kind of subset of this, they're the nominees on the Supreme Court, as ever.

So I wanted to talk about the fiercely independent, moderate Justice Barrett, who is going to be the secret liberal institutionalist who will save us all.

She announced her first press event since being confirmed.

Mark, you want to share any details about this press event?

This will be a conversation with the similarly fearlessly independent Barry Weiss,

who founded the free press, a right-wing substack that pretends to be sort of moderate, centristy, but is in fact frequently defending Donald Trump and MAGA and their prerogatives while saying, oh, this goes too far, but we like all this other stuff.

It seems to be a kind of...

drug, maybe a gateway drug that disaffected Democrats huff in order order to more embrace Trumpism and the owning of the libs.

I would say that's the role that it serves in our media environment.

And yep, she will be talking about and selling her new book, Listening to the Law, in this event, which as I understand it, quickly sold out.

So look, Leah, you know, we can say whatever we want, but clearly there's some demand for this.

People are willing to pony up.

Okay.

So another thing just wanted to note that was late breaking as we were sitting down to record, you know, as the Supreme Court has handed Donald Trump more and more power to politicize the federal administrative state and fire, you know, officials with some independence and expertise over on True Social, Trump said he is firing the head of the Bureau of Labor Statistics, that is the Commissioner of Labor Statistics, a longtime civil servant confirmed 86 to 8 by the Senate.

Trump decided to fire this person because the job numbers came in below his expectations.

This is, of course, a dangerous and corrupt attack on the independence of

United States economic data.

Now, I should say that the commissioner is not an official who was insulated by statute from presidential removal, and yet still Donald Trump's war on independent sources of authority, knowledge, and facts, probably relevant to the Supreme Court's assessment of the constitutionality of removal restrictions, one might hope.

Absolutely.

And I guess I also just want to broaden it out and say this shows yet again why the unitary executive theory, in addition to just being flatly wrong as a matter of history, is such a bad idea as a matter of governance.

Like we want and in fact need our jobs reports to be accurate and uninfected by partisan corruption.

Like we need to have a clear view of what is going on in our economy in order to pass sensible policy.

And if you destroy any semblance of independence at the Bureau of Labor Statistics, we're not going to get that.

You know, he's probably going to try to stack that office with lackeys who will manipulate the data in order to make the economy look better than it is, which is terrible for reasons I don't think I have to lay out.

And so, like, you know, every time the Supreme Court embraces the unitary executive theory, they have all of this nonsense about how great it is.

Like, they make it seem as though this is how the framers wanted it, a government truly accountable to the people.

This is ensuring democratic accountability.

This is, you know, protecting, in fact, the separation of powers.

No, what this is doing is allowing one person to amass so much power from other branches of government that he is essentially acting as sovereign and he can dismantle the structures that Congress has put in place, right?

Because Congress created the Bureau of Labor Statistics.

Congress created this position.

Congress wanted this Bureau to be producing accurate information that policymakers could.

could rely upon.

Trump, thanks to the unitary executive and thanks to all of the power that he has amassed, is now preventing thwarting Congress's goal.

That is bad.

That strikes me as a bad idea.

And it would be one thing if the conservative justices were like, we don't know if this is good or bad, but it's what the Constitution means.

Well, that would be wrong, but at least we wouldn't have to pretend that they have some grand, brilliant theory of democracy.

What they have done instead is tried to convince us, sell us on this idea that making the president a king is a good thing for everybody.

And Leah, it just freaking isn't.

Well, what if we just want our jobs numbers to be based on vibes rather than well?

laws based on vibes as you have um so so exhaustively demonstrated so perhaps now the next frontier is for the economy too as well nothing could go wrong there surely okay so while we were recording the washington post reported that adriana kugler is unexpectedly stepping down from the federal reserve board's board of governors so this will create a vacancy that will give donald trump an early opportunity to shape the fed's leadership so more about those vibes less economic policy might might be in our near future.

And after we finish recording, at around six or seven on a Friday night, inundated with Jeffrey Epstein news, which is really how you know they wanted to bury this, the Supreme Court finally got around to releasing the reargument order in Louisiana versus Calais.

Listeners will recall this was the case where a group of white voters challenged the constitutionality of Louisiana drawing a set of maps that complied with the Voting Rights Act by ensuring that black voters had political opportunities to elect the candidates of their choice, after courts had found Louisiana's initial VAPs in violation of the Voting Rights Act because they diluted Black voters' political power.

The re-argument order makes perfectly clear that these YOLO heads on the Supreme Court are coming for what remains of the Voting Rights Act.

The order directs the parties to brief the following question: quote, whether the state's intentional creation of a second majority minority congressional district violates the 14th or 15th Amendment to the U.S.

Constitution, end quote.

In plain English, the court is asking whether Section 2 of the VRA, to the extent it requires political opportunities and political representation for voters of color and language minorities, is unconstitutional.

Yes, apparently enforcing the Voting Rights Act might be the new racial discrimination.

The order explicitly references the portions of the white voters' brief that explicitly and specifically made this argument, namely that complying with the Voting Rights Act and attempting to comply with the Voting Rights Act do not allow a state to consider race when drawing districts.

Please note that it is literally impossible to comply with the Voting Rights Act without considering race.

So this is a frontal attack on the Voting Rights Act.

If you are thinking, wait, how can they just do that and just tee up the constitutionality of the Voting Rights Act?

These guys seize the power to declare what issues in cases they want to resolve.

This is what happened in Citizens United.

The court only later asked the parties to brief whether the ban on corporate expenditures was unconstitutional.

And of course, they ended up going that route, so a pretty ominous sign.

If you're thinking, wait, I thought three short years ago, the Supreme Court upheld the Voting Rights Act and its requirement that states draw districts that take into account black voters' political opportunity, you would be correct.

That is what happened in Allen v.

Milligan.

But as we tried to tell you, these guys were not going to treat that case as definitively resolving the constitutionality of the Voting Rights Act.

As we know, Starry Decisis is for suckers, even for their own decisions.

And the Dadaist poet on the court, the great Cav Cur, Coach Kavanaugh, wrote separately in that case to say he would be open to striking down the Voting Rights Act on a slightly different theory about why the law was unconstitutional.

Basically, he said, I can fit another marshmallow in this mouth and still say chubby bunny.

Finally, if you were thinking, wait, I thought that when the Supreme Court struck down Section 5 of the Voting Rights Act, which had required certain states to preclare preclare changes in their voting policies with the federal government.

It had said, don't worry, we don't need Section 5 because we still have Section 2 of the Voting Rights Act, which prohibits racial discrimination in voting nationwide.

You would also be correct.

That is what the Republican justices said in Shelby County.

But lol, psych, this two-step would be a classic move of the Roberts Court.

So this challenge is not only an existential threat to the Voting Rights Act and the prospect of multiracial democracy, which only came to the United States after the enactment of the Voting Rights Act.

This should also be understood as part of an effort to greenlight racial gerrymandering in ways that allow Republicans to seize more and more political power, notwithstanding what voters want.

The Texas legislature, recall, is in an ongoing process of redrawing their maps to be even more gerrymandered to ensure that more Republicans have safe seats in Congress to help increase Republicans' chances of holding the House.

If the Supreme Court says says in Louisiana versus Cale, oh, by the way, you can also racial gerrymander and suppress black voters' political power in addition to suppressing Democratic voters' power, that is also going to invite Republicans to draw districts that wipe out seats currently held by Democrats.

So it's not just the Texas legislature that is doing Trump's bidding to redraw maps to outsmart democracy.

It may also be the Supreme Court, too.

Mark, thank you so much for being a wonderful guest co-host.

And again, listeners, if you want to hear more of my conversation with Mark, be sure to listen to the most recent Amicus Plus segment out Saturday, August 2nd.

Thanks, Mark.

Thanks, Leah.

And listeners, if you want to hear Mark and my reading recommendations, make sure you tune in to the rest of the show,

where it will be at the very end.

That's, you know, the news.

Our next segment is a conversation Kate and Melissa had with Jessica Calarco about her fantastic book, Holding It Together.

But first, some very exciting news.

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On Friday, November 7th, Crooked will be joined by some of the most influential names in politics for a full day of conversations, workshops, and live pods as we all figure out how to build the big pro-democracy movement we need to defeat rising authoritarianism before or maybe after it's too late.

If you like this podcast, you're definitely going to love CrookedCon.

And while we can't say officially, I'd say there is a strong chance we'll be there, Wink.

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Head to crookedcon.com for tickets, lineup announcements, and more.

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At the University of Arizona, we believe that everyone is born with wonder.

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Today we are delighted to bring you a conversation we have been wanting to have for a while with guest Jessica Calarco.

We're your hosts.

I'm Melissa Murray.

And I'm Kate Shaw.

Jessica is a sociologist and a professor at the University of Wisconsin-Madison, Go Bucky the Badger.

She's also the author of Holding It Together, How Women Became America's Safety Net, which is the subject of our conversation today.

So Jessica, Jess, welcome to Strict Scrutiny.

Thank you so much for having me.

So I have to say, I love, love, love the book.

I read the book and I absolutely felt it in my bones.

I am raising children.

I, for a very long time, was also taking care of my mother.

I felt this sort of sandwich very acutely.

And when this book came along, I was like, yeah, this is exactly my life.

Why don't we have more of this, more of this infrastructure?

Why aren't we doing a better job taking care of care?

And what I thought was so interesting about the way you frame things in this book is that you almost didn't write this book.

In fact, when you began the research for what became this book, you were actually focused on a different problem, inequality among families.

And then, as you were interviewing 250 Indiana families, you got thrown a loop, and that loop was the pandemic.

And the pandemic opened up a range of different questions that you didn't even know you had.

So can you tell us how the pandemic brought you to this particular project and what the outputs were?

Yeah, and so the irony here is that, you know, the working title for this book when I first started was The Best Laid Plans of Parenthood, which, you know, at the time I was interested in, I had my own two small young children.

And I was interested in, you know, how do parents develop the ideas about the ways that they want to raise their kids?

And then what happens when life gets in the way, oftentimes in deeply unequal ways ways rooted in you know racism and economic inequalities and how does that you know how do parents grapple with that when they can't necessarily follow through on the plans that they have for their kids and you know i had my own best laid plans moment though when covet hit because we'd we'd been in the field following these 250 families over time um and you know when when covet hit it meant we had to move everything online we had to you know shift all of our um shift all of our interviews to zoom and to you know phone calls and things along those lines and it just um you know at the same time i i thought about scrapping the project, you know, because my kids were home, I didn't have child care, didn't have schooling.

But at the same time, that the stories that I was hearing, you know, from folks at the start of COVID,

you know, made it very clear how much of an impact that these changes were having on women in particular, who were not only taking on, you know, the bulk of the caregiving for children, but also making sure that, you know, grandma got medication, making sure that neighbors got meals when they got sick, making sure that colleagues had people to fill in for them in ways that helped to make this moment possible to help us navigate these crises.

And that led me to questions that really became the core of this book, which is

why do other countries have social safety nets that they rely on in times of crisis?

Whereas we push that work of crisis management onto women instead.

Why is that?

I mean, the quote that you just sort of paraphrased, I think you said it on another podcast interview, other countries have safety nets.

In the United States, we have women.

That went viral because so many women felt that acutely.

How did we get to the point where our social safety net is essentially a DIY safety net, as you put it, and is basically pretty much in tatters?

Yeah, I mean, what I show in the book is that really the core of the problem stems from the mandates and the dictates of financial capitalism in the sense that under a kind of deeply financialized, kind of profit-driven, and not just profit for, you know, profit's sake, but profit for shareholders' sake, you know, that kind of a capitalistic system depends on the existence of unpaid labor and specifically the unpaid work of care.

Because under financial capitalism, if the goal is to maximize profits for shareholders, the problem with care is that it's too labor intensive to be profitable unless it's either low quality or deeply underpaid or simply not paid at all.

But at the same time, the problem there is that without care, society and the entire economy would grind to a halt.

And so the kleptocrats who are running this financial capitalistic system need to find find a way to get that care work done for free if they're going to keep as much of the profit for themselves.

And so the most effective way to do that, to get that kind of free caregiving labor done, is to trap people in precarity and then to force them to take care of themselves.

And in that kind of a system, people with more privilege have an incentive to push the work of care downstream onto others who are more vulnerable than they are.

And so that's how we get a system where men are pushing that work onto women.

And then women with more privilege have to either decide, do I do this work myself or do I pay someone else, oftentimes a woman who's in a more vulnerable position than I am, to do that work for me or some of that work for me instead.

And so

this system, it essentially depends on precarity, and that's why it's not working, why it's hurting all of us and leaving all of us in

a deeply stressed and impossible state.

But it's generating a whole lot of profit in the process for the people at the top of the ladder.

And that's part of what makes it particularly hard to dismantle.

So as you were just saying, and the book makes very clear, this kind of DIY slash women as social safety net is very much a policy choice, right?

With a lot of financial reasons that help kind of explain it.

But one of the things I think you explain beautifully in the book is that like we could do this differently.

And in fact, there were these glimpses of other paths we could have taken, right?

Moments where we did do things differently.

And one of the stories you tell is a World War II story in which a federal law, the Lanham Act, actually funded child care centers, some of them 24-7 child care centers.

I love this story.

It comes early in the book.

So how did it come about and why didn't those policies survive the war?

Yeah, I mean, essentially, in the context of World War II, we had men off fighting in battle in large numbers.

And so we needed women to fill in the gaps, not only in the kinds of economic jobs that men were holding before the war, but also filling out the war effort in terms of domestic production, in terms of army production and military production more generally.

And certainly they tried propaganda campaigns.

They tried telling women, it's your patriotic duty to join the workforce.

And that didn't work all that well.

Maybe not surprisingly, because women already had a job.

They were already holding down the home front, oftentimes without support with things like child care.

And so what Congress eventually realized with actually some pushes from women in positions of power was that really, if we're going to get women in the workforce in large numbers, we need to invest in childcare, that that's the only way this is going to happen.

And so, eventually, with money from the Lanham Act, though ironically, with Lanham himself kind of kicking and screaming along the way, you know, they were able to finally persuade Congress to set aside this money to build these child care centers, to fund the development of child care centers that provided, you know, as Kate was saying, you know, up to 24 hours of care, you know, round-the-clock care for families to allow for round-the-clock production in defense production centers around the U.S.

And this was high-quality, affordable care.

Families were paying typically less than $10 per day in today's dollars in terms of what the cost would be for children.

And this wasn't just for young children.

It was after-school care for older kids.

It was summer care.

It was really recognizing that if we're going to have women in the workforce full-time to be the kind of workforce that we can depend on, they need that kind of wraparound, high-quality, essential care.

And that was a highly sustainable system.

It worked well.

People loved it.

And yet it went away almost as soon as it began.

So, can we touch on that some more?

I have done some research on women's work in World War II.

And one of the things that they really struggled with was how to reconcile the prospect of women leaving the home to go to factories and work with traditional gender norms.

So, when the war manpower group is trying to enlist women in this war effort at home, they talk about how going to a factory and making munitions is just like baking cookies or, you know, pressing ammunition in a die is just like squeezing oranges for orange juice.

So there's a way in which they try to make all of this consistent with the work that women have traditionally done.

So that's actually very interesting, like just how to make actual factory work look more like home work and how to make the home front feel literally like your kitchen.

But then there's this real shift after the war ends where they really retrench to traditional gender roles.

There are all of these policies that favor veterans in the workforce to the exclusion of women workers who have gained all of this experience in World War II.

And they kind of double down on gender roles, gender stereotypes.

And all of these women are saying, I actually liked this period of my life.

I like working outside of the home.

I like being able to bring my kids to this child care facility.

I like being able to get this dinner that you cooked for me and that I brought home to my family.

How does just the entrenchment of gender roles help dismantle this system that actually for a minute disrupted gender roles, even though it didn't really disrupt them entirely?

Yeah, I mean, I think it, I think it's, you know, a thing that a lot of folks don't know is that, you know, that kind of propaganda, you know, telling women this is just like make baking cookies, it wasn't really for women.

It was to justify this to men in the sense that, you know, women understood that they could do this labor.

And it wasn't that they didn't want to be in the workforce.

It was that they were locked out of the workforce.

You know, we had marriage bans in place that had to be

taken out of policy, taken out of law in order for women just to be able to, for married women, for women with children to be able to join the workforce during World War II.

Many of those were put back in place post-World War II.

And yet we had this moment where we saw women in large numbers and particularly middle-class white women, you know, joining the workforce in larger numbers than they had previously, which starts to challenge people's thinking, which starts to suggest, well, hey, maybe women can do this kind of work.

Maybe this isn't just for men, starts to kind of push back against some of those traditional assumptions.

But that becomes a problem then at the end of World War II, because rather than want to build that stronger social safety net, rather than want to make an economy big enough to have room for everyone or let women, God forbid, compete with men for those high-powered jobs, we wanted to make sure that those jobs went back to the men who were returning from war, and especially the white men who were returning from war.

And so what that meant was that we needed a way to justify pushing women back home, telling them that, oh, no, no, actually, you belonged at home all along.

We only needed you for a short time, but it's men who are better suited for this kind of work.

And that's where those gender ideologies, where those kinds of gender-essentialist assumptions and myths come back in, and that they become ways to rationalize and to legitimize the discrimination against women, the efforts to push them back home, the efforts to, you know, even threaten women with electric shock therapy if they refused to leave the workforce or complained about having to go back home.

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So I want to ask you about a case that our listeners, at least some of them, may be familiar with, and it's the 1873 Supreme Court case, Bradwell v.

Illinois.

So, just to give a little bit of background, Myra Bradwell sued for the right to practice law.

The Supreme Court denied her claim, held that the 14th Amendment did not guarantee a right to practice a particular profession.

That's like the majority opinion, way less famous.

The really notorious part of the decision comes in the form of a concurrence written by Associate Justice Joseph Bradley, who agrees with the outcome, but on a very different logic.

So, according to Bradley, and I'm just going to quote what is an actual factual sentence from a Supreme Court opinion in the U.S.

reports from 1873.

So, quote, man is or should be woman's protector and defender.

The constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.

Wow, it still is a gobsmacking passage, no matter how many times you've encountered it.

So, Jess, Jess, in your book, you discuss the influence of gendered scripts that insist that basically Bradley was right, that women are natural caregivers, men are natural breadwinners, that is the nature of things.

And these scripts are not just things from the 1870s, right?

They have infiltrated society all the way up to the Supreme Court and arguably to this day.

So can you talk a little bit about the way that these scripts perpetuate the kind of women as social safety net core claim of the book?

Yeah, I mean, so as we talked about before, you know, in a DIY society, all of us have an incentive to push the work of care downstream, you know, from men onto women, from women with privilege, onto those with in more precarious positions, in more marginalized positions.

And these kinds of gendered myths operate to essentially allow men to feel like good guys, even if they're exploiting the women around them.

Because if you believe that women are just naturally better suited for that, you know, that work of care, that work of care that can't generate a profit in the same way that other forms of work can because it's become too labor intensive,

especially in the wake of automation and globalization.

It's a lot easier to feel like, well,

I'm not hurting anyone.

by having my wife be the one to stay home or by having her do most of the care work.

And in a similar way, it means that employers don't have to feel bad about choosing the man over the woman.

It means that society doesn't have to feel bad about the fact that people, men who work in IT might make $90,000 a year, where a woman working in social work might make $30,000 a year.

Because we see that as, oh, that's just the the work that she's designed to do.

That's the work that she, you know, that she loves and that, you know, fulfills her in those ways.

And so she doesn't need the extra compensation, you know, for that kind of labor.

And so these, these kinds of myths, they really operate to reify and justify these kinds of deeply unequal systems where we're all pushing that work of care downstream.

So I think the point is a really good one.

These scripts have been around for some time.

They get repurposed in World War II to make the prospect of women working feel less jarring jarring to men who are a little put out by it.

And then they go away as men come back to the workforce.

But there's still another shift.

So this is sort of a series of oscillating moves.

In the 1960s, it seems like the United States is maybe a little more amenable to the prospect of income redistribution.

We see the rise of the Great Society with President Johnson, and it looks like maybe we are going to have a European-style social safety net.

But then all of this comes to a crashing halt in the 1980s with what you term the rise of neoliberalism.

So I've typically been of the view that neoliberalism is just code for everything I hate, but I think you probably have a better definition for it.

So can you give us a good working definition of neoliberalism?

And can you explain how neoliberal thinking really contributed to the demise of that redistributivist ethic in the 1980s and the rise of what we now know as a DIY,

very much capitalized care culture.

Yeah, so neoliberalism is essentially the idea that societies don't need social safety nets and are better off without them.

Because if people don't have that kind of protection to fall back on, they will, at least in theory, make better choices and take care of themselves better, you know, work harder to take care of themselves, keep themselves safe from risk instead.

And, you know, this theory has been thoroughly debunked.

This is not actually how people respond to risk in their day-to-day lives.

But at the same time, this theory has become so entrenched in our way of thinking, in our way of doing policy, in part because it was kind of wholesale imported to the U.S.

So this theory came out of the 1930s in a group of economists in Austria.

And in the wake of Franklin Roosevelt's New Deal, kind of big business owners in the US, kind of wealthy people in the US, didn't want to pay the higher taxes needed to fund that kind of social safety net and didn't want the kind of regulation that the New Deal was designed to put in place because that meant that it was harder for them to exploit profit for their own gain and to exploit people for their own gain at the same time.

And so they worked to create professorships for those neoliberal professors.

They worked to launch a massive propaganda campaign, things like General Electric Theater, which was a popular television program that went on to launch Ronald Reagan's career, which will get us to the 1980s, and also set up think tanks to promote these neoliberal ideas.

And so

this was a decades-long effort to infiltrate American thinking, to persuade Americans that we didn't need a social safety net and that we would actually be better off without one.

And this really paved the way over time for the kinds of policy shifts that we saw,

and certainly the kinds of Supreme Court decisions, things like Citizens United.

This is very much rooted in this kind of neoliberal thinking that we should just be, everyone should be taking care of themselves and corporations are people too, and they should be able to sort of maximize profits for themselves the way that all of us are supposed to do or take care of themselves in those ways.

And so, I mean, I think this, it's not that it was something that just kind of emerged out of the 1980s, but that this was really the culmination of a decades-long effort to put people like Reagan in place that would be this mouthpiece for neoliberalism.

and that would help to promote these ideas, not just in the background and sort of the, you know, Milton Friedman-esque op-eds promoting, we should be putting shareholder profits before everything else, but to really make this part of our policy structure, to change the way that we do policy and to really bake in this notion that social safety nets should be as small and meager and punitive as possible, and that we should all try to DIY society instead.

So I love this part of the book.

One of the things we always talk about on this podcast is how Ronald Reagan was a noted liberal squish.

And we're usually being sarcastic when we say that, but in the book, you show he actually kind of was a liberal squish at one point.

He was pro-union.

He was the head of the Screen Actors Guild.

As governor of California, he signed California's bill liberalizing abortion access in that state.

It's only when he gets presidential aspirations that he kind of adopts this entire neoliberal ethos, becomes pro-life, becomes anti-union, and becomes anti-care.

Indeed.

And really, I think you're right in pointing out the fact that this was a

dramatic shift in his own politics and really stemmed from his role in general electric theater and in kind of being this mouthpiece for neoliberal ideas.

And certainly, you know, the role that those,

you know, it's hard to tease out precisely what,

you know, who shaped his thinking in those ways, but he became a highly effective tool for

the sort of architects of that system, in part because of his broad popularity and became a sort of

easy tool to deploy to help to normalize and popularize these kinds of deeply problematic ideas.

And if I can just add one more detail from the book, so that kind of half-century-long project that culminates in the 1980s, but really is traceable to this kind of 1930s resistance to the New Deal by business interests.

They were literally importing Austrian economists to the US specifically for the purpose of training a generation that actually included Milton Friedman, who you referenced.

So this was a long game, and it just bears fruit in the 80s, but certainly by no means begins then.

So, okay, so we wanted to pivot a little bit and focus on kind of a related phenomenon, which is that the policies that you are describing in the book not only don't support families, but are coupled with policies that urge or even compel the having of families, but then without the support for families.

So can you say a little bit about how reproductive policies, whether we're talking about abortion regulations or restrictions or abstinence-only sex education policies are sort of of a piece with this kind of DIY social safety net that you're talking about.

Yeah, so essentially, I mean, this stems from the fact that one of the most effective ways to force someone to take an unpaid or underpaid caregiving position, you know, a highly effective way to do this is to trap them.

in a caregiving role themselves, you know, to push women into motherhood before they are emotionally, financially,

personally, and physically ready to do so.

In the sense that once you are tasked with caring for a small child, you have to make choices not only for your own well-being, but for that child's well-being.

And that is often the pathway that pushes women into filling these underpaid jobs in our society, especially jobs in fields like child care and home health care.

I tell the story of a young woman that I call Brooke in the book, and she never thought she was going to be a mom, never wanted to be a mom herself, in part because she had grown up in a very kind of difficult home life situation.

And yet she became unexpectedly pregnant in college and thought she was going to to have an abortion.

But ultimately, her parents, who are conservative Christians, persuaded her to have the baby and promised to help raise her son.

But they figured out that they couldn't afford both college and child care.

And so she ends up not only dropping out of college, but going on to welfare, moving into a shelter with her son, and finds that with welfare comes work requirements.

And so she had to find a job to support herself.

And ultimately, the best full-time job that she could find was a job in childcare, caring for other people's kids.

And because that meant she could also have free child care herself, that that came with the job.

And this is, you know, this is the pathway by which women often get pushed into these kinds of positions.

And she talked about how even when she got promoted to assistant director of the center a few years later, she was still only making $25,000 a year.

And I think it gets it the sort of, you know, the ways that attacking reproductive freedom can put women into those kinds of vulnerable positions where they can be easily exploited, forced to settle for less than ideal jobs and less than ideal partners in some cases too.

So I'm glad that Kate brought us up to the present because obviously right now we have an administration that is really, really dedicated to recreating a care infrastructure in the United States.

I'm obviously being entirely sarcastic.

The Trump administration has been very explicit about its antipathy for redistribution, whether it is about means-tested public assistance or affirmative action.

But what they have been also explicit about is that they're very much dedicated to the prospect of improving the nation's declining birth rates and really investing in families.

So they have been clear.

They want to incentivize bigger families.

They are considering the prospect of implementing Trump baby bonuses or Trump savings accounts that would be given to newborns.

And all of this is kind of linked to what I think of as a kind of pronatalist ethic, which is a little creepy, trying to get women to have more babies, but it does lend itself to, at least on some level, public support for families.

So as creepy as this is, is it maybe a step in the right direction?

Or are there better ways to do this?

That's a leading question.

I mean, I'm skeptical of the idea that they will ever pair their pronatalist policies with support for families in the sense that really,

and it gets back to what we were just talking about in the sense that, you know, the way to have women do this work, the way to force women to be the social safety net for our society is to trap them in motherhood, but then also deny them any support in raising their children, because it's that kind of precarity that makes exploitation possible.

And so, you know, the ideal from the power from the perspective of the powers that be is to push women into these kinds of mothering roles, but without ever offering them paid family leave or universal child care, because that would make it too easy.

You know, that would mean that they'd have choices.

That would mean that they could choose when to have those children or how many to have or that they might not choose to have them at all or that they might demand more support with their families that would be costly, that would chip away at some of those corporate profits or

shareholder resources in the process.

And so I think that's where I'm skeptical that this kind of pronatalist push will ever turn into support for stronger social safety net policies on a broader level.

And I'm even skeptical that those kinds of policies would change things like the birth rate, you know, in the sense that we have other countries that have stronger social safety nets.

And really what we see on that front is that

if you really want to have women have more children, the most effective way is to take away their rights, you know, is to take away their access to education.

I mean, I think this is, you know, I think they already have one fortunately.

But I think this is, and really it gets at the idea that, you know, once women have those other things that they can be,

you know, they don't necessarily want to have maybe more than one or two children because they want to be able to do other things with their time.

Wait, wait, wait.

Are you saying that women don't care about the constitution of the family, that maybe they're just really focused on the constitution itself?

I mean, I think that's maybe, I think, the

fundamental gist of it in the sense that...

you know, I think there's a reason why once we had the pill, you know, for example, that we saw birth rates changing dramatically, that we saw, you know, that's where the 1960s, where the feminist movements were able to come from, is that once you had control over your reproductive choices, you then were able to take advantage of these other opportunities in society and have a life beyond caregiving.

Not that there isn't value and meaning in caregiving, but that if that is, you know, devalued in the way that we devalue it, and if that's the only option available to you, you know, that's a hard life to have to live.

And that's part of why, you know, so many of our grandmothers were very heavily dependent on drugs and alcohol to make it through the 1960s in the sense that know, this was not a, you know, in the 1950s and 60s, that housewife life was not easy necessarily for the women who had to live it.

And yet that's what they're arguably trying to push us back to.

And I'm glad you mentioned the birth control pills because we have on this podcast long suggested that the campaign against abortion was not going to stop with the overturning of Roe and the end of constitutional protections for abortion.

Contraception is in the crosshairs, absolutely.

And I think that you just provided a really good distillation of why, if in fact they want to consign women to the household, they're obsessed, as Melissa mentioned, with increasing birth rates, actually coming for contraception is going to be the most effective way to realize their vision.

And it's very, very scary.

A question that is sort of related, but a little bit distinct, and I think I know what you're going to say in response, but we are now seeing not only these proposals for things like the baby bonus accounts, but entirely new policy proposals that would ratchet up still further some of what you already talk about in the book, work requirements on recipients of Medicaid and SNAP, just other pretty brutal cuts to the social safety net that are part of the Project 2025 vision and have been in various legislative proposals of the Trump administration.

You know, just want to say a little bit more about what the kind of vision of the role of government in our lives fully realized would mean for women and families.

Yeah, I mean, I think the idea here is to keep the social safety net as small and meager and punitive as possible in the sense that if you need that support, you know, for yourself, for your family,

at least the Project 2025 vision is that you should not be celebrated for that.

And if anything, should be punished for that in terms of shame, in terms of being forced to work for pay, in whatever menial job you can find in the process.

And this gets back to precarity is the point.

And trapping people in exploitative economic relationships is the point.

That's when you put in place these work requirements, the kinds of jobs that women with young children, especially in economically precarious positions, are going to find are going to be low-wage jobs, often with schedule instability, often without any sort of employment benefits.

So these are not sustainable, high-quality jobs that will allow them to ever achieve a sense of stability for their families or a sense of security for their families long term.

And so I think we have to be very mindful of what those work requirements, what those kind of punitive measures will mean.

They will simultaneously make life much harder for people who need that kind of support.

They will make it harder for people to access that support in the first place.

And they will also help to destabilize trust in government.

You know, this is part of how we got to where we are today is that we have been chipping away at the quality and accessibility of government benefits since the New Deal.

That has been the project of neoliberalism since the 1930s.

It has been to make those programs less reliable, less dependable for the people who need them.

And that means that even people that I talked to who were using food stamps, who were on welfare, didn't love those programs in part because they were punitive, because they were limited, because they came with things like

draconian limits on how much money you could have saved.

I talked to one woman, for example, who her mother lives in Japan, and she couldn't save up enough money to buy a plane ticket for her kids and herself to go visit her mother because she couldn't have that much in savings and still get benefits through welfare.

And so that kind of, you know, those kinds of punitive measures drive a hatred of government and drive a distrust in government, even among people who are using these programs.

And so, I think that arguably where we see ourselves right now with this sort of deep distrust in government mechanisms stems in part from, you know, long-standing GOP efforts to undermine the quality of the support that we do have.

One thing I just wanted to say when you're talking, Jess, you know, it obviously is a book that is kind of a policy analysis and critique, but it also has these wonderful stories.

When you're talking about the precarity of these shifting schedules and the impact on benefits of slightly increased income from more hours of work, et cetera, You really convey a lot of that with these really wonderful stories.

So I just want to make sure our listeners know that it's not just a policy book, it really is a book that weaves throughout the policy discussion incredibly compelling accounts of what these policies mean on the ground for women and their families.

So I want to come back to where we started, the pandemic.

And again, it felt like the pandemic was this moment where people were finally starting to get it.

They were starting to understand

that we don't really have a care infrastructure, that many people were using school as kind of a gap filler for caregiving.

And when we all had to start running our own struggly homeschools, we really felt it in deep, deep ways.

And we also saw during the pandemic, again, under a Republican administration, that there were steps taken to patch up the social safety net.

So the PPP program happened, the STIMI and the stimulus checks that were really signed by Nancy Pelosi, but really actually also signed by Donald J.

Trump.

We saw student loan relief go out.

And all of this was about helping people stay afloat during a very challenging time.

And many people thought that with that at our backs, we could go into the next presidential administration prepared to rebuild not just the economy, but an economy that had as a precondition, a really robust care infrastructure.

And that didn't happen, although it seemed like all of the pieces were in place.

How can we recuperate that moment where everything seemed possible and then actually act on it so that we can build a care infrastructure?

Or are the headwinds against this just so intense that this is beyond our grasp?

Yeah, and I think it's important to remember how close we got with Build Back Better and how much of a difference Build Back Better would have made for our society.

You know, certainly

it wouldn't have put us perfectly in line with Scandinavian style social safety nets, but it would have gotten us to a much closer approximation of that kind of level of support that families in the U.S.

desperately need and deserve, everything from child care to elder care to housing-related policies to energy,

student loans.

It kind of ran the gamut in terms of the support that it was intending to provide for people in the U.S.

And we were a vote or two away.

votes that were bought off by the same, arguably bought off by the same people who funded Trump's campaign.

And so I think it's important to know that this was not a lack of will, that these policies were deeply popular, even among Republicans in the US.

The vast majority of people, if you ask them about these specific policies, wanted those changes.

And so it wasn't a lack of will or a lack of desire for change.

It was a lack of political will to make those changes and to upset the sort of the structure of our economic system that really puts all the power in the hands of those billionaires and big corporations to call the shots.

And so I think that gives me hope that we still, at least for now, live in a democracy and that the will of the democracy, the will of the people is to want that kind of support and that kind of protection that things like Build Back Better and that many of the programs that we had in place during the pandemic were able to provide as well.

And I think

the thing that also gives me hope is that

is the power of care in the sense that care is something that we have tried to stifle and squash and devalue for generations.

And yet care is what unites all of us.

We are all part of networks of care in the sense that if

our colleague is not getting the care that they need or doesn't have access to the care that they need for their families, that makes things harder for them, which makes things harder for us, that we're all connected in those kinds of ways.

And so to me,

thinking about ways that care connects our fates is a way that we can come together to start to challenge

the myths that the billionaires and big corporations, these sort of architects of our DIY society have used to try to delude us into thinking that we don't need that social safety net and to try to keep us divided, you know, by gender, by race, by class, by religion and politics, and really see how we can come together to hold it together in the short term and build a society where we can all hold it together more sustainably rather than trying to do it on our own.

I love this whole idea of linked fate.

And I love the points that you make in the book that we actually can have a more equal society by investing in care and not just equal for women, but the idea that gender equity accrues to everyone, not just those who identify as women.

And so I think it's a really important point that it's not a zero-sum game.

Everyone can win here.

And I so appreciate that part of the book and the message that you're sending.

Thank you.

And certainly, I think that is an important point in the sense that, you know, we often think of the battle of the sexes kind of a model of gender in our society.

And we think that, you know, the gains that women make will negatively impact men, that it has to be that zero-sum game but the reality is that we are all getting by with less care than we need right now and that investing in a care infrastructure investing in you know support for the people who are doing the work of care and ensuring that all of us you know are able to live with dignity are able to participate in democracy are able to participate in economic activity and are able to participate in a shared project of care if we're able to to put in place the kinds of policies that make that possible, it leaves all of us better off.

It means that all of our care needs are better met, and it means that we can be better and more active participants and contributors to our communities, to our families, and potentially be happier and healthier in the process too.

It strikes me in that telling that this book is literally the polar opposite of a book that we reviewed last year, Josh Hawley's Manhood, which is the most zero-sum account of gender one could possibly conceive of.

The subtitle is The Masculine Virtues America Needs.

I think we need to send him a copy of your book, Jess.

Don't read that book.

Read this book.

Indeed.

The paperback can just like have that as a tagline.

Jessica Calarco, thank you so much for taking the time to talk to us today.

The book, once again, is Holding It Together, How Women Became America's Safety Net.

And it is available wherever you get your books.

We got ours at bookshop.org.

It is an absolutely essential read.

Jess, thank you again for joining us.

Thank you so much.

Thanks to Jessica Calarco for joining the show.

Before I let you go, reading recommendations, Mark.

So first I want to share Chapel Roan finally released

the studio recording of the subway, which I have loved since she started performing it live last year.

And I've listened to so many like bootleg versions of it.

And unlike her studio version of The Giver, which I found a little bit disappointing, I thought that the recording of the subway was extraordinary, perfect.

I absolutely love it.

It's been on non-stop repeat.

It's giving me life, especially that majestic outro.

And then I want to continue to plug a book that the Supreme Court desperately wants to stop you and your children from reading, which is called Uncle Bobby's Wedding.

And And I know I've basically been on like an Uncle Bobby's Wedding book tour over the last few months, but this is the book that Justice Sam Alito

gruesomely misread and misunderstood in the Supreme Court case from last term involving LGBTQ books in public schools.

He claimed that this was a book involving a homophobic child who didn't think that gay people should be able to get married, who is brainwashed and indoctrinated into setting aside her objections and celebrating gay marriage.

That is not true at all.

Uncle Bobby's Wedding is in fact a lovely book about how families change and grow and there is always enough love to go around even as that happens and an inspirational message to little children to not be afraid of that change as it comes and to welcome new people into families with open arms because only good things come of it.

I love this book.

My son loves this book.

I have read it so many times that by rights I should hate it by now.

And yet I don't because unlike Sam Alito, I do have the reading comprehension of at least a kindergartner.

And to me, I think the themes really resonate.

Well, that was a wonderful set of recommendations.

Here are mine.

So I would recommend Angie Sullivan and Jennifer Welch's book, Life is a Lazy Susan of Shit Sandwiches.

As listeners know, I am big on themes of female friendship, and this book is a wonderful entree into that.

Also, strict scrutiny listener Eric Coulson has a book, The Chrysalis Option.

We've kind of alluded to this, but just wanted to make it a formal recommendation.

Steve Vladek's post at one first, DOJ's ridiculous misconduct complaint.

Also, just started watching Department Q on Netflix.

Love it.

Final rec, the New York Times pitch bot content on the Supreme Court from Blue Sky.

Just going to highlight two.

One, critics say Trump is politicizing independent agencies.

Here's why that's a good thing by Neil Gorsuch, Clarence Thomas, John Roberts, Samuel Alito, Amy Coney Barrett, and Brett Kavanaugh.

Also, breaking news, 2030, the Supreme Court's swing vote, Emile Beauvais, broke with the court's left flank, Kavanaugh-Gorsuch, and concurred with Justices Eileen Cannon and Dana White that Mecca President Donald Trump could reallocate all remaining Medicaid funds for more torture drones.

No,

I know.

I know.

But those are my recs.

That's all for this week, but we will be back next week with more of the latest legal happenings and two fascinating conversations.

Strict Scrutiny is a crooked media production hosted and executive produced by Leah Lippman, me, Melissa Murray, and Kate Shaw.

It's produced and edited by Melody Rowell.

Michael Goldsmith is our associate producer.

Jordan Thomas is our intern.

We get audio support from Kyle Seglu and Charlotte Landis, and music is by Eddie Cooper.

We get production support from Katie Long and Adrian Hill, and Matt DeGroote is our head of production.

We are thankful for our digital team, Ben Hefcoat, Joe Matoski, and Johanna Case.

Our production staff is proudly unionized with the Writers Guild of America East.

You can subscribe to Strict Scrutiny on YouTube to catch full episodes, and you can find us at youtube.com forward slash at strict scrutiny podcasts.

If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode.

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

It really helps.

McDonald's has classics, but then there's the classic: two beef patties, sesame seed bun, made perfect with iconic Big Mac sauce.

And now I can snag one with fries and a soft drink with a $9 Big Mac extra value meal.

That's a Big Mac, medium fries, and an ice-cold Coke, all for $9.

Score the classics at Mickey D's.

They're classics for a reason.

But up, ba-ba-ba.

Prices and participation may vary, cannot be combined with any other opera or combo meal.

Promotion pricing may be lower than meal pricing.

Coca-Cola is a registered trademark of the Coca-Cola Company.

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