A Term for the Rich, the Reactionaries, and the Ruthless

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Mr.

Chief Justice, may it please the court.

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

She spoke not elegantly, but with unmistakable clarity.

She said,

I ask no favor for my sex.

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

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

We're your hosts, I'm Melissa Murray, I'm Leah Littman, and I'm Kate Shaw.

We have now had a few days to step back from the term, which means we are ready or as ready as we will ever be for our term recap.

So we're going to highlight some big term themes, share our takes on the biggest opinions of the year, and take a walk through some of the moments from the term that will forever be seared into our memories.

So one theme that I'd like to highlight just to get us started is this idea that the court giveth and the court taketh away.

And by that, I mean the court sometimes gives us good stuff, sometimes takes it away in the same breath.

And that often happens in tandem with the court highlighting really procedural issues that appear really wonky, but those procedural issues really mask underlying substantive questions that have really impactful consequences.

So I'm just going to highlight a couple of these cases.

Two of them were the e-cigarette cases.

So there was the White Lion case in which the court upheld an FDA ruling on e-cigarettes.

That was the giving.

And then the court took it away, which is to say, in another case, it allowed those companies challenging FDA regs and rulings to find friendly litigants to bootstrap onto their litigations.

And then they were able to file their lawsuits in friendlier circuits.

And that, again, enabled them often to prevail.

against the FDA.

So the case I just mentioned, RJR Vapor, essentially held that tobacco manufacturers can file outside of the DC circuit and the circuit in which they are incorporated if they can find some retailer or a gas station or basically anybody that sells e-cigarettes in a friendlier location.

And the court did a similar kind of thing in Diamond Energy versus EPA with regard to standing, essentially allowing fuel manufacturers or fuel producers to jump in and challenge litigation against the EPA.

All of this, I think, is really concerning.

And as in the birthright citizenship case, the court really focused on these narrow procedural questions, venue, standing, remedies that skirt these bigger, broader, more substantive questions.

So I would maybe generalize from that or go one step further in saying what the substantive motivation is behind these ostensibly procedural or technical issues.

And that is giving a leg up to favored litigants and favored rights and erecting obstacles and burdens to disfavored litigants and disfavored rights.

So you mentioned birthright citizenship and R.J.

Reynolds.

I would add to that JGG versus Trump, one of the initial Alien Enemies Act cases.

So on birthright, the court chooses this existential challenge to our constitutional order, the project of reconstruction, as the case to limit what remedies plaintiffs can get against the government.

And in JGG, it says to the men who are at risk of being permanently sent to Seacott, the Salvadoran prison, that we now have a first-hand account of the torture the men will be subjected to there.

It says to those men, eh, file a habeas petition, a more challenging, difficult process than blocking a policy entirely under the APA.

And then in R.J.

Reynolds, it tells Big Tobacco, you get to basically pick which federal court you file in, or contrast how the court exercised its discretion in Diamond Energy versus birthright.

In Diamond Energy, it revives a lawsuit by fuel producers against the EPA's approval of a California regulation, even though the Trump administration is considering at this very moment revoking said regulation, thereby potentially eliminating the need for litigation challenging it.

So even though this whole issue is likely to be moot, the court chose to decide the case anyway.

Then in birthright, the court opts not to say anything about the merits and how wildly illegal the executive order is, creating this chaos and uncertainty about when and where it might go into effect.

And this is what I took to be the BS that Justice Jackson talked about in her dissents in these cases.

In Diamond, she talked openly about the perception of the court, quote, being overly sympathetic to corporate interests, end quote.

And in Birthright, she says the court's decision will fall hardest on the, quote, poor, the uneducated, and the unpopular, those without the power to lawyer up.

Let me just add on to that, Leah.

So I think Justice Barrett's opinion in Trump versus Casa is very much of a similar vein.

And I want to focus specifically on the fact that she credited the administration's 30-day delay that had been baked into the initial EO.

And that 30-day delay for the implementation of the EO was ostensibly so the government could devise guidance for implementing its obviously and flagrantly unconstitutional order.

And she kind of credits that in the last part of it.

I mean, like, again,

talk about stacking the deck in favor of certain interests.

Like, we know this is unconstitutional, but yet we're going to allow this 30-day delay to proceed so they can figure out how to do the unconstitutional thing more unconstitutionally.

Like it just also you're saying anything these guys say, the Trump administration says gets credited and treated as law?

One more thought on that kind of part of the ruling in the birthright citizenship case that says, you know, there is a 30-day delay that we are essentially going to just announce by fiat.

It's part of the executive order, but we're saying, you know, the administration has to wait to begin enforcing it.

But guidance development can happen right now.

And I just think a couple things about that.

One, it does give me some pause with respect to all of these confident assertions that the executive order will clearly be deemed unlawful when the court addresses the merits.

I mean, I still think that's very likely the case, but I think it is far from 100% certain.

And I think this might be something of a tell.

And I also think there is something profoundly corrosive to just kind of the general constitutional culture to say executive branch lawyers start devising how exactly is this going to go into effect?

What should hospitals do when they are actually

violated?

You know, just figure it out, figure out the mechanics of this egregious constitutional violation.

I think it is appalling that the court does that.

But there's one silver lining I think that should be noted, which is that once you have guidance, if they do it fast, then you have the possibility of a challenge under the Administrative Procedure Act, which you don't have in the context of just an executive order.

So it is, there is some sense in which the guidance might provide a hook for a different avenue for legal challenges.

Yeah, so I could go on forever about the substantive choices and vision reflected in the procedural rulings, but I'll just note one other pairing, which is Planned Parenthood and birthright.

So, in the former case, the Supreme Court says Medicaid beneficiaries and providers can't challenge a state's violation of federal law.

On birthright, again, the court chooses an attack on multiracial democracy and the Reconstruction Amendments as a vehicle to limit remedies in civil rights cases.

Then, in Diamond, it adopts a generous theory of standing that makes it easier for fuel producers to sue.

In the FDA and EPA cases, it preserves the ability of corporate interest to pick where they sue.

Like, I feel like at this point, we are on theme number one, and I should warn our listeners that in the immortal words of Matt Damon playing Brett Kavanaugh on SNL, I'm going to start at an 11, and I'm going to take it up about a 15 real quick.

Like before we started recording, I read one of the more revealing garbage takes on the last term, and I haven't been able to come down from it.

Name a name.

Nope.

Name a name.

Nope.

Leave it to the listener's imagination, and maybe I'll talk about it in the Friends of the Pod Discord.

Is this fuel more or less powerful than three Magnolia cupcakes?

Just curious.

It's just different kinds of fuel.

Like the Magnolia cupcakes make me a little cheery and chipper.

This just makes me incandescent with rage.

Yeah, okay.

Well, I don't know if this is gonna help.

Like, I think I damaged my phone

by

throwing it across the room so hard.

Yes.

Okay, okay.

Well, I don't know if this is gonna help, but I did want to add one more case here, which might ratchet things up further.

But that is the shadow docket order DVD versus DHS.

So they're the court made, just in terms of the kind of procedural and discretionary choices the court is constantly making and trying to conceal.

So it made the decision to stay the careful work of the lower courts that had considered challenges to the administration's efforts to render individuals to third countries they had never been to, including South Sudan.

But the court put that lower court work on hold without saying a word about why.

Now, we are just reading tea leaves, but it may be that there were some jurisdictional concerns about the court's ability to hear that case.

That's the explanation.

Will Bodes applied for the court in in a term roundup we did for the Times last week.

But if that is the case, that would be another example of the phenomenon that Leah and Melissa you're both identifying, which is the court using these procedural shields to essentially reach the merits results that it wants to without actually taking responsibility for doing that.

And somehow that order in DVD became even more appalling when on last Thursday evening, the Supreme Court granted the Trump administration's, quote, motion to clarify the Supreme Court's unreasoned, unclear order, halting the trial court's injunction in the case.

That had blocked the government from carrying out third country removals without providing due process.

After the Supreme Court's unexplained, literally zero explanation order, the lower court, doing his darn best to figure out what's going on, determined that while the initial order/slash injunction wasn't in effect, a subsequent order still was, and that was the subsequent directive, a remedial order, that had required the government to provide the men it shipped off to South Sudan without due process, in violation of the lower court's order, to require the government to offer those men some due process and credible fear interviews before releasing them into the custody of South Sudan.

On Thursday, the Supreme Court, quote, clarified that that order was blocked too.

What the government asked for, as Justice Sotomayor explained in a blistering dissent, is quote, to send the eight non-citizens it illegally removed from the United States from Djibouti to South Sudan, where they will be turned over to the local authorities without regard for the likelihood that they will face torture or death, ⁇ End quote.

Justice Kagan issued a short concurrence to the order, saying that while she disagreed and still disagrees with the Supreme Court's order staying the lower court's order, she doesn't think a remedial order can remain in effect to remedy an order that is itself no longer in effect.

Which, I don't know, sounds plausible, but it's kind of treating what the Supreme Court did earlier in DVD with the same kind of presumption of regularity and lawfulness that this court unjustifiably provides a Trump administration.

I recognize these obviously aren't totally the same thing, but still struck me as similar.

Justice Sotomayor with Justice Jackson dissented, and did they.

They wrote, quote, perhaps the majority hopes that in light of its contentless stay order, the district court will simply give up on adjudicating this case.

But if this court wishes to permit the government to flout the fundamental rights guaranteed by the due process clause, it cannot avoid accountability for that lawlessness by tasking the lower courts with inventing a rationale.

She also wrote, quote, the court's continued refusal to justify its extraordinary decisions in this case, even as it faults lower courts for failing properly to define their import, is indefensible.

Today's order clarifies only one thing.

Other litigants must follow the rules, but the administration has the Supreme Court on speed dial, end quote.

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Okay, another theme of this term, I think, was all eyes on Amy.

Under Amy's eye, maybe?

No, no, his eye.

We don't,

it can't be under Amy.

Amy doesn't have her own eye.

She, like,

in this particular milieu, she is definitely under his eye for these purposes.

So, at the end of the last term, Justice Barrett was on the receiving end of brick bats from conservatives who were incredibly disappointed that she displayed a modicum of restraint in certain cases.

She was also, I think, in our view, weirdly and wrongly, celebrated by some liberals as the second coming of David Souter, which is to say they were wishcasting their fondest hopes and dreams for a five to four court onto Justice Barrett.

Well, Justice Barrett took that personally.

And in this particular term, she decided that Amy was going to Amy, which is to say that she made clear that she is a no-more suitors conservative to her core.

She is definitely with the boys and not just with the boys.

She's actually willing to beat up on her more junior black female colleague, which has prompted MAGA World to celebrate Amy again some more, while also denouncing Justice Jackson as a quote-unquote DEI hire.

I will just note that as of a few months ago, MAGA World was actually lambasting.

Justice Barrett as a quote-unquote DEI hire.

So life comes at you fast.

It's almost like they're willing to accuse anyone being a DEI hire, so long as they are not a white male if they are doing things that they dislike or disfavor.

Dissent is the first D in DEI.

And I will just say, as between the Barrett opinion and the Jackson opinion, I really do just implore our listeners to read the two opinions and form your own judgment regarding who gets the better of it.

Jackson's dissent, to my mind, clearly comes out on top.

To pick up on Barrett, though, I assume she will continue to occasionally disappoint conservatives and rekindle a degree of hope.

Maybe what glimmers of mine remain.

But her conservative bona fide should be safe for at least a little while.

And I think that's not just because of her opinion for the court in Trump versus Casa, which, as we said in our emergency episode, is like her first really big opinion for the court.

And boy, is it a juicy?

Yeah.

But also, I just want to kind of throw into the mix her track record in cases involving equality and liberty, which, you know, the birthright citizenship case obviously does as well, but ones that do more explicitly grapple with those things.

So first,

she wrote a truly extreme concurrence in the Scrametti case, going out of her way to say that discrimination against trans people should not be subject to heightened scrutiny, in part because there hasn't been enough official state-sponsored discrimination against trans people.

I mean, totally shocking factual claim and also gratuitous to stake out a claim on the level of scrutiny, which the majority resolves the case without deciding.

And to do that, while the ban on service by transgender individuals in the military is still pending, and while there are other cases involving pressing legal questions regarding the basic rights of transgender people before the lower courts and before the Supreme Court, so she went out of her way to say, this is how I think all those laws should be scrutinized.

And I just actually want to mention one other case, which is her opinion last term for a 6-3 court in state versus Munoz, kind of under the radar, but this was this case that held there is no protectable liberty liberty interest in living with your non-citizen spouse in the United States in a way that I think, like, you know, suggested a very cramped conception of constitutional liberty, at least if we're talking about anything but a paradigmat, heterosexual, cis, U.S.

citizen marriage, which she probably does think the Constitution protects.

Well, maybe not in this particular milieu right now.

So, I mean, Munoz takes on, I think, new contours right now.

But I will just say that I think you're right to highlight those two cases.

I think they really suggest her growth and her new level of comfort in her position because I can still remember Justice Barrett in 2022 saying absolutely nothing in Dobbs, like, you know, not even a word about a Dropbox where you could leave your baby.

She had nothing to say.

The sea witch had her tongue.

Yeah, she is going all in on Dobbs over and over, and I am personally over it.

I do not find her interesting, and I implore people to stop trying to make Amy Barrett interesting.

She will probably rule against the Trump administration in some tepid ways in some cases, but her right-wing views make her a reliable MAGA vote in most others, like most cases, period.

Okay, so let's shift to another theme from the term.

See it with your chest.

Say it with your chest.

So this next theme is the kind of big, the house is on fire energy that we are getting both, you know, energy and explicit warnings from both Justice Sotomayor and Justice Jackson.

One thing I think is less than clear is whether it is the administration or the court that is to blame.

I mean, maybe the obvious answer is why not both, but I just want to highlight a couple of writings on this theme.

So first, Sotomayor, in her dissent in the DBD case, that's the one where the court granted this stay in the third country removals case, she says, quote, given its conduct in these proceedings, the government's posture resembles that of an arsonist.

So here it's the government, right, starting the fire, who calls calls 911 to report firefighters for violating a local noise ordinance.

In any event, the government has not established a likelihood of success on any of its arguments.

That actually, I think, also well describes the government's conduct in the birthright citizenship case.

And second, I want to quote Justice Jackson in the Social Security Administration versus AFSME.

This is the case involving Doge and Big Ball's access to Social Security Administration data.

So she said there, quote, once again, this court dons its emergency responder gear, rushes to the scene, and uses its equitable power to fan the flames rather than extinguish them.

So I think we have the administration starting fires and the majority on the court fanning flames rather than extinguishing them.

She's just so fucking good at writing so clearly with just super evocative turns of phrases that, yeah, really capture the moment.

And speaking of calling out bullshit, we wanted to remind people of this very memorable moment from Justice Jackson during the birthright citizenship argument, something that I think has really stuck with people, including us, in her description of the regime the Supreme Court might have just ushered in.

I understand.

Let me just turn your attention to one other thing, because the real concern, I think, is that your argument seems to turn our justice system, in my view at least, into a catch-me-if-you-can kind of

regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights.

Justice Kagan says, let's assume, for the purpose of this, that you're wrong about the merits, that the government is not allowed to do this under the Constitution, and yet it seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to

file a lawsuit, hire a lawyer, etc.

And I don't understand how that is remotely consistent with the rule of law.

Okay, so coming out of that quote, let's maybe identify another theme, both from Trump versus CASA, but also more broadly from the term, which is the court siding with the Trump administration and against the district courts.

So I think that's true about Trump v.

Casa, kind of first and foremost on the court's merits docket, but the case just has to be discussed together with the court's disposition of cases on the shadow docket.

So I know a lot of folks saw and we have mentioned the eye-popping statistic that political scientist Adam Bonica compiled compiled a week or so ago, finding that from May 1st to June 23rd, federal district courts ruled against the Trump administration 94% of the time, and the Supreme Court sided with the Trump administration the same 94% of the time.

Just like pretty stunning data.

And look, there are some caveats to the data in that the administration only asked the Supreme Court to take up a small subset of the cases that they lost, ones where they thought they could make some kind of procedural argument that they could notch a win on.

But it's still like that track record and this big win at CASA is hugely emboldening.

And I think that you have already real evidence of that.

In that, within, I think, a day of the CASA ruling in the birthright citizenship case, the administration filed its first appeal in one of the law firm executive order cases, the one involving the order targeting Perkins Cooey.

So they had been essentially just letting those losses lie.

And they were all of a sudden like, oh, you know what?

Maybe we'll take our chances at the Supreme Court, might be able to get a win there.

Well, to that point, I just want to underscore the complete antipathy for lower court judges, both at the court and within the administration.

I think it was incredibly evident this term.

On the court side, we saw in the oral argument in Kelley and in Justice Alito's statements in the oral arguments from Trump versus Casa that these guys don't think that district court judges know what the fuck they're doing.

Like Justice Alito was talking about district court judges as though they were monarchs of their own realm.

And it's like, why don't you start with the man in the the mirror?

Why don't you ask that guy to make a change?

Because

that's where this all begins.

And again, it is also worth noting that the two voices standing up for the district court judges against the administration and against this court are Justices Sotomayor and Jackson, who are the only two members of the court to have ever served as district court judges.

And they have been vociferous in their defense of the juridical power of the lower federal courts.

I will also highlight Justice Jackson's speech at the First Circuit Judicial Conference in Puerto Rico, where she talked explicitly about how the administration's rhetoric was putting district court judges in danger.

And I will just note that it was pointed out to me that in addition to making those statements to a full audience of judges who gave her a standing ovation, Justice Jackson then had that speech and the coverage of it included on the Supreme Court's website.

So she wants you to know this is what she thinks.

And again, I just, the antipathy was stunning this term.

Well, compare and contrast her rigorous, meaningful defense of the lower courts with the Chief Justice's meh kind of statements, you know, in that direction.

You know, Kate, I agree with the limitations on the statistics you mentioned.

I also think they are pretty eye-popping and say a lot.

And one of the things they suggest to me is that the administration knows or has a pretty good sense of when the Supreme Court is with them and that on a lot of things the Trump administration is doing, the Republican justices are with them.

You know, on term themes, I'm extra, not news to our listeners, so I couldn't stop myself at one, sorry.

Like, if these guys don't have to, you know, do law, I don't have to restrict myself to one hashtag take on the term.

So one, and I think this is related to what you've both said, Kate and Melissa, but one is how the court is enabling lawlessness by giving the go-ahead to the administration and a big middle finger to the lower courts.

Like they respond sternly and quickly to the lower courts and then offer some like mild shrugs on Trump, like, I don't care, do you?

They come up with legal rules that basically say, yeah, there will be no consequences for violating the law.

And I know we've gestured at this, but I think it's important to emphasize by pausing so many lower court orders, including ones the administration defied, they are adding cover and fire to the administration's rhetoric on the lower courts.

The message they are sending to the Trump administration is that, yes, what the lower courts are doing is wrong.

And when you send that to an administration who believes any judicial oversight is wrong and who is defying court orders, what do you think you're going to get?

Like, again, in the case about perhaps the most egregious extreme lawlessness, birthright citizenship, they decided in picking what issues to weigh in on to say that the problem that warranted their attention and time is the lower courts.

Like it is a law of lawlessness, a law for lawlessness.

And to my mind, like this court is an anti-anti-Trump court.

Like to them, the problem is people, institutions resisting Trump, not what Trump is doing.

I will chime in to say it's not even just that they're sending that message to the administration.

It's that the administration is then broadcasting it to their supporters.

And that is having a profound impact, negative impact on lower courts, the safety of lower court judges.

Like it's incredibly irresponsible.

Completely agree.

So my second theme is gerrymandered judging.

So making up the law, a lot of bespoke bespoke law for the Republican Party.

We've talked about this some already, and I wrote a short-term recap for Democracy Docket making this point.

So I'll just quickly rattle through some of it.

But in the Planned Parenthood Medicaid case, they make it harder to enforce rules about the availability of public benefits, the same programs the Republican Party is vitiating on major questions doctrine, a tool that might constrain what the executive branch can do.

Brett Kavanaugh says, eh, this doesn't apply to foreign affairs, Trump's favorite kind of emergency or exception to invoke to justify emergency powers.

On the First Amendment, porn is just different in Trump versus Wilcox.

Our rule doesn't apply to the Federal Reserve Board.

In Skermeti, they revived precedent that legitimized sex discrimination in Godoldig versus Aiello.

They are ruling again and again for different constituencies of the Republican coalition that created and got us this court.

The rich, corporate interests, the reactionary, right-wing Christian theocrats, and the strongman.

In this sense, I would say that the court is very much aligned with the administration, which rode to victory in 2024 on this kind of working-class class populism, affordability rhetoric.

But since actually getting into office in January, this administration has been clear that they are beholden only to oligarchs and the mega-rich.

So you see this with the big beautiful bill, the cuts to Medicaid that are contained within it, the efforts to limit services at VA hospitals, the cuts to hospital research and universities.

And these are all programs that benefit working people, whether it is Medicaid recipients or veterans or the many people in red states who are employed by their local hospitals or their state university so just to say this is not a populist court and it is in service of an administration that's not really populist either yeah um third final theme i promise uh related to ones we've already talked about like what is law don't know her like these guys are making the law into a whole ass vibe like they're just hot boxing or freestyling whatever you want to call it the doctrines and reasoning they announce do not resemble anything i would recognize as law.

Like they are not principles or rules that can be applied by the lower courts.

It's just a bunch of mumbo-jumbo that allows the court to do whatever the fuck it wants.

Again, quick lists.

Skirmetti, eh, this doesn't really feel like sex discrimination to us.

Mahmoud, you know, eh, these books kind of give me the ick and make me feel like a bigot because I don't like gay people.

Like this is not judging because they only care about the interests on one side.

In Mahmoud, the standard they adopt depends on whether the books are a normative message, it's a a burden of the same character, it's an objective threat, not law, nationwide injunctions.

Vibes are just different than the Bill of Peace.

Like, in most of their opinions, it feels like you could pick out the sentence or sentences that contains the quote rule or quote reasoning, recite that sentence, and then say, the aristocrats, and you'd have like a pretty good joke.

And

the legal reasoning and rules announced in these cases are about as law-like as if Sam Alito was performing a rhythmic, artistic, gymnastics, dance routine, like an old school.

It's just the do the vibes seem off standard.

Do not do that to Will Farrell.

I'm sorry.

I'm sorry.

I will not stand for this Will Farrell erasure.

It's not Will Farrell erasure.

It is reviving this image of Will Farrell and inviting.

But what Justice Alita's had on him.

No one wants to visualize that.

Okay, sorry.

I'm sorry.

I've had to visualize and read a lot of things I didn't want to.

So all's fair.

All's fair.

Okay.

So those were, I think, the big themes we wanted to work through.

I think there were some other assorted topics maybe to reflect on over the last term.

One, which we've really already gestured at, which is just the vision of Justice Jackson and her willingness to call out hypocrisy.

We've mentioned her dissent in Diamond Energy, which was just remarkable in talking about the perception that moneyed interests enjoy an easier road to relief in this court than ordinary citizens.

So too was her epic iconic footnote 12 in Stanley calling bullshit on textualism.

I can't and won't read it all now.

Recommend to our listeners a track of Ellie Mistahl reading it to the track of Ether.

So

last line, all drop.

Really far from being insufficiently pliable, I think pure textualism is incessantly malleable.

That's its primary problem.

And indeed, it is certainly somehow always flexible enough to secure the majority's desired outcome.

So this was definitely the spiciest footnote of the term.

It might even give Caroline Products Footnote 4 a run for its money for the spiciest footnote of all time.

But I just want to make clear, she is true to this game, but she's not new to this game.

So let's go back to last term in Snyder, where Justice Jackson wrote a very spicy dissent where she observed that the tortured, faux textualist reading of a public corruption statute was one that, quote, only this court could love.

Yes.

And she opened that opinion by noting that when public officials are on the grift, you could lose faith in your public institutions.

So she's never been here for the bullshit.

And I kind of loved that she really stepped up the truth-telling this term, which I think helps explain the sharp rebuke from Justice Barrett in the Trump versus CASA opinion.

I think...

Justice Barrett was not only commenting on Justice Jackson's very on point dissent in the CASA case.

I think she was actually speaking for the entire conservative supermajority that is probably more than a little PO'd that Justice Jackson continues to take them to the woodshed over and over again in her dissent.

And I think they're really tired of her calling public attention to their absolute bullshit.

And I think that helps explain perhaps why Justice Barrett may have gotten this quite unusual assignment for such a junior justice.

I think it's clear that the supermajority is not happy with what Justice Jackson is doing, but I also think the Chief Justice probably realizes that the optics are really fucking poor if he or one of the more senior male justices takes KBJ to the woodshed, in an opinion.

And so instead, they enlisted Justice Barrett to write this decision and in the process to be the one to publicly chastise her colleague.

So it looks maybe a little better, girl on girl crime.

they're more peers than anything else.

But I think it would have looked really, really bad if the chief justice had been the one to do that.

Super interesting.

I think, agree, it's a really interesting theory.

I wonder what we make of, there was just this really interesting contrast in the Barrett majority opinion between the way she talked about the Sotomayor dissent, the principal dissent, which it is technically, but she kept saying that.

Like, that's a dissent that I disagree with, but I respect.

And that other dissent, that's not even doing law.

We're not going to take it seriously.

I mean, it was really

law, you say.

But if you read Brett's separate writing girl,

wait, so Kate, I think this is so interesting in view of the Jodi Cantor profile of Justice Barrett, where she mentioned specifically that there is some kind of friendship between Justice Sotomayor and Justice Barrett.

And Justice Sotomayor has given gifts to Justice Barrett's daughter or whatnot.

And it also reminds me of last term in the Andy Warhol case, where Justice Sotomayor wrote a majority opinion, and Justice Kagan issued a very stinging dissent.

And I said on the pod then that it surprised me how barbed the dissent was because I don't think anything Justice Sotomayor was saying was anything that Justice Ginsburg would not have said when she was the one writing those IP decisions.

And I don't think Justice Kagan would have come at Justice Ginsburg in that way.

And maybe there's a similar kind of thing here.

Like maybe there's just a kind of grudging respect between Justice Barrett and Justice Sotomayor that just isn't there between Justice Barrett and Justice Jackson.

I also just like, I really loved Jackson being as explicit in not just this term, but you're right to mention Snyder from last term about the deficiencies of textualism as a method.

And I just think it's so refreshing.

We're not just all going to embrace textualism and offer our like sort of slight variations on it.

I mean, I actually think she really does take text very seriously, but in context and not in isolation.

And I just like, I use- Well, I mean, she's a district court judge.

She used to be on the sentencing commission.

She knows from text.

Completely.

And she's just better at it.

And she has no patience for the way they do it.

And just made me wish I used to teach legislation as a law school class and I don't teach it anymore, but I would love to teach some of Jackson's statutory cases if I were ever teaching that subject again.

They're great.

It's honestly, it's so refreshing in part because I feel like at the various public law conferences or conversations I am part of, for the last however many years, even as a left-leaning progressive Democrat, still saying you weren't a textualist put you in some sort of weird minority.

Like, oh, you're just not on board.

You haven't gotten the message.

And I feel like now, you know, with her platform, she is providing so much

support and ammo.

And it is just wonderful to see it and read.

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So we also need to talk about Justice Kagan's appeasement energy.

I don't know if maybe that's not the right thing to call it, but I will just note that there were a number of cases decided on a seven to two fracture because Justice Kagan joined the conservatives.

So RGR Vapor was one, Diamond Energy, Stanley versus City of Sanford.

Any theories as to why Justice Kagan left Justice Sotomayor and Jackson out in the cold on these cases?

And I will also note that these were some of the cases where Justice Jackson penned her most stinging dissents against the majority.

What's going on here?

Is Justice Kagan extracting compromises for her vote?

I don't think her vote makes much of a difference with a seven to two fracture.

I mean, they're fine without her.

What's going on here?

Is this just sort of more appeasement?

That's what Micah Schwartzman at UVA has called it in the context of the First Amendment.

I'm confused.

I really don't know.

I mean, Justice...

Kagan authored the non-delegation case, SEC versus Consumers Research.

It's just hard to know, you know, what is going on behind the scenes.

And I think I've said this before, and it's something we've talked about, but it's so hard to know the internal dynamics at the court and the extent to which the Democratic appointees or any Democratic appointee feels like, if I peel off more or all the time, are these guys really going to go even full-on crazier in more sets of cases?

Like they truly are enough snowflakes where that's not impossible for me to imagine.

And I, you know, I don't know how to strike the right balance.

You know, Diamond Energy, that case is one where

Steve Vladic and I talked about this in the episode you all unfortunately had to miss.

Like we are both sympathetic to broad theories of standing.

So on the merits, I think they are probably right that there is standing.

I think their decision to decide the case is appalling

and is revealing of the kind of selectivity that Justice Jackson rightfully criticized them for, including on standing doctrine.

But yeah,

I don't know.

And I'll just say, like, I think she's a very kind of careful and tactical thinker and writer.

And it is entirely possible that she, through the process of, you know, draft revisions that circulate inside the court, she was able to extract some concessions where language she thought would be destructive in other areas of the law.

And she was able to sort of smooth those over or like get them actually taken out.

So certainly, like, she may have made these one-off decisions that I think in the aggregate, it is a little hard to understand, but and on an individual basis, like actually may have been totally rational and helped blunt the negative force of some of these opinions.

Hear me out.

I just worry that appeasement is not really a strategy here.

I'm thinking back to Justice Breyer and Trinity Lutherans, like that did not forestall the flood of absolute asshat decisions on the First Amendment that the court produced.

And I'm also thinking of her joining the dissent in Ramos.

When was that?

Back in 2019.

And I understood then, I think she telegraphed pretty clearly that she was joining them in order to make a point about starry decisis and the continuing vitality of Appadaka versus Oregon, a decision decided in 1973, the same year as another embattled decision.

And that still did not.

forestall what happened in Dobbs.

It didn't forestall it.

You know, as we've kind of speculated before, it might delay some of the impending doom.

We got a good four

years out of that.

Three more years of the establishment clause.

Again, I don't know.

And, you know, I am also super skeptical of the appeasement strategy.

It is not obviously where I lean.

And I do think this difference in the justice's posture relates to another thing that was said on the episode with Steve that I was mentioning.

And that's something Mike Sachs said, which is Justice Jackson as the model of the post-Obs justice who recognizes that appeasement fails.

And that is not the strategy.

You need to construct and build something new and advocate boldly for an alternative vision.

I'm going to say what I mean plainly then.

I think this appeasement strategy in this particular moment, where it's a six to three court, and there are two women of color.

among that minority and you are the third person.

I think when you depart, even on these cases that look not so consequential, but are actually quite consequential, you leave the other two open to tons of charges from the conservatives about the stupidity, the lawlessness of their reasoning.

When if you join them, you could insulate some of that talk.

And I think I'm not sure that the appeasement is worth what you're losing.

That's a huge

point.

Great and important point, because I feel like in some ways what you're saying is that Justice Kagan might be ignoring some important context, right, in which the court is deciding cases in the same way that the Republican justices in the supermajority ignore the context of the Trump administration, right?

And like not situating your decisions in the moment we are in, right, is,

you know,

yeah.

I wouldn't say those are comparable, right?

But like,

but for sure,

but for sure, like there are real costs involved.

And I think Melissa, you highlighted those really, really well.

Okay, so another thing I want to pause over.

So we've talked obviously about Kagan and Sotomayor and Jackson and Barrett.

Let's talk about the chief a little bit.

And I want to maybe raise a couple of things.

One, kind of the chief's role and

how central that is in the court's orientation toward Trump in this past term.

So At the end of the term, the Chief Justice offered some remarks at a judicial conference, quote, if you have somebody who's expressing a high degree of hostility to the court on whatever basis, the danger, of course, is somebody might pick up on that.

And we have had, of course, serious threats of violence and murder of judges just simply for doing their work.

So he's so close to actually identifying the problem and yet does not seem able to actually internalize that.

Donald Trump is the guy in the hot dog suit, or maybe John Roberts is, or maybe Jason.

The Chief Justice hides

begging for the guy in the hot dog suit meme.

Like, sir, we're all trying to find the guy who did this.

Well, it's,

yeah, but Trump is a big part of it.

Yes, but this is some of what I'm talking about with the anti-anti-Trump court.

The timing of this signals, don't call us Supreme Court out for our complicity in what the Trump administration is doing.

He's signaling that's just like when Donald Trump posts pictures of judges and their families and invites death threats against them.

I just don't even know if he is able to grasp that Donald Trump is as culpable as he is.

Maybe, maybe he is.

I'm not sure.

Or that he is as culpable.

Or that's the case.

No, no, yeah.

Yes.

So that's the point is that Roberts is culpable.

I'm just not even sure he realizes about Trump either.

I don't think he thinks either of them is responsible.

But I also just kind of wanted to pose this question, which is, what do we think about Roberts?

in this moment and the Roberts court.

So remember, obviously we've now been doing this podcast for over six years.

So I remember after Dobbs, it really felt and we really talked about Roberts having lost control of his court, right?

So he doesn't join the majority opinion that overrules Roe and Casey.

It doesn't feel like they need him or care what he would like the court to do, how fast, how radical, any of it.

And I just wonder whether in the wake of the immunity opinion and his rate of 95% presence in the majority in opinions this term, I mean, this is really, really high.

He was in the majority in almost every case.

I guess, is it again his court in more than just name?

What do you guys think?

We definitely talked about this last term with the Clean Water Act case.

I mean, he gave Justice Alito like the most parsimonious docket to write last year.

And I think that was intentional, sort of like, I'm the captain.

I'm really the captain and you're not.

And get it together.

I think he has been.

wresting control back from the hardcore conservative block.

And I say hardcore conservative block advisedly, because I think to call them hardcore and to take Roberts out of it is to suggest how far to the right the court really has moved.

But

I do think this is his court.

I mean, I think he's making decisions.

Some of them I think are really strategic.

As I said, with the choice of Justice Barrett for Trump versus Casa, I think he allowed her to carry a lot of water and take a lot of the heat for the whole conservative supermajority.

Yeah,

I think it is his court,

and I think it's his core in part because

he is on board with a lot of what they are doing.

And so they are traveling together and he is authoring some of the worst decisions in those respects.

So let's cover a bunch of additional kind of smaller themes.

One, foreign law in the last term, I think played a pretty interesting role.

So once upon a time, for our younger listeners, it was anathema for conservative justices to consider or cite foreign law.

Our Constitution was all that mattered, and it was something I would say akin to lawless to even consider the practices or legal regimes of peer nations in deciding what the constitution or laws in the United States meant or required.

So, an example of that is Justice Scalia's absolute hissy fit over the nod to foreign law in Justice Kennedy's majority opinion in the 2003 case, Lawrence versus Texas.

So, the court then, 20 plus years ago, was firmly of the view that foreign law or citations, even in passing to it were bad for limiting the government's ability to criminalize consensual sex between adults.

But all of a sudden in 2025, if you read Justice Alito's opinion in Scrabetti, it is totally fine to cite foreign law if the goal is to uphold the government's ability to dictate medical treatment for other people's children.

I think that's a really good point.

Foreign law is great when it allows us to get to our desired outcome.

It's almost like we're an outcome determinative court doing vibes, not law, but who said that?

I'll say the other point that we ought to focus on a little bit is the way in which these justices seem to have a really hard time figuring out their own document.

So I thought it was really telling and very on brand for this group that I think, as Leah points out, has struggled with this law thing quite mightily over the last couple of years.

They really could not figure out why they had taken some of these cases.

So there were three digs this term.

A dig is a situation where the court decides that sertiari was improvenly granted and the case is subsequently dismissed.

There might be lots of reasons why you would dig a case.

Maybe you've decided on reflection that this is an improper vehicle for deciding the issue at stake.

Maybe the facts aren't sufficiently well developed.

Either way, a dig kind of suggests that maybe you should have done a little more upfront reading.

And the court did a few digs last term.

There was the very famous dig in the Moyle case with the conflict between the federal law, Mtala, and the Idaho abortion law.

And this term, they digged three other cases.

So there was the NVIDIA case that they digged.

There was also Facebook versus Amalgamated Bank, another dig.

And then the LabCorp.

case, which was also dig.

And it just, again, we've talked about this before on the podcast.

The fact that they figure out later that maybe these aren't good cases to be deciding suggests that at least some portion of the court is in such a rush to decide certain issues that they just give their votes for cert.

They get the four, they put it on the docket, and then they're like, oh, wait a minute, this really is not what we should be doing.

And

that's one of...

I think the dangers of a supermajority, where you don't have to be really considered, where you don't have to think about where your votes are coming from on final review, and you can just take stuff.

And they have been taking stuff.

Another theme to highlight is selective starry decisis.

So I think it's pretty clear that starry decisis is still for suckers, just not all the time, right?

Some of the time.

So let's play a clip from kind of a smaller case from this term, Royal Canaan, because it has Justice Soto Bayor once again trying to tell us.

Do you think that courts of appeals

read our decisions differently than we may?

I was on a court of appeals for 15 years.

If I saw a strong dictum in a Supreme Court decision, I would very likely just salute and move on.

But here,

we have more of an obligation.

It depends, just as some of my are.

just to take an inventory, so we're all clear about where we stand here.

Um, starry decisis is apparently okay in the context of Yoder versus Wisconsin, allowing the Amish to opt out of compulsory high school education.

Godaldig versus Aiello, where it is clear that any distinction based on pregnancy is not a sex-based distinction for purposes of the Constitution, and any case that triggers Justice Alito's feelings, those are all fine for starry decisis.

Yes, but

starry decisis is apparently not for Employment Division versus Smith, which says neutral, generally applicable laws that burden religious practices are constitutional.

Also, not for the court's previous First Amendment cases about restrictions on non-obscene pornography, which had applied strict scrutiny, not intermediate scrutiny.

Also, Tolesky on the spending clause, which said you can enforce spending clause power legislation through the general civil rights statute a mere two years ago.

Also, all of of the cases involving nationwide injunctions against the Biden and Obama administrations, no star decisis there.

Correct.

And star decisis is very much TBD for Wong Kim Ark, the Supreme Court case that confirms that the first sentence of the 14th Amendment means what it says, which is persons who are born in the United States are citizens regardless of the status of their parents.

Also TBD, the cases the court has previously decided upholding the constitutionality of the Voting Rights Act.

We don't exactly know what the court is going to ask ask the parties to brief in the Voting Rights Act case, Louisiana versus Calais, which will be re-argued next term, but it will not be good, whatever it is.

The remaining parts of Buckley versus Vallejo, the 1976 opinion, in which the court did a bunch of things, but in part found that the Constitution did permit some regulation of campaign finance.

We will see if that endures after next term.

And maybe just for good measure, all Warren Court decisions.

TBD, if any of them are still good law.

Yep.

We'll find out.

Really keep my fingers crossed for Brown.

I mean, I would say too soon, but yeah.

If they overrule Brown, if they overrule Brown, they don't get to say Brown actually forbids efforts at integration, which you know they love to do.

So

that's the upside of Brown.

Yeah, that is the upside.

Great point.

Great point.

Okay.

So we want to highlight a handful of notable moments from the last year.

One, you know, we've talked about this before, but it deserves one more turn.

Edith Jones coming for our friend Steve Lottick at a FedSOC conference.

We are not going to force you to rehear that moment.

We will just remind you that a federal judge came to a panel with a manila folder containing printouts of Steve's tweets criticizing single judge divisions.

And she proceeded to read Steve's mean, I mean, quote mean, orn't even that mean, tweets, and accuse him and not Matthew Kesmerick of being the problem.

This was a perfect indication of a judicial temperament.

Give her her a promotion stat.

Edith Jones, read my social media posts if Steve's trigger you challenge.

We should also say, as we reflect upon the term, that we are very grateful for all of you, the strict scrutiny fandom.

You keep us going in what has been some very grim times this term.

But I just want to highlight that it is not often that we get a rave review from One First Street, a Supreme Review, if you will, which is why we were a little surprised, but very gratified to read Justice Alito's majority opinion in Mahmoud v.

Taylor.

And it wasn't just Justice Alito's utter disregard for precedent other than Yoder that surprised us in that decision.

In fact, it didn't really surprise us at all because Justice Alito.

Instead, what surprised us was that Justice Alito acknowledged publicly in writing that this podcast, strict scrutiny, is, in his words, appropriate.

Let me read the quote.

Justice Alito said, and again, I'm quoting: strict scrutiny is appropriate.

Now, obviously, that is not necessarily the most overwhelming and enthusiastic endorsement, but we know that Justice Alito is not one to gush.

So, given that he's often a little bit stingy with his praise, and because we know he is deep down a friend of the pod, we're going to take it as a win and maybe make some t-shirts with it.

So thank you, Justice Alito.

You heard it here, folks.

Strict scrutiny is appropriate.

It is his version of a five-star review, I am quite sure.

You don't need to prove your age before listening.

We are appropriate.

We get strict scrutiny all the time.

Oh, careful.

Don't give him any ideas.

Age verification.

What other verification for downloading our podcast?

Anyway, okay, so we also wanted to highlight some highlights, lowlights, memorable moments from oral arguments.

And let's start with a moment from Garland versus Vanderstock, which is a case about ghost guns and whether federal law restricted their sale.

I mean, yes, you heard me right.

That case was this term, which really kind of underscores how much this last year has actually been one million years.

So let's play the clip.

No, I want to stick with the definition of weapon for just a second.

Oh, sure.

Show you.

Here's a blank pad, and and here's a pen.

Is this a grocery list?

I don't think that that's a grocery list, but the reason for that is because there are a lot of things you could use those products for to create something other than a grocery list.

So it's not like there's...

If I show you, I put out on a counter some eggs, some chopped-up ham, some chopped-up pepper and onions.

Is that a Western omelette?

No, because again, those items have well-known other uses to become something other than an omelette.

The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use.

I actually had the experience of putting one of these kits together, and it's just like what the record shows.

There are usually only a couple of steps.

The first thing that most of the kits require is drilling the holes.

Usually, it's six holes, and you do it with the jig.

That case was argued before Luigi Mangioni.

And I'm just going to say, I think Luigi Mangioni may have been a deciding factor factor in this court concluding that ghost guns fall within the ambit of the firearm acts.

I'm not even joking.

Like Elizabeth Crelager did an amazing job, but I think the real politic of that moment may also have been very determinative.

That clip also highlights that earlier this year, we had a different SG, Elizabeth Prelager.

The transition from her to acting Solicitor General Sarah Harris was also kind of an interesting one.

But we then got another transition to John Sauer.

And all of that happened in just a single term, a term of three SGs.

It just boggles the mind, really.

So all that happened in the single term, but John Sauer's ascent happened in this calendar year, as did the TikTok argument.

That was in 2025.

So was the Supreme Court's 5-4 decision rejecting Trump's effort to block his sentencing in the New York hush money case.

That was January of 2025, you know, launching a million takes about Amy Coney Barrett as our savior.

But also, I feel like I've aged 40 years and all that was January.

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So maybe looking back on this millennia, let's do a quick round of roses and thorns.

Okay, so here's one rose or maybe bullet dodge, which was the court's decision in AJT declining to impose a heightened standard on students with disabilities raising claims under the ADA and the Rehab Act.

There is, of course, an ominous Thomas concurrence thorn, which raises questions about Congress's constitutional authority to impose accommodation obligations on schools at all.

But the majority opinion definitely was, I think, arose.

Also arose in the court.

Again, this is like how far we have fallen that these are roses, but they are given where we are.

The court declined to further upend administrative law and further hobble administrative agencies in both Braidwood, about the composition of the Preventative Services Task Force, and FCC versus Consumers Research, which was about the FCC's universal service scheme and the non-delegation doctrine.

Tiny little rose, I will note, is that the dissent in Scrametti cited an amicus brief we've mentioned on the pod, authored by my dear friend Issa Kohler-Hausman and my awesome colleague Amanda Shanor.

And it was, you know, a powerful enough discussion in this Meyer dissent that the majority tried, albeit unconvincingly, to respond to that argument.

I'm going to be brief here because, although this term was long, it was consistent.

And I find, as the rose here, the fact that every lower court that encountered the birthright citizenship EO was like, yeah, that's obviously unconstitutional.

And they did it all in under 30 minutes.

I'm exaggerating, but it felt like that.

I also appreciate the lower courts essentially holding the line on these

EOs eliminating the Department of Education, firing federal workers.

Like, yes, like all of these things really require congressional intervention.

And we should, again, highlight that.

The separation of powers things is a real thing.

The thorn here, I think, is this administration, this court that is facilitating this administration, maybe even effectuating and facilitating this administration at an equal measure.

And of course, the cadre of oligarchs who apparently own us.

Well, also the appearance of all of those oligarchs at the inauguration was just

its own thing.

So in my Roses and Thorns, I guess all of these are going to be roses slash thorns.

So one is Justice Kavanaugh's concurrence in Trump versus Casa.

Steve Laddick did a phenomenal one-first piece called The New Judicial Supremacy on it, basically exposing the extent to which Brett Kavanaugh, while ostensibly being kind of a formalist in the majority opinion, Justice Barrett being an anti-formalist in his separate writing, also assuredly saying, I can and will solve everything, even though the Supreme Court has never bothered to explain most of what they do on the Shadow Docket, and insisting that the court would be in a position to provide a uniform interim rule, even though they declined to do so in this case.

So like Rose slash Thorne, Thorne in just its

grotesque obliviousness, Rose in that it basically proves everything I've ever said about Brett Kavanaugh is right.

Another Rose slash Thorne, Justice Jackson's dissent in Department of Education versus California.

This was one of the dissents from one of the shadow docket orders where she kind of broke the fourth wall and accused the court

of giving the Trump administration an early win when they were ultimately going to lose on the merits for some sake of appearances that I just found fascinating.

Thorne in that it was a dissent, you know, same Rose slash Thorne energy to Justice Kagan's dissent in Trump versus Wilcox, in which the Supreme Court basically overruled Humphrey's executor on the shadow docket.

You know, there she accused the court of favoring this president over our precedents, of creating a bespoke Fed exception and saying the order allows the president to overrule Humphreys by fiat.

So those are my roses slash thorns.

When you said that the Brett Kavanaugh was a formalist in the majority and then not a formalist in his own concurrence, it reminded me of when Strom Thurmond passed away and they noted that he had fathered an African-American child out of wedlock.

And And the newspaper report that I read called him segregationist by day, integrationist by night.

Oh my God.

Oh my God.

Schrödinger's formalism is what I'll call this, I think,

because I can't top that

description.

So I guess some additional news to note that's kind of related to fallout from this.

whatever it is we just concluded.

So one is some fallout from the court's opinion in Scrimetty.

In particular, on a recent orders list, the court did some GVRs, grant, vacate, and remand.

So, what those do is they vacate some lower court opinions and remand for the lower court to reconsider their decision in light of a Supreme Court opinion.

And this was notable to me because after the chief said in the majority opinion in Scrimetty that the case wasn't about laws that discriminated against trans people, because the Tennessee law didn't discriminate against trans people and was just about a medical procedure wink, the court GVR'd a ton of cases about laws that did discriminate against trans people, weren't just about health care, and told the lower courts, rethink this in light of Scrimetty, almost as if the limits in Scrimeti weren't real and were just some soothing BS.

Add to that, the court's rejection of the parental rights challenge in Scrimetty.

They opted not to hear a parental rights challenge to laws banning gender-affirming care for trans minors.

Chris Geidner had a phenomenal piece at Law Dork about this.

SCOTUS' parental rights message, protect anti-LGBTQ views, ignore LGBTQ people.

This is part of why I don't trust these assets on birthright, like, or just one of the reasons.

Like, they said Scrometti was just about a healthcare ban that didn't discriminate against trans people or on the basis of gender identity.

Then they go ahead and ask the lower courts to take another look at a bunch of other laws outside the healthcare context that do discriminate against trans people.

And on Thursdays, last Thursday's order list in Montana versus Planned Parenthood, Samuel Alito, the author of Dobbs, wrote with Justice Thomas that maybe the Constitution gives parents a constitutional right to prohibit their children from getting an abortion where state law allows it, i.e., the Constitution overrides some democratic, political choices that the political democratic process might make about abortion.

So so much for leaving the question about the availability of abortion access to the political process.

Also, the court just agreed to take up next term the constitutionality of state laws that exclude trans women and trans girls from participating in women's and girls sports.

Not surprising, given the eagerness of Justices Barrett, Alito, and Thomas to address the question of whether trans people constitute a protected class.

But still, add to this a recent 11th circuit decision that held that a transgender school teacher had no First Amendment right to refer to herself with she/her pronouns when Florida law prohibits her from doing so.

The court reasoned that when the teacher is in front of the classroom and engaging with students, she is a government speaker and representative of the government and accordingly can be required to misgender herself.

Obviously, this outcome would have been completely different if the trans teacher were also the school football coach who articulated her pronouns on the 50-yard line at the conclusion of each game, because then she would not be a public employee.

I see.

You know, the 11th Circuit did reject an analogy to Kennedy versus Bremerton School District in this case, you know, because religion slash trans people.

You know, line up this 11th Circuit decision with cases in other courts of appeals that say teachers have a First Amendment right to misgender students, i.e., they cannot be forced to address trans students with their correct pronouns.

And ladies and gentlemen, and non-binary listeners, what we have is a doctrine that says the First Amendment just protects your right to misgender people.

It doesn't protect your right to use correct pronouns.

It is just the perfect encapsulation of lawlessness and how they are fashioning the law just to require the Republican Party's views.

Hold up your book.

Always be closing.

Okay, good, good.

This is my book, Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.

If you haven't heard me talk about it, the New York Times Book Review recommended it, even though they called my humor somewhat cringe.

I think I'm funny, though.

So do we.

So do our listeners.

We do.

Okay.

On a less funny, more somber note, Kilmar Abrego-Garcia, the man who was wrongfully expelled to El Salvador because of a clerical error, has filed an amended complaint in his case in the District of Maryland.

The complaint asks the court to return Abrego Garcia to Maryland and restore the status quo that was in place before he was expelled to El Salvador.

And this is the really important part, I think.

The amended complaint now contains allegations about what actually happened to Mr.

Abrego Garcia while he was in Seacott, the Salvadoran mega prison where he and all of the other individuals individuals who were deported to El Salvador were held.

To our knowledge, Abrego Garcia is the first person released from Seacot.

So this would mean that this amended complaint is the first first-person testimony from someone who is able to actually account for what he witnessed happening in Seacot.

And I'll just be very clear here.

What he alleges in the amended complaint is absolutely horrifying and shocking.

It made me ill reading it.

So this is your heads up listeners.

You know, we are going to recount some of what is in the amended complaint.

Yeah, because if you haven't actually had a chance to read it, I think it's important for us to describe some of its contents.

So the complaint describes how upon arriving at Seacot, Orego Garcia was repeatedly struck by officers when he attempted to raise his head.

He was told, quote, welcome to Seacot.

Whoever enters here doesn't leave.

He was forced to strip.

He was beaten more.

He was struck in the head, frog marched to a cell where he continued to be beaten.

He describes the next day his body being covered with lumps and bruises.

He and others were then required to kneel from 9 p.m.

to 6 a.m.

in their cell with guards beating anyone who succumbed to fatigue and toppled over.

They were denied access to bathrooms.

Bright lights remained on for 24 hours a day.

Prison officials repeatedly told Brego Garcia that they would transfer him to the cells containing gang members, who they assured him would tear him apart.

He observed prisoners in nearby cells, who he understood to be gang members violently harm each other without intervention from guards or personnel.

Screams from nearby cells would ring out throughout the night without any response from prison guards or personnel.

He lost 30 pounds in the course of two weeks, which I actually didn't know was even physically possible.

What is there to say about this?

This is what the Trump administration has done to more than 200 other people.

And again, there's a lot in MAGA world about these individuals being criminals and somehow they deserve it.

But I just want to note that at least one of the individuals who is in Seacot is a young gay makeup artist, Andre Hernandez Romero.

He was the one who cried out for his mother when he had his head shaved at CCOT.

That was documented and then broadcast.

Regardless of what you think of

the individuals who the Trump administration is targeting, this is absolutely inhumane treatment, just absolutely shocking and inhumane and treatment.

And just as a reminder, in addition to Romero, the Cato Institute research that we had talked about on this podcast makes a very compelling case that a tiny subset of this 200-plus population has any kind of documented criminal history or even immigration infractions.

They have tattoos.

That seems to be the whole case against most of them.

Yeah.

Yeah.

Yeah.

They have tattoos and they are brown.

Yeah.

Which, again, if you were wondering how this administration was going to go about enforcing its immigration policy, I think racial profiling, tattoo profiling is pretty much the answer.

And think about where that goes.

And this is the administration that this Supreme Court insists on treating as any other, as just a regular administration while granting them a seemingly ever-expanding set of powers.

The presumption of regularity is quite broad.

Yeah.

As we've said, this term has been a long one.

So we thought we'd play a mashup of some of the memorable moments from oral arguments over the last term as a look back at warp speed.

So are you ready for it?

Let's do it.

Here we go.

Yeah,

the book has a clear message.

And a lot of people think it's a good message, and maybe it is a good message, but it's a message that a lot of people who hold hold on to traditional religious beliefs don't agree with.

I don't think anybody can read that and say, well, this is just telling children that there are occasions when men marry other men.

Uncle Bobby gets married to his boyfriend Jamie and everybody's happy and everything is, you know, it portrays this.

Everyone accepts this except for the little girl Chloe.

who has reservations about it.

But her mother corrects her.

No, you shouldn't have any reservations about this.

So Pride Puppy was the book that was used for the pre-kindergarten curriculum.

That's no longer in the curriculum.

That's the one where they are supposed to look for the leather and things and bondage things like that.

It's not bondage, it's a woman in a leather jacket.

It's a sex worker, right?

No.

No.

That's not correct.

No.

Gosh, I read it.

Drag queen and

correct.

Drag queen and drag queen.

Correct.

The leather that they're pointing to is a woman in a leather jacket.

And one of the words is drag queen in this.

And they're supposed to look for those.

It is an option at the end of the book, correct?

Yeah, okay.

All the religious school is saying is don't exclude us on account of our religion.

I mean, if you go and apply for to be a charter school and you're an environmental studies school, or you're a science-based school, or you're a Chinese immersion school, or you're an English-grammar-focused school, you can get in.

And then you come in and you say, Oh, we're a religious school.

It's like, oh, no, can't do that.

That's too much.

That's scary.

We're not going to do that.

And our cases have made very clear, and I think those are some of the most important cases we've had, of saying you can't treat religious people and religious institutions and religious speech as second class in the United States.

And when you have a program that's open

to all commers, except religion, no, we can't do that.

We can do everything else.

That

seems like rank discrimination against religion.

And that's the concern that I think you need to deal with here.

So, one of the parties here is the owner of Pornhub, right?

Yes.

And what percentage of the material on that is not obscene as to children?

Well, Your Honor, if we're talking about the youngest minors, I would agree that most of it is.

And that is how we reach out to you.

Is it like the old Playboy magazine?

You have essays there by the modern-day equivalent equivalent of Gord Vidal and William F.

Buckley, Jr.

Not in that sense.

All right, let's go down to what's the second most popular porn site.

Your Honor, I don't have the answer.

You don't know you represent these people.

What the school district has said, which is what Monaghan said.

You believe that Mr.

Martinez and the Solicitor General are lying?

Is that your argument?

We should be more careful with your words.

Okay, well, they should be more careful in mischaracterizing a position.

Ms.

Blatt,

I confess I'm still troubled by your suggestion that your friends on the other side have lied.

Okay, let's pull up.

Yeah, I think we're going to have to here.

And I'd ask you to reconsider that phrase.

At oral argument

was incorrect.

Incorrect is fine.

People make mistakes.

You can accuse people of being incorrect, but lying.

Ms.

Blatt, if I might finish.

Sure.

Lying is another matter.

One could interpret those perhaps different ways, but surely a reasonable person could interpret them as arguing for a special rule in the educational context, correct?

No, only because of the.

Ms.

Blatt.

Okay, well, you and I mean.

A reasonable person, all of those emphasize the unique context of primary and secondary education and the need for a special rule, don't they?

Fine, but what I'm debating

to.

Then would you withdraw your accusation?

I'll withdraw it.

Thank you.

That's it.

And the government doesn't care about that.

I mean,

the government is fine with you doing that.

You can invent it yourself.

It doesn't even care what content that displays, cat videos or whatever.

I agree.

But then the question I would ask if the government said that, which I think kind of in the reply brief, maybe the government does say that, is that how on earth are you then serving a national security interest?

You know, if all you're doing is just saying, we don't like a foreign country rearranging cat and dance videos, like it's hard to come in and make a national security argument.

That's true, but that argument is that the average American won't be able to figure out that the cat

feed he's getting on TikTok could be manipulated, even though there's a disclosure saying it could be manipulated.

That's true of every search engine.

I mean, you can take any of these algorithms, whether it's X or whether it's

you name it.

What are the new ones?

Blue Sky.

I mean, none of these, none of these are apparent, right?

You get what you get, and you think that's puzzling.

And

I mean, I don't know if she, I guess the pool is probably not deep enough for her to get crushed in it, but

the gravity is dragging her down in the pool.

There's an internal process going on in her body whereby her life is sucked away from her.

I apologize, I'm not a doctor.

I couldn't quite tell you what happens with asphyxiation, but the body is going to be attacking itself there, gasping for air, eventually to die.

I'm just going to ask you to put yourself in a different frame of mind, hard to do, assume something you won't want to assume.

But the assumption that I want you to make is that on the merits, which of course you did not take to this court, on the merits you are wrong, that the EO is unlawful.

And I want to ask you, if we assume that,

how do we get to that result on your view of the rules?

It is very difficult for me to adapt the hyperlabel, but I will.

I think that that that's the important question in this case.

Let's just assume you're dead wrong.

I think assume you're dead wrong is an apt place to let this term recap rest.

So we're out.

That's probably right, although the detailed graphic description of drowning also really spoke to me.

Eric Fagan was describing the experience of the last term for so many of us.

Yeah.

Yes.

And he didn't even know it.

Closing Closing thoughts, any?

This was grim as thought.

Yeah.

Yeah.

I mean, I just, I maybe a closing thought is a looking forward thought, which is this was so grim.

And next term is also going to be insane, if anything, even crazier.

So between the transgender athletes case, the Voting Rights Act re-argument that we've mentioned already, the huge campaign finance case, possible return of birthright citizenship, and the constitutional challenge to independent agencies, in addition to all of the many shadow docket cases, which, again, as Vladic reminds us, the court is still sitting on a bunch of.

So it's not like we get to rest and recharge until October.

This is going to be a crazy summer and then an even crazier term.

And let me just throw into the mix that depending on how the political landscape develops over the course of the next six, nine months, there is a very real possibility of retirement announcements.

I would think

by

by January,

if I had to guess, because if the Senate map looks like it might result in the Democrats attaining a Senate majority, one or both of Alito or Thomas, I think, will very likely announce.

Justice Eileen Cannon or Emile Beauvais.

Gosh, oh my gosh, last year.

Yeah.

Okay, highlights.

We need a positive note.

I will do a positive note and play the role of Kate Shaw, given the bleakness that Kate just offered us.

So

we've turned Kate.

We've turned her.

It's been a few turns now.

I think I have been turned.

No, Kate.

You were trying valiantly to stay in the light, but we brought you down.

Leah and I got our hooks into you and we made you dark.

Well, and I mean, so did Sam Alito.

Yeah.

As a peace offering, last week the Wisconsin Supreme Court issued their much-awaited decision on whether the state's 1800s abortion ban, complete and total abortion ban remains in effect in the Badger state.

The progressive majority on the Wisconsin Supreme Court said that the state's 1800s-era abortion ban is not in effect because the Wisconsin legislature effectively repealed that flat-out ban by creating a comprehensive set of regulations on abortion.

So, as a result, that prohibition on abortion is not going to go into effect and allows abortion access to exist in the Badger state.

Wanted to highlight not just the great majority opinion by Justice Rebecca Dalett, but also a separate writing by now Chief Justice Jill Kurofsky.

And in...

Justice Kurofsky's Chief Justice Kurofsky's concurrence, she has a section that is about honoring their lives and their stories, in which she names women who have died recently because of abortion restrictions, Candy Miller, Amber Thurman, Giseli Barnica.

And she notes that not only should those women be alive today, but that their

suffering and experiences were foretold by the suffering of women generations ago.

And she talks about her great-grandmother, Julia Cowen, dying because she sought to obtain an abortion during an era when abortions were prohibited.

So I think an extremely remarkable, powerful writing, and an outcome that also reminds us that courts can be better and they can do better if you fight for them.

And if you have the Chief Justice of our hearts actually serving on courts.

Nothing but respect for my Chief Justice, Jill Korofsky.

Amen.

All right, let's close up with some favorite things just to give people something to do over the summer.

I'll start.

One of my favorite things in the last couple of weeks was Footnote 12 of Stanley versus City of Stanford, where the Justice of My Heart, Justice Katanji Brown Jackson, dragged Neil Gorsuch for filth, calling his textual healing faithless and outcome determinative.

So inject that into my veins.

I'm just going to keep reading it over and over again.

That is my ASMR and I love it.

I will also note that I really enjoyed Emily Bazelon and Matthias Schwartz's New York Times profile on Judge Amir Ali's first seven months on the district of the District of Columbia.

I think it's always really interesting to think about how judges set up their chambers and sort of adapt to the project of being a new judge.

And I think doing so in this particular moment was especially challenging.

And I think this is a really good examination of those challenges and what that was like.

Also want to recommend Linda Greenhouses.

This is the real impact of the Supreme Court's Planned Parenthood decision.

That's an op-ed piece in the New York Times on Medina versus Planned Parenthood of South Atlantic.

Really fantastic.

And then finally,

I will just note a note that I read.

And the note is titled, When Rational Basis Review Bit.

It is featured in the Harvard Law Review, and it's a history of rational basis review that is tethered to a discussion of a Louisiana case in which a widow lost her job arranging flowers at a local grocery store because the state of Louisiana requires that such floral arranging be done done by licensed florists.

So it's a great piece just of legal history and a really wonderful piece of student writing.

Regrettably, the student isn't identified, but I just wanted to highlight this as something that I really enjoyed reading.

So I have a slew of things.

Several of them are term recaps.

You know, it's not like I want to consume more content on the Supreme Court, but there's so much great writing being done about the moment we are in that I want to highlight a lot of it.

So Steve Laddock's post at One First Street, which I've already mentioned, A New Kind of Judicial Supremacy, is, I think, just a terrific piece on Trump versus Casa and the context for the term.

Ellie Mistahl's piece in The Nation, Samuel Alito Takes Pride in Gay Bashing.

Very pointed, powerful takedown of Mahmoud versus Taylor.

Sherilyn Eiffel's post, A Court Without the Range on Sherilyn's newsletter on Substack, also on Trump versus Casa.

Kate, I love your piece in the New York Times, a culture of disdain, the Supreme Court's actions speak louder than its words.

Another recent piece I liked, Alexandra Petrize in The Atlantic.

With the big, beautiful bill, you can now sponsor a billionaire of your choosing.

She moved to the Atlantic in case listeners weren't aware and were looking for her.

In the slightly lighter fare, Andor Season 2 has just been a wonderful show to watch in the midst of rising fascism because it is about living under and resistance to fascism.

Lorde's recent album, I know it's what was that?

It's received mixed reviews.

I like the album.

So I also loved it.

I love current affairs.

I love broken glass.

I love shapeshifters.

I really like the album.

Like Slash Love,

Donald Trump announcing Trump fragrances and the video announcement of the Trump fragrances, just the specter of the president hawking his perfume and the website gettrumpfragrances.com.

I don't know.

I get like a trendy term.

I mean, from Jimmy Carter selling his peanut farm to trumpfragrances.com.

It really is just the arc of decline of a once great nation.

Sorry, Melissa, I interrupted you.

No.

Did you all read the New York Times story last year about how teenage boys are, or pre-teen boys, are really into scent maxing where they're just like, they're really into cologne.

And I would like to to see how the teenage boy audience responds to Trump fragrances.

Like, I think this will really be telling.

Are they truly red-pilled or are they still up for grabs if they say no to the Trump fragrances?

I am also, I know no one who owns it.

I don't even know if you can actually get it yet, but I am sure it smells like trash.

I am sure it doesn't.

It smells like an emolument.

Yep.

No, our candles smell like emoluments and those smell good.

So this doesn't smell like that.

I want to see that.

Our eucalyptus candle slapped so hard.

I love eucalyptus as a scent.

This is not what I smell as a sound.

I mean, it smelled like the inside of a private jet.

So, that's true.

Like a Qatari private jet.

That's true.

I'm just going to make a few additional recommendations.

One, Bob Bauer, I thought, had a really good piece in his executive functions substack about the appalling decision by Paramount, the parent company of CBS, to settle the lawsuit filed by Trump because Trump didn't like the way 60 Minutes edited an interview with Kamala Harris before an election that Trump won.

No plausible legal theory of injury gives Trump any chance of winning, I don't think.

But the real politic of this is that CBS is looking for a buyer and

they want to stay in the good graces of this administration and it's a vile blow to the rule of law and to journalistic independence.

And I'm glad that Bob was as unsparing as he was about it.

A couple of other things.

One, a study published last week in in The Lancet about the monstrous human toll of the decision by Elon Musk, Doge, and the Trump administration to destroy USAID and the United States' foreign aid.

So these researchers, there's like 10 authors on the study, they estimate that if the current cuts continue until 2030, so that is just five years from now, up to 14 million people who otherwise would have lived will die, including over 4 million children.

It is impossible to get your head around those numbers.

Party life.

Yeah, exactly.

I did want to mention the Times book review that includes Leah's book, which I guess doesn't like mean girl references, but is otherwise a fantastic review.

And it was in the context of kind of a group review/slash recommendation of a number of SCOTUS books.

The author of the review is Alexis Coe.

The title of the piece was Great Books on American History and the Supreme Court, although I think the headline has changed.

But it includes not just Leah's wonderful Lawless, but also Rebecca Nagel's By The Fire We Carry, Anthony Lewis's classic Gideon's Trumpet, Richard Kluger's classic Simple Justice.

So, kind of a good summer SCOTUS reading list if you are looking to go deep on various eras in the Supreme Court's history.

And then two books I haven't read yet, but that will be out this fall, and I am beyond excited to read.

So, one is Arin Carmone's Unbearable, Five Women and the Perils of Pregnancy in America.

And the other is the Harvard historian Jill Lapore's We the People, a History of the U.S.

Constitution.

I love basically everything Lepore ever does, and I cannot wait to read that book.

Yeah, so I got an advanced reader copy of Irin's book.

It is fabulous, and I will be plugging it when we do our Dobbs retrospective later this summer.

And also look forward to hopefully discussing it with her on the podcast.

Awesome.

All right, before we go, listeners, let's take a beat to fill you in on what our plans are for the summer.

I will be getting on a private jet with my emotional support billionaire to go to a Fantastico location somewhere in Europe.

I'm just kidding.

We're going to be here.

We're going to be doing lots of episodes.

We probably

will

not be done with the Supreme Court beat because shadow dockets are going to shadow docket and we're going to be there.

So, just so you understand, over the summer and through the beginning of October, the Supreme Court doesn't hear oral argument.

So, there won't be any cases for the court to issue bad decisions in on the merits docket, at least for the summer.

That doesn't mean they will not issue some terrible decisions on the shadow docket.

So, we are going to be covering that.

There will still be legal news.

We will be covering what the lower courts are going to do as they try valiantly to do their jobs with one hand tied behind their back.

That's a whole different story.

We'll also be covering what Article II will do now that they have been emboldened and facilitated and effectuated by Article III.

So this is all to say that we will still be in your earholes with a combination of legal news.

We'll also have some deep dives on books that we loved and certain evergreen topics that we think you would like to know about.

So we are still going to have a hot strict scrutiny summer, a very appropriate hot strict scrutiny summer.

And we hope that you will join us.

Just a quick note about the summer episodes in part because it is the summer.

You know, there will be some episodes on which not all three of us might be hosting, but don't worry, we will return in full force once the new term begins.

And there will be some episodes in which all three of us are on as well.

We have to have time for our emotional support billionaires.

Exactly.

They impose a lot of demands on us.

And who are we to say no?

So as we wrap, just want to say thank you to our listeners for supporting the show and making it possible amidst this hellscape when there are so many things to focus on and pay attention to.

We really do appreciate you sharing your your time with us.

We loved the chance to meet a lot of you in New York and DC at our live shows this summer.

We'll be in Chicago in October and other locales to be announced soon.

So we really hope we have a chance to meet more of you in person soon.

So also in the spirit of closing, I will just make one final plug for my recently published book,

Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.

Look, I wrote a book.

I'm kind of proud of what I did.

I enjoyed it, so I'm going to plug it.

But I recognize that there is a moment to stop doing a lot of things.

And that moment is probably now, at least until the paperback edition comes out.

Although that might not stop me from like noting things when the court does then that call to mind the book, but it's not.

It's your podcast, Leah.

You don't have to stop.

Well, Republicans in Congress just passed one of the cruelest and least popular pieces of legislation in history.

It's going to kick millions of people off their health care so that billionaires and millionaires can get another massive tax break.

Many House Republicans who voted in favor of this bill won in their states by slim margins, and they're up for re-election next year.

We can vote them out and win back the House and stop future awful legislation of this sort and hold these individuals accountable.

You can donate to Vote Save America's Take Back the House fund to support must-win state house races next year.

Just go to votesaveamerica.com forward slash house for more.

This was paid for by Vote Save America, and you can learn more at votesaveamerica.com.

This ad has not been authorized by any candidate or candidates committee.

And one more summer reading alert.

Amanda Lippman's new book, When We're in Charge, which you should know about because Leah had a great conversation with her on the pod a couple of months ago, is out now from Crooked Reads.

It's a guidebook to leadership for the next generation from the founder of the wonderful organization Run for Something, and it's the newest release from Crooked's publishing imprint.

When We're in Charge makes a great gift for new graduates, for friends celebrating a big promotion, or really anyone looking to up their beach reading game this summer.

Plus, you can complete your book look with an accompanying tote if you head to crooked.com slash store for the exclusive tote bundle.

Or you can just head straight to crooked.com slash books to get the book.

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

Produced and edited by Melody Rowell.

Michael Goldsmith is our associate producer.

We get audio support from Kyle Seglin and Charlotte Landis.

Our music is by Eddie Cooper.

We get production support from Madeline Herringer, Katie Long, and Ari Schwartz.

Matt DeGroote is our head of production, and we are thankful for our digital team, Ben Hethcote and Joe Matoski.

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.

Find us at youtube.com slash at strict scrutiny podcast.

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

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

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