9-0, but Make It Complicated

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You host a podcast, correct?

And that is called strict scrutiny.

Correct?

You host a pod, host a pod, post a podcast, correct?

And that is called, that is called

strict scrutiny.

Strict scrutiny.

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.

And wow, it has been a week for this podcast, for each of us, and for the country.

So we're going to start by bringing you up to speed on some of the executive branch's latest moves in its campaign of lawlessness.

We'll then cover decisions the court has issued since our last show, and we will end with some court culture.

First up, article too fascist, too furious.

So last Wednesday evening, the president unleashed a travel ban.

That is a bar on immigrant and non-immigrant visas for nationals of several countries, as well as restrictions on certain kinds of visas for the nationals of other countries.

Nationals from the following countries are subject to the flat-out ban.

Afghanistan, Burma, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen.

What do they all have in common?

Nope.

Nothing's coming to mind.

Nothing's coming to mind.

So that's not all.

Nationals from the following list of countries are subject to the other restrictions.

That's Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela.

And if all of this sounds familiar, then you were probably around during the first Trump administration.

In that hellscape, Trump announced as a candidate that he would order a complete and total shutdown of Muslims entering the United States.

That's literally a quote.

Then, within the first few weeks of his becoming president for the first time, Trump, without warning, announced a ban on entry from several Muslim-majority countries.

You might remember the chaos surrounding that ban.

People were stuck at airports because they had boarded flights bound for the United States and were mid-air when the order announced they wouldn't be allowed to enter the country.

So, not only was the public not given any notice, the State Department and the Department of Homeland Security were similarly not briefed.

And so, there were no processes in place whatsoever.

Because that's how you government executives.

That's how you go.

So unitary.

So unitary.

In any event, the United States Supreme Court in all of its glory, and of course, in a decision by noted institutionalist John G.

Roberts, eventually upheld the third iteration of the travel ban.

And this was after allowing the administration to partially implement the second iteration of the ban.

The third version purported to be more legitimate, and it appeared to have emerged from some kind of intergovernmental process so good work fellas it also didn't apply to green card holders so that certainly helped but all to say that the third iteration which the court ultimately found to satisfy the requirements of the constitution appeared to be somewhat reverse engineered cleansing it of its original origin story which was of course rooted in that anti-Muslim animus.

So realizing that the Supreme Court would let him do a little racist xenophobia animus, as long as there was some minimal effort to pretend it wasn't racist xenophobia animus, this new ban, which we're calling Travel Ban 4.0, also proclaims that it is the product of some kind of departmental review process.

The order purports to restrict travel from the aforementioned countries because it says those countries lack sufficient processes to screen applicants.

And because some people from the countries overstayed their visas, of course, everyone else from the same countries would overstay their visas too.

Children, this is what we call a stereotype.

The order also went out of its way to smear Haitians in particular.

It noted: quote: Hundreds of thousands of illegal Haitian aliens flooded into the United States during the Biden administration.

This influx harms American communities by creating acute risks of increased overstay rates, establishment of criminal networks, and other national security threats.

Hmm.

Just going to say, all of this this seems to be entirely on brand.

And by on-brand, I mean this.

They're eating the dogs, the people that came in.

They're eating the cats.

I really could live the rest of my life without ever hearing that clip again.

So listen.

Or could you remixes?

The TikTok remixes and the dances were something.

Could you tolerate it more if it were mixed in with Elena Kagan?

Just assume you're dead wrong.

Like, what about that?

That mashup could be amazing.

Way more about that I could listen to.

That's true.

They're eating the dogs.

They're eating the cats.

Just assume you're dead wrong.

Just assume you're dead wrong.

That's it.

Wait, if no one's done this, please.

Definitely do it.

Get on it.

Definitely start with please.

All right.

Well, that would take the edge off because these are dark times, right?

This order is riddled with animus.

And, you know, because, of course, the malevolence and the incompetence are always layered atop one another in this administration, it also reflects complete policy incoherence.

The administration previously rescinded temporary protected status for nationals of certain countries, including countries on this list, on the specific ground that conditions in those countries had so improved that TPS was no longer warranted.

But it now proclaims those countries as lacking the capacity to actually screen visa applicants or migrants.

Little bit of tension.

The administration has also tried to expel people to two of the countries on the list, Libya and Sudan, that it now says lack the infrastructure to reliably screen and process migrants.

And you would think all of this would call into question the lawfulness of this order, and yet we are not that optimistic that SCODIS will care.

Look at you parsing Kate, like getting into the interstices here.

It's almost like you're in Article II, but not, not this Article II.

No.

This is not the kind of thing they do in Article II, not this time around.

No.

No.

So that wasn't even the only illegal executive order issued last week.

It never is.

The president also issued a proclamation canceling visas for international students and researchers at Harvard.

The proclamation announces that, in news to everyone, including those at Harvard, that crime rates are apparently up at Harvard, including violent crime rates.

So obviously it has to be the foreigners' fault.

Children, this is what we call a baseless xenophobic accusation.

The proclamation also insists that it is suspending the Student Exchange Visa Program, or SEVP, because it claims, once again, without evidence, who needs evidence, that Harvard continues to use affirmative action.

Two things about this claim.

First, it's not entirely clear how the alleged continuation of race conscious admissions policies and the student exchange visa program are related, but whatever.

Second, I'm not exactly sure what the evidence is for the claim that Harvard continues to use race conscious admissions policies.

So is it that the number of black and brown students admitted to Harvard didn't immediately drop to zero because of merit?

Is that the point?

Yep.

Seems like pretty good.

Well, I'm just going to note: if that is the logic, the antipathy for race-conscious admissions processes seems less about fairness and more about rank racial supremacy.

But, whatever, folks, don't let any of this logic stop you from punishing Harvard for exercising First Amendment rights and refusing to bend the knee.

Carry on.

In more Article 2 shenanigans, this is a shenanigan we weren't able to cover at the live show, but wanted to note, and that's that the Department of Justice, headed by one Pamela Joe Bondi, filed some voting rights litigation that is more like voting wrongs litigation.

Specifically, on the heels of Justice Allison Riggs' victory in the North Carolina Supreme Court race, which Riggs won by a few hundred votes, remember, won back in November, but was only declared finally the winner a few weeks ago.

In the wake of that, DOJ has decided something must be wrong with the voting system in North Carolina, because when the Democratic candidate wins, something is deeply suspicious.

So, enter DOJ, which is suing North Carolina, arguing that the state has not done enough to purge its voter rolls, that is, the list of registered voters that determine who can vote in an election.

The basic claim is that North Carolina registered voters without requiring a driver's license or the last four digits of their social security number.

Unless you think the geniuses at the Department of Justice are innovating new theories of voting wrongs, we should explain that DOJ's move really echoes a complaint that Jefferson Griffin the Turd, or maybe the second or third, had.

Hard to say, but DOJ seems to be borrowing from the claims Griffin made when he tried to overturn the results of the North Carolina Supreme Court election and challenge his loss to justice rights.

Does that make this a sheep eat?

Are we going to give Pamela Joe another one?

She's a little bit different for sheep eating?

She's always sheepheading.

Pamela Joe Bondi is, yeah, she's big on it.

She's like, no more hymposiums.

I'm just sheep eating my way through the DOJ.

Good for her.

At least we now know that at least some portion of the Department of Justice here, the Civil Rights Division, is actually committed to enforcing civil rights, that is, the rights of Republicans with Confederate names to win elections by disenfranchising voters.

In more Article 2 wrongs.

So this last week, Article 2 and their enablers in Article 1 got quite explicit about how they view the whole law thing.

We wanted to play two illustrative clips.

Here's Russ Vought.

We're certainly not taking impoundment off the table.

We're not in love with the law.

And here's Louisiana Senator John Kennedy, aka the gentleman from the Confederacy.

Harvard is, in many respects, violating federal law.

They just are.

And they say, but we're entitled to the money anyway.

And they're not.

And

it'll be interesting and

impactful to see how it turns out.

And what federal law is Harvard violating?

Well, here's what I think Harvard is doing.

Harvard practices ideological capture.

We're just going to leave that there.

Supreme Court, we know you will find some inspo in these remarks for the remainder of your decisions.

Can I just pause for one second?

We'll get to this later in the episode, but as you can see, do you know this gentleman, Kate?

Communicated.

No, I do, but I also know everything, I'm going to get over this, but everything that comes out of our mouth, I am now hearing

being posed to us by either Senator Kennedy or Senator Blackburn.

Did you refer to the gentleman from the Confederacy?

Did you say too fascist, too furious?

Did you, I mean,

you know, it's all

right.

I said it, and it was awesome.

Can I defend defend it now i mean do you remember that clip of sex in the city it's like a mashup of like when samantha is at the clinic and she's going to get an aids test and they start asking her about her sexual practices and she's like yes yes only when scared yes also yes yes

i probably should have watched that as like a hype up exercise before testifying last week did you refer to senator cruz as the gentleman from cancun yes did you refer to senator kennedy as the gentleman from the confederacy Yes.

Yes.

All right.

Next time, ladies.

Next time.

Only one surprised.

All right.

We'll come back to set a testimony.

We're going to get you pressed.

Back to Article 2.

Don't worry.

That's true.

Okay.

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moving on to article three now okay good i'm glad we're back on article three because guess what ladies bad decision season continues apace we got one decision that we talked about on our live show but it was just the one this week scotus was like guess what we're showing our work there were a bunch of decisions that they dropped this week.

And not surprisingly, several of these decisions were predictably bad, though not as bad as they could have been.

And of course, because this is the Supreme Court, one of these quote-unquote decisions was actually a non-decision.

So we'll talk about that.

All of this is inevitably going to prompt some in the legacy media to proclaim that the Supreme Court isn't so bad, really.

It's actually very, very moderate.

They reach unanimity so many times.

They're actually really together.

There are no ideological divisions.

Blah, blah, blah.

Guess what, folks?

This is just a warm-up.

This is just John Roberts and his boys buying themselves some very good publicity as they get ready to go guns blazing into the real heart of bad decision season where it's all going to come out.

So hold off on those hot takes about this moderate, unanimous Supreme Court because this is just the PR spin.

So, to celebrate Pride Month, the Supreme Court announced that all sexual orientations matter, and that straight people can be discriminated against too.

That's right, we got the decision in Ames versus Ohio Department of Youth Services.

We've previously discussed this case in the context of the rights ongoing effort to extend the underlying logic of Students for Fair Admissions versus Harvard, that members of majority groups are the real victims of discrimination, to everything.

Ames involves an Ohio woman who says she was discriminated against because she was straight.

She was first passed over for a promotion that went to a gay woman and later demoted, only to see her prior position go to a gay man.

And obviously, she surmised these gays, they're trying to murder me.

Hat tip Jennifer Coolidge.

In reality.

I am familiar with White Lotus, just to be clear.

Great.

Proud of you.

Love it.

Proud of you.

But Marlene Ames basically said that her straight supervisors were discriminating against her and in favor of gay people.

Hmm, for like the fifth time this episode.

But the specific question before the court in the case wasn't actually whether she was in fact discriminated against because she is straight.

Instead, it's a more abstract legal question that is, specifically, when a member of a majority group, like straight people, brings a discrimination claim and they don't have direct evidence of discrimination, do they need to show, quote, background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority?

So Title VII of the Civil Rights Act of 1964 does not, by its terms, require majority plaintiffs to do so, but a number of circuit courts, including the Sixth Circuit at issue here, have required majority plaintiffs to satisfy this kind of separate evidentiary standard.

And in this case, the Supreme Court unanimously decided that those courts were all wrong to require a plaintiff like this one, again, a member of a majority group, to make this kind of showing in order to bring a claim.

Justice Jackson wrote the opinion for the unanimous court, and she held that under Title VII, the requirements to bring a claim are the same, whether you are a member of a majority group or a member of a minority group.

That is to say, regardless of what group you're in, you have to satisfy the McDonnell Douglas versus Green standard.

McDonnell Douglas versus Green is a 1973 Title VII case that established the three-step burden-shifting framework for intentional discrimination claims.

So now, this case will return to the district court, and Ms.

Ames will have another opportunity to present her case.

And

who knows how it will be resolved?

Although there is some indication here that she may very well lose even on this second go-around, because the courts had earlier said that her sex discrimination claim failed under McDonnell Douglas because her employer had a legitimate non-pretextual reason not to promote her.

But outside of this particular case, I think I

am concerned that the Supreme Court's decision will make it easier for heterosexual and white plaintiffs to bring discrimination claims, which tracks this curse timeline.

See Justice Thomas's concurrence, which we're going to talk about in a second.

Again, happy pride, straight rights, says the Supreme Court.

Well, here's a silver lining, though.

So, and again, maybe this sort of gestures to why this was able to be unanimous, despite the fact that it does open the door to these kinds of reverse discrimination claims.

The unanimous court cited Bostock versus Clayton County.

And Bostock, of course, is the 2020 decision that concluded that discrimination on the basis of sexual orientation and gender identity is discrimination on the basis of sex for purposes of Title VII.

This is a sexual orientation discrimination claim.

And I think the fact that the court cited Bostock here makes it harder for them to back away from Bostock in other circumstances should some litigant decide to ask them to narrow or even rescind or overrule Bostock entirely.

And there are plenty in the conservative legal movement who have been hammering away at Bostock since it was decided in 2020.

And I think that's good here.

The fact that they were able to get them to all come around that Bostock is still good law.

And the fact that Sam Alito signed on to an opinion citing Bostock without launching into a homophobic screed is also a major accomplishment.

So good on them.

Yeah, I mean, I obviously wish they had said more about Bostock.

I wish they had mentioned that.

But then it wouldn't be unanimous, Kate.

Totally.

No, no, no.

But so it's just, it's an important but very narrow silver lining.

There's no mention of the fact that Bostock holds that not just sexual orientation discrimination, but gender identity discrimination is encompassed within the prohibition on sex discrimination in Title VII.

There is no real discussion of Bostock.

But yeah, having unanimously said that she can state a claim for sexual orientation discrimination under Title VII without being subject to some special sort of threshold showing, that I think does, as you were just saying, make it much harder, not impossible, because they can obviously, you know, decide to change course.

But I think it is a very helpful additional sort of overlay on top of Bostock should anybody come for it, which I think is very likely to happen.

So that's, you know, silver lining.

But, of course, we hasten to add, and we might be saying this a lot, and we think that's because people sort of reading these opinions and commenting on the court probably need to hear hear it.

But we kind of need to understand the court's unanimity in this case and some of the others we're going to be discussing today in a very particular way.

And to do that, I think we need to talk about Justice Thomas' separate writing in Ames, which is this kind of bizarro world version of what SCOTUS could have said, you know, literally just very plausibly might have said in this case without the calming, law-forward influences of the Democratic appointee.

So we are often, I think, critical of the Democratic appointees if we think they are engaging in appeasement that we think will ultimately be unsuccessful or even counterproductive.

But a case like this does show you that they sometimes are able to divert onto a path of sanity something that could go very, very badly.

And I think the Thomas concurrence in this case really is a case study in that.

So this is the point in the episode where

We're just going to call this segment, we need to talk about Justice Thomas's concurrence.

Okay, so let's start there.

So Justice Thomas filed a concurrence in this case.

And again, this is very typical of him.

He often has things that he wants to say, go a little bit further, even though he nominally agrees with the outcome.

He wants to go a little further, maybe issue some invitations to do more, say some other things.

Typically, he doesn't get a lot of takers for these.

He often does solo concurrences.

Here, he got Justice Gorsuch to join him.

So I think that is significant.

But this is a doozy of a concurrence.

Justice Thomas, straight out of the gate, decides that he is going to cite a brief filed on behalf of America First Legal.

That is Stephen Miller's organization.

Specifically, Justice Thomas cited the following from the America First Brief: quote, A number of this nation's largest and most prestigious employers have overtly discriminated against those they deem members of so-called majority groups.

American employers have long been obsessed with diversity, equity, and inclusion initiatives and affirmative action plans.

Initiatives of this kind have often led to overt discrimination against those perceived to be in the majority.

And then he cites himself.

So he cites the opinion in SFFA versus Harvard.

He then goes on to explain that the courts have applied uniquely disadvantageous rules only to white and male plaintiffs.

And

civil rights litigants would like a word here, but just putting that out there.

Yeah.

So going back to the question we were gesturing at, what do the Democratic appointees get with unanimity?

They avoid a majority opinion that suggests straight white men are really, really, really, really discriminated against, an opinion that might have included a bunch of language to that effect that straight white male plaintiffs could point to to make reverse discrimination claims easier and sympathetic courts could invoke.

And by finding common narrow ground with the Republican appointees, they ward off a fractured decision that would have decided much more.

And, you know, for whatever it's worth, I think the decision is legally correct formally in the sense that the plaintiff made out a prima facie case, but it should fail at a later step of the McDonnell-Douglas framework where the employer's justification for why they took the adverse employment action might seem additionally plausible because of the rarity of discrimination against straight people for being straight.

That's kind of my my way of understanding how this framework should work.

Aaron Ross Powell, and as Leah said, not having a majority opinion with this language is really, really important.

Of course, white male plaintiffs or white plaintiffs or straight plaintiffs who want to bring these claims can still point to the concurrence, right?

That is definitely the case.

And enterprising lower court judges will pick up what Justice Thomas has put down.

So we have seen that playbook play out many times, but it's obviously really different if it's language in a majority opinion.

And it's, in this instance, great that it's not there.

But there is no question, I think, to our mind, that this opinion will make it easier for reverse discrimination claims to move forward and not be screened out at the initial stage of a case as they were in the Sixth Circuit and a bunch of other circuits that used this threshold test until this opinion.

And the political context in which this is taking place is important too.

As we have talked about, the Trump administration is not so subtly suggesting that everyone who is not a straight white cis male and who is in a position of authority got their position illegitimately through DEI full stop.

They are stoking grievance flames and egging this on.

And I think this case has to be understood in that context.

With that in mind, we should also note that...

As is the case with many Thomas concurrences, there is an implicit invitation here inviting litigants to go forward and do more.

So another part of the Thomas concurrence basically says, hey guys, let's be legends and get rid of McDonnell Douglas versus Green.

That is the 1973 Title VII precedent that sets forth that three-part burden-shifting framework for intentional discrimination claims.

Justice Thomas wrote in this concurrence, quote, I seriously doubt that the McDonnell Douglas framework is a suitable tool for evaluating Title VII claims at summary judgment.

In my view, the framework is incompatible with the summary judgment standard.

It fails to encompass the various ways in which a plaintiff could prove his claim.

It requires courts to maintain artificial distinctions between direct and circumstantial evidence, and it has created outsized judicial confusion.

For example, Justice Thomas is confused about whether black people experience discrimination, but he is not at all confused about white guys experiencing it.

So that's the confusion totally resolved.

So speaking of reverse discrimination and Stephen Miller, we wanted to acknowledge a New York Times story about the administration's investigation, that's in air quotes, into the Harvard Law Review.

It appears that the administration had a whistleblower, a then student at Harvard Law, who has since graduated and was apparently feeding them information, according to this story.

Even more curious, the administration hired said whistleblower right out of law school.

And the Times piece suggests that the whistleblower was actually in discussions with the administration about a possible job at the same time he was feeding the administration information about the law review.

Hmm, curious sir and curiouser.

This is actually even better than the FedSOC job network.

I mean like this is like you maybe get a clerkship if you're in FedSOC, but this, you go straight to the administration.

Yeah.

Love it.

Can't beat it.

Love it.

There were

this past week even more decisions in which the Democratic appointees were forced to take one for the team, where the team is the law and democracy.

So let's let's get into those as well.

All right.

So we also got the opinion in Catholic Charities Bureau versus Wisconsin Labor and Industry Review Commission.

This is the case about whether the Wisconsin Supreme Court and Wisconsin law could deny a state tax exemption, that is for taxes related to unemployment insurance, to a religious charitable organization that offers services to the poor, but where the organization does not engage in proselytizing.

So the Wisconsin Supreme Court had concluded that this organization, Catholic Charities, did not qualify for a tax exemption because it did not satisfy a core condition under this particular provision of law of being a religious charitable organization because it did not engage in proselytizing.

And Justice Sotomayor wrote for the majority, and she wrote as narrow a majority opinion as I think you could while also ruling for Catholic charities.

Her opinion explained that the condition, which required an organization to engage in proselytizing in order to receive the tax exemption, unconstitutionally discriminates between different religious denominations, some of which are able to proselytize according to their religious doctrines, and some of which are prohibited from doing so.

Justice Sotomayor wrote,

Put simply, petitioners could qualify for the exemption while providing their current charitable services if they engaged in proselytization or if they limited their services to fellow Catholics.

Petitioners' Catholic faith, however, bars them from satisfying those criteria.

Catholic teaching, petitioners say, forbids, quote, misusing works of charity for purposes of proselytism, end quote.

So, in the spirit of looking on the bright side, the Supreme Court finally found an Establishment Clause violation that it was willing to enforce.

So, that's something.

Now, it just so happened that this particular Establishment Clause violation resulted in public money going to religious organizations.

You know, twist, right?

Exactly.

Big twist on the establishment clause, or at least religious organizations not having to pay, you know, into the public fisc um so i don't know maybe this will mean the supreme court will have a harder time saying the establishment clause has been abandoned

not this establishment clause the other one that's the other one okay okay oh the i'm not going to steal the little bit of joy that leah was trying to identify i'm going to stick with the joy which is that they there's one establishment clause and at least in this opinion they are willing to concede it remains a part of the constitution only when it's doing good stuff though kate

Right.

Yeah, sure.

But at least it's there.

And, you know, I'm going to hold on to that.

But as with the previous discussion, to emphasize the context in which this opinion was issued, the establishment clause gets one more hurrah.

And also this unanimity occurs.

It is possible that the opinion could have been written way, way more broadly, as Justice Thomas's, once again, separate writing indicated.

So Thomas would have seen.

It's like an alternative conservative universe.

It really is,

completely.

Yes.

And it's like we're real close to it actually, these being majority opinions.

Yes.

And so the willingness of the Democratic appointees to go along and even author these opinions actually comes into focus when you kind of understand it in that context.

So let's talk about what Thomas's separate writing in this case said.

He basically would have said.

Wait, wait, we need to talk about Justice Thomas's concurrence.

Yeah, exactly.

Segment, segment, Kate.

We need to talk about this.

We need to talk about Justice Thomas's concurrence.

Second installment of today's episode.

So here, Thomas would have said that basically any separately incorporated entity that identifies as a Catholic religious organization is entitled to tax exemptions since they really are arms of the diocese, but have to be incorporated separately because of church practice and doctrine.

So this just potentially would have given any organization that was that identified as a Catholic religious organization, not just this.

Catholic charities is definitely a Catholic organization engaged in charitable work.

He is talking about a much more expansive definition that would have entitled a much broader swath of organizations to this particular tax exemption.

So

would have been much broader.

I want to understand this.

Is it like Catholic cable industries?

Like that's a religious organization?

Absolutely.

If they say that anytime you use Catholic,

seems like it.

Yeah.

Interesting.

Much broader than the narrow, so to my authored opinion in this case.

So

it is tempting, and I think we fall prey to this all the time, to want the Democratic appointees to take a very adversarial posture vis-à-vis these guys in the majority day in and day out.

So dissent or maybe concur, but take the opportunity to point out the ways in which they are refashioning doctrine, society, you know, the world.

But we can obviously do that.

as podcast hosts, but their roles are obviously different.

And sometimes their roles might allow them to stave off more sweeping change by holding their fire in particular cases.

And that is definitely one possibility for understanding these cases last week.

Hear me out.

Do you think that's what they thought they were doing in Town of Greece or Trinity Lutheran back in the day?

Yeah.

Yeah.

And look where that led.

So Trinity Lutheran and Town of Greece were these free exercise cases that have paved the way for Carson versus Macon, will likely paved the way for Mahmoud versus Taylor, et cetera, et cetera.

And I think they genuinely thought they were trying to put up some bulwarks to keep keep the majority from riding roughshod over the first amendment and i think maybe it sounds like a good idea in the moment i just think these folks are undeterred bulwarks be damned like this is literally like the dutch boy putting his finger in the dyke it's certainly not going to prevent them from doing something bigger later on but does i don't know delay that you know by some time i don't know i don't know that's a great point leah and we talk about this all the time in the context of abortion litigation, like, you know, just keeping clinics open for an extra two months, three months, as long as possible.

That's the name of the game right now.

But I also, again, just, we need to understand like how much ground has been seeded when we're literally just trying to delay, delay, delay.

Agreed.

And that's what we're doing here.

To my point.

I think we'd be remiss if we didn't point out all of the ways in which this decision, despite its efforts to hem in this out-of-control majority, may still pave the way for more significant changes in First Amendment doctrine.

So here's a question.

What other conditions will the Supreme Court say discriminate between different religions or different religious denominations?

What about a non-discrimination condition?

Would the Supreme Court say that that discriminates against certain denominations?

provides an opportunity to distinguish between different denominations?

What would this decision mean in the context of religious hospitals or organizations that are affiliated with a church?

And I don't think this is an abstract question because over the last couple of years, there have been a number of hospital consolidations under hospital corporations that are affiliated with the Catholic Church and the Baptist Church.

I'm thinking of Dignity Health, for example.

What rules can states apply to those kinds of organizations and

their work going forward?

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So, we are going to offer some quick summaries of the additional decisions or non-decisions we received.

There was another unanimous opinion in Smith Wesson Brands versus Estados Unidos, Mexico.

SCODA said that Mexico's suit against gun manufacturers could not move forward based on the allegations in the complaint.

The suit had maintained that the gun manufacturers' sales practices facilitated illegal firearms transactions and violence in Mexico.

In that decision, the Supreme Court invoked the Protection of Lawful Commerce and Arms Act, a law shielding gun manufacturers from suit, which Friend of the Pod, Ellie Mistal, wrote about as one of the bad laws in his fantastic book, Bad Law.

So that statute plaque generally shields gun manufacturers from tort liability based on actions of other parties, in particular the people who buy their guns.

And basically, the Supreme Court said that aiding and abetting liability requires affirmative malfeasance rather than non-feasance, so action rather than inaction.

And most of the allegations in that case were about the gun manufacturers' failure to address the problem.

The court also added that the complaint didn't identify particular criminal transactions or acts by gun manufacturers or specific bad apple dealers with whom they engaged.

But the court actually did not hold that any independent acts by a third party would sever proximate cause, and that's what the gun manufacturers were asking for.

And it would have been a much bigger win for them.

So by not ruling on this kind of third party and proximate cause question, but instead just on this aiding and abetting liability question, the court arguably leaves the door open to plaintiffs who can make more specific allegations than Mexico had made here.

So

this is another like unanimous opinion written by Democratic appointee, you know, that like staves off that potentially bigger change.

Aaron Trevor Bowie, yeah, and it says future suits, potentially even another one by this plaintiff, the Mexican government, that are more able to specifically identify wrongdoers breaking specific laws.

Those are not precluded by this opinion.

And yeah, I think that's actually really significant.

Yeah.

All right.

We also got a decision in C.C.

Divas Mauritius versus Antrax.

And there the court held that courts have personal jurisdiction over a defendant under the Foreign Sovereign Immunities Act when an immunity exception laid out in the FSIA applies and services proper.

The FSIA does not require proof of minimum contacts over and above the contacts already required by the Act's enumerated exceptions to foreign sovereign immunity.

And last opinion we got before the non-opinion was Blombank versus Honigman, in which the court held that relief under Rule 60B6, which allows federal courts to vacate final judgments, requires extraordinary circumstances.

Even where a plaintiff seeks vacateur to amend the complaint, you know, basically to refile the case with additional allegations, still need to make that extraordinary circumstances showing.

Okay, so then there was a non-opinion.

So the court issued a dig dig in Lab Corp versus Davis.

By dig, we mean the court dismissed the case on the ground that certerare had been improvidently granted.

This means that the lower court decision remains in place and there is no opinion from the Supreme Court.

The case was about whether courts can award class relief when some members of the defined class lack Article III standing.

Or at least that's what the court thought the case was about when it granted certain

problem is that it's unclear whether there are any class members who lacked Article III standing here.

And we noted that Deepak Gupta, who argued this case on behalf of the plaintiffs, did a really great job at oral argument, pointing out the various deficiencies in the case and making it clear to the justices that this was perhaps an imperfect vehicle for the court to weigh in on the standing question.

For example, here, no lower court had said that there were class members who lacked standing, and the company's arguments rationalizing that finding were kind of weird.

The company, Lab Corp, asserted that some blind people who couldn't use their automated check-in system that didn't have an option for Braille or other disability accommodations might not actually want to use the system and therefore had never been injured because they couldn't, in fact, use the system.

So just a lot of stuff that made this perhaps not a really good case to flesh out these questions.

To that point, I will just note that this is the third dig that the court has issued in this term.

And then last term, they also dismissed Moyle as improvidently granted.

And we've also had one percurium opinion that was an equally divided affirmance.

Really interesting.

Seems a lot like quiet quitting to me.

I will say separately on the question of the digs, like maybe you guys just need to slow the fuck down and stop taking so many cases just because you really want to get to the issues.

Because that's kind of what the digs say to me.

Yeah.

Well, several of the cases that they dig this term were cases that sought to limit class actions.

And it's clear the court is just foaming at the mouth to do that and doesn't pause to actually consider that actually some class litigation is perfectly fine and doesn't raise these conspiracy theories that you think it does.

Wait, what is the conspiracy theory?

It's the conspiracy that lots of people are getting together to get justice for themselves.

Is that the conspiracy?

Some without argumenting and that they're just artificially inflating the class to balloon these awards, and they're forcing defendants to settle, and blah, blah, blah, blah, blah.

It's almost like when a group of doctors incorporate themselves in Amarillo, Texas on the fly so they can bring claims for the tort of outrage for the use of mephopristone.

No, it's not like that.

That's cool.

That's not like that.

That's cool.

This is bad.

But it's justice.

Right.

Melissa, since you brought up quiet quitting, I do want to talk about the pace of Supreme Court opinions here.

In my mind, they are going quite slowly in terms of releasing opinions.

They dropped a boatload this week.

Well, I know, but let's think about how many they have left.

So there are 26 argued cases with opinions yet to be issued, and three weeks and a day to finish them.

If they plan to finish by June,

that's like seven decisions a week

a week.

I mean, not counting shadow docket orders.

And I at least I'm concerned they might go into the lines.

It can be a sentence.

They can be a sentence.

And unless they were doing justice and you want to dissent from that.

Like, you don't do anything with shadow docket.

I just,

you know, the not being able to plan when they're going to be able to finish, it's just, I don't know.

Well, that's on us.

That's our, that's our beef.

Like, that's like, no.

I'm going to give them some credit.

Six this week.

I was surprised.

I was like, oh, wow.

Well, they too are getting nervous about their summer vacations.

And so maybe they will.

But I think

Fantastico.

I think at least, yeah, we don't know where they're going.

That is a reference, too, for newer listeners.

Neil Gorsuch debating which fabulous Italian destination he should select for some boondoggle.

Oh, what was he doing?

Teaching?

Yes.

I don't think he was selecting between locations.

I think he was like, they were putting him up at some nice place.

No, he was choosing between Venice and Bologna, I think.

Oh, was that what it was?

Was that the exchange?

But then you're right.

The Fantastic Go might have been a reference to the lodging, but it was in the context of where would you like to go, sir?

Yeah.

um anyway tbd where they're going to spend the summer but yeah i would like them to get to rip this band-aid off a little faster agree girls you guys you want to get to the end when the end might really be the end like the end of the rule of law that's all fair that's all fair but i i we were just i do wish they spaced it out a little bit more because i am concerned that some of these big cases are just gonna get lost in the what you're concerned about is that at our live show we'll have to do like nine of these opinions and we won't won't have time for any games.

We'll do a game.

It's just the game might not make it into the episode.

That's true.

Okay, so maybe just taking a step back on the decisions and big picture, you know, friend of the pod, Ali Mistal, called the last week walk the plank week for the Democratic appointees,

which evocative,

kind of along the lines of what we were talking about.

And I think another thing that the decisions underscored to me is

how much has already been lost in various areas of law, such that the Democratic appointees are no longer putting up a fight, like in the Ames case about whether non-discrimination law tracks an anti-subordination view where you care about whether the law creates some sort of hierarchy versus an anti-classification or colorblind view where you just care, are they considering race or sexual orientation, even if as part of an effort to diversify an institution or rectify past wrongs?

And that ship sailed in important ways.

And so it was also a reflection of that for me.

Yeah.

And just as we cautioned against firing up those SCOTAS so unanimous and moderate takes, the court issued two emergency orders on the shadow docket that seemingly divided the justices along six to three ideological lines, as the Republican justices on the court once again went to bat and did a solid for the Trump administration.

First, the Republican justices are apparently on team big balls.

So the court allowed Doge to get access to data held in by the Social Security Administration.

They blocked a lower court ruling that had limited Doge's access to that sensitive information.

The three Democratic appointees dissented.

Justice Jackson's dissent was joined by Justice Sotomayor, wrote, quote, today the court grants emergency relief that allows the Social Security Administration to hand Doge staffers the highly sensitive data of millions of Americans.

The government wants to give Doge unfettered access to this personal, non-anonymized information right now, before the courts have time to assess whether Doge's access is lawful, end quote.

The Republican justices also shielded Doge from some oversight.

They blocked a lower court ruling that had allowed crew citizens for responsibility and ethics in Washington from being able to obtain records related to Doge.

Once again, the three Democratic appointees dissented.

So now I guess I'd encourage all of you, when you think big balls, think SCOTUS.

And when you think SCODUS, think big balls.

In any case, we're definitely going to need to have a few additional drinks of the summer, the big ballers, at this point in bad decision season.

All right.

Let's move on to some court culture.

And this week's court culture segment is going to be a bunch of Article 2/slash Article 3 crossovers.

So the Trump administration announced that it it is rescinding the Biden administration's guidance that hospitals in states with abortion bans cannot turn away pregnant patients experiencing medical emergencies.

So the Trump administration is saying abortion ban states can force hospitals to turn away pregnant patients experiencing medical emergencies that jeopardize their health and potentially their lives.

But as Joni Ernst would remind us, we're all going to die anyways.

So why not let it be because a hospital refuses a woman life or health-saving care?

It is illuminating to know that their all lives matter mantra apparently did not include pregnant women.

Not going to lie, I'm actually surprised they didn't do this on January 21st.

I mean, I wonder if abortion is such a third rail for them right now that this had to get buried in the travel ban and the stuff with Harvard and everything else because they think we won't see it or no one will call it out.

Or there's no enterprising podcast of raging feminist podcasters that would have noticed it and just said it to their listeners every week.

But thankfully, we're here.

Also, should note that the rescission of the MTALA guidance is also very fetal personhood forward.

The Trump administration promises to enforce the law to prevent serious harm to, quote, the health of a pregnant woman or her unborn child, mostly her unborn child.

And just going to say again, SCODIS made all of this possible for the administration to do this because it last term decided to dig the case about whether federal law, EMTALA, the Emergency Medical Treatment and Active Labor Act, preempted state abortion bans, at least as applied to women requiring stabilization in the context of medical emergencies.

So

thanks, John, et al.

Yeah, I mean, one thing that I did want to flag, and maybe you guys are sort of reading this differently, but this is guidance that is being rescinded.

the trump administration despite its insistence across the board that it can cannot right like we just can't emphasize this enough it cannot change a statute passed by congress the statute requires hospitals to provide stabilizing care to any person who goes to the emergency room and no guidance can change that so i guess i am saying this because i am worried that

Sounding the alarm is really important, but I don't want people not to go to emergency rooms if they're in distress because they're like, oh, the Trump administration says I can't.

the hospital can't help me.

There, I think, is going to be an understandable fear on the part of doctors and ERs in abortion-banned states about what they can do.

But I at least still read the statute to require stabilizing care if they are in crisis.

And I don't think that anything the Trump administration has done changes that.

So I don't think anyone experiencing a medical emergency is not going to go to the emergency room because pain.

And you're just going to go.

I do think, though, the rescission of the guidance creates more of of a legal morass, a lot of legal uncertainty on the part of providers.

And again, I don't know, like, you're right.

The guidance is distinct from the law itself.

And I'm Tala is still very much a thing.

But without a Congress stepping in saying, like, we did that,

who's to say?

And so I hear you, and I don't want to.

be hyperbolic about it, but I do think this is really, really bad.

And there are a lot of doctors based on this guidance who are just going to be really skittish about this.

And I think, more importantly, there are a lot of general counsels in hospitals who are going to be super skittish.

Well,

also consider how MTALA is enforced.

You know, it is in part a spending clause statute.

And if the federal government, which has the power of the purse, is now saying we're not going to withdraw funds from hospitals that refuse stabilizing care, right?

That general counsel's office is going to say, well, our doctors are facing criminal liability.

We don't face financial risk if we refuse care.

And so I think that that also

and like genuinely scary development.

I just, I think that there's, for general counsels that are not inclined to go down that path, I absolutely think the statute continues to

be in force and says what it says, which is that any patient in any hospital that receives federal funds is entitled to stabilizing care, and stabilizing care is, I think, a capacious term.

So moving along to more Article 2, Article 3 crossovers, judicial nominations.

So one, you know, tiny blessing in this hellish four-plus months we've had is that Trump hasn't been nominating judges at a particularly quick clip, certainly not at the pace he did during the first administration.

But last week, the Senate did hold its first round of hearings, one for a nominee to the Sixth Circuit, and then one for a few district court nominees.

Let me just say one word about the Sixth Circuit nominee.

The nominee for the Sixth Circuit has been nominated for that position because the Democrats could not get the votes to confirm Biden's nominee to that position, Carla Campbell.

So instead, we are facing the possibility, indeed I think the likelihood, of a lifetime appointment for one Whitney Hermendorfer, an Alito and Barrett clerk in her 30s.

Yeah, I think Joe Manchin did that.

I'm pretty sure that's what happened.

Anyway, we now also have some district court nominees.

And at their hearing last week, guess how many Democratic senators showed up?

Hmm.

All of them?

All of them.

That would be a good guess.

That should be the answer.

The answer is two.

So Durbin.

Come the fuck up.

And briefly, Padilla, what?

Briefly.

So it's really just one and a half.

I mean, I just, I'm not sure.

I know he came at the end.

I just don't know if he had a chance to actually ask any questions of the nominees, but he was physically present.

So like what happened to Hirono and Booker and White House?

Paging all of them.

I have no idea.

I was actually stunned to learn this, but they just didn't show.

And I guess it was a busy week on the Hill.

Like, I'm sorry.

That's no excuse.

We all have three jobs.

We have two hearings.

Come on.

You know, to give you a sense of the kinds of candidates these Democratic senators didn't show up to interact with, some enterprising journalists have provided some important details about these potentially life-tenured individuals.

We're just going to highlight one, Josh Devine, who Trump nominated to a district judgeship in Missouri.

Devine is the current Solicitor General of Missouri and previously clerk for Thomas and is a longtime member of the Federalist Society.

Jen Bendery at the Huffington Post reported on some of Devine's writings while a college student.

In those writings, he noted that he wanted to make literacy tests great again.

So he argued in favor of reviving literacy tests as preconditions for voting.

Hmm.

While such tests, he acknowledged, had been used as a form of discrimination during the Jim Crow era, he maintained that they weren't inherently, quote, a bad thing.

It's like Overton Windows moving so fast.

Yeah.

It is stunning.

Yeah.

Go on.

What else do we learn about it?

There's more.

Jay Willis, our friend at Balls and Strikes, looked at some more of Josh Devine's columns.

In one column, he explained his opposition to homosexuality, which he likened to bestiality and continued to say, quote, any form of sex that goes against the biological design of procreation, end quote.

Hmm.

I wonder where he's going to be on Skirmetti.

Yeah.

Something else the Democratic senators did not show up to ask this guy about was his views about fetal personhood, on which he wrote, quote, I am a zealot.

And he believes that, quote, pre-born humans have had their inalienable right to life stripped from them by abortion mills, end quote.

And of course, he compared Roe vs.

Wade to Dred Scott and Plessy, as all the FedSOC bros do.

He claimed that Planned Parenthood, quote, aids sex traffickers, end quote.

And he maintained Christians cannot, quote, just leave their religion at home, end quote, because they are, quote, obliged ethically to impose their beliefs on others, end quote.

I'm just going to say this is one where we could have used Diane Feinstein saying, the dogma is strong in you.

I'm going to just say strongly.

Too soon.

Too soon.

Too soon, my friend.

But Corey Booker could have had a good round with this guy, and you know what?

Wasn't there.

And Devine also maintained that criticism of the former Denver Broncos quarterback, Tim Thibault, was the product of, quote, bias and possible hatred against Christianity, end quote.

Or just a hatred of the Denver Broncos.

Nope, that can't be it.

So, you know, in light of this nomination and others, I just wanted to come back to something we briefly alluded to at the live show, which is the Trump-Leo supposed fight.

And I just think that has been vastly overstated and overplayed, because even as Donald Trump might not be outsourcing these picks to the Federalist Society, it's clear he's still going to be drawing from their ranks since they are the pool of available nominees who share the beliefs of this administration.

And yes, he might be looking for the most hackish among them, but that's not going to mean going with non-Federalist society types and doesn't change like what the Federalist Society has done for Trump or the judicial selection machine.

Anyways.

But I do think we may see sort of two different tracks, both like the FedSOC judges and the MAGA judges.

And there may be some space between them.

I don't think there are that many.

The space would be a library.

But like, I don't think there are that many.

I mean, you have Bove, obviously, nominated to the third circuit, but beyond that, I think it is going to be a small pool of the kind of MA judges that Trump is going to want.

And so he is still going to be pulling from FedSOC types.

And I mean,

I will say you guys may disagree with this, but there are definitely some FedSOC-identified people who are rule of law conservatives who ruled against Trump in the aftermath of the 2020 election.

And so I think that there will be a strong impulse to weed out those rule of law types.

And so

I truly don't know what the kind of future of the FedSOC-Trump relationship will be.

And I think all we can hope for is that it grinds at least to a slow, if not to a halt, the kind of wheels of the judicial nomination process if there just is not that.

Because that's the only way they did it last time was through the FedSOC.

And without FedSOC, I think it's going to be be hard for them to keep up much kind of volume.

Yeah.

So that's at least another silver lining.

Yeah.

We should also note that the court declined to review a couple of really important Second Amendment cases.

This was after they considered these two challenges in 15 consecutive conferences.

These were challenges to a Maryland law banning semi-automatic rifles and a Rhode Island law that restricted high-capacity magazines.

Now, obviously, this really bothered some of the court's amosexuals who took it personally.

Justices Alito and Gorsuch indicated that they would have granted the petition, and Justice Kavanaugh issued a statement.

He called it a statement respecting the denial of cert that indicated that because, quote, millions of Americans own AR-15s and a significant majority of the states allow possession of those rifles, petitioners have a strong argument that AR-15s are in common use and are therefore protected under the Second Amendment.

Try again, NRA, you'll get Brett Kavanaugh's vote when this comes up again.

Justice Thomas obviously took all of this very personally, wrote a lengthy dissent, very much of a piece with Justice Kavanaugh's statement, where he noted that the AR-15 is the most popular rifle in America and the question of the rights of lawful AR-15 owners are of critical importance and should be determined conclusively.

He then blasted the lower courts for failing to read his mind and apply the confusing and stupid Bruin test properly.

And just to say a word about the challenged Maryland law that banned AR-15s, it was enacted in response to the 2012 Sandy Hook Elementary School shooting in which an AR-15, this kind of gun, was used to kill 20 children and six adults.

And in upholding the Maryland ban, noted liberal squish Judge J.

Harvey Wilkinson of the Fourth Circuit referenced the court's 2008 decision in D.C.

v.

Heller in noting, quote, our nation has a strong tradition of regulating excessively dangerous weapons once it becomes clear that they are exacting an inordinate toll on the public safety and societal well-being.

Wilkinson, I should say, was sort of a skeptic about Heller from when it emerged from the pen of Justice Scalia, but always took the position that it left ample room for some kind of regulation and obviously believed that this fell within what Heller clearly allowed.

One additional note of court culture, which is we are recording on Friday afternoon as we try to do to avoid any late-breaking news.

But as we are recording, ABC News is reporting that Kilmar Obrego Garcia

is on his way back to the United States to be returned, where, and again, this is according to ABC, he might face charges, criminal charges, for allegedly transporting undocumented migrants.

And again, this is just happening as we are recording.

This is just

so

like unexpected, like wonderful, you know, obviously like criminal charges.

Maybe he's guilty, maybe he's not, but like, that's what criminal trials and due process is for.

And the fact that the administration seems to have relented to the variety of courts standing for media pressure on this, public pressure on this, I think should be taken as like one of the more significant and encouraging signs of the power that like people backed up by like courts and law can do.

I don't know.

That's a huge deal.

So, So cosign on all of that, just again, not to be the turd in the punch bowl here, there is a two-count criminal indictment, which was filed under seal in federal court in Tennessee last month, according to ABC News.

That two-count indictment alleges that Abrego Garcia participated in a years-long conspiracy to transport undocumented migrants from Texas to the interior of the country, according to the sources that were briefed on the indictment and that reported that out to ABC News.

So

there's a lot of stuff here.

So it's great that he is on his way back home.

This, I think, should also get our attention, this alleged conspiracy.

Yeah, I mean, I'm skeptical, but obviously, as Leah said, like, we do have a system of justice in which those charges can be presented and he can defend against them.

And I mean, that could be another sort of test of the actual, God, I'm going to say the sentence integrity of Pamela Joe Bondi's Justice Department.

You know, I'm not that optimistic about it, but it is an important thing to do.

Among those allegedly transported are members of the Salvadoran gang MS-13, according to the allegations in the US.

Well, so we'll see what evidence there is, but there is, regardless, a world of difference, right, between

being rendered with no process to seecott and facing federal criminal charges in court.

And I totally agree with you, Leah.

This is that's an enormous win for the rule of law, although obviously the legal jeopardy for Mr.

Drego Garcia is far from over.

Yeah.

Wow.

And indeed, some red flags have already emerged about the indictment and accusations.

The former chief of the criminal division of the United States Attorney's Office in Nashville resigned following the decision or perhaps the instruction to seek an indictment against Kilmar Obrego-Garcia.

That office is the office in Tennessee that indicted.

Kilmar Obrego-Garcia.

And as Melissa's colleague Ryan Goodman noted on Blue Sky, the indictment already seems to depart from the referral report from the Department of Homeland Security in potentially meaningful ways, which kind of undermines the government's case against Abrego Garcia.

So we will be watching this.

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All right, so we're going to transition now to not really court culture.

I think this is actually pod culture.

Like, I think it's podcast.

No, it's all of us.

Sorry, we're all in it.

Maybe this whole Kate Forward segment, I guess.

Kate and Senator Kennedy forward content.

So, okay, last week I testified before two subcommittees of the Senate Judiciary Committee on nationwide injunctions.

And like I wrote a long statement and spent some time preparing, but I honestly did not think to prepare for being interrogated about this podcast.

And Senators Kennedy and Blackburn are surprisingly super fans, did not know,

but they are listeners, and so are their staffs.

And they really wanted to talk strict scrutiny.

So let's roll that tape.

You referred to the conservative justices as, and I'm quoting you, her evil colleagues.

That is something you said on strict scrutiny

in your podcast.

and you in that same podcast you made a reference to Justice Alito do you recall that I don't recall that we certainly do reference Justice Alito so I believe that but I don't recall specifically what there was that he was an abject misogynist on April 22nd 2024 You said there are some members of the Supreme Court that are evil.

Which justices were you talking about?

I'll take your word, Senator.

I don't recall using that word, but.

All right, here's what you said.

You were talking about the majority opinion in Muldrow v.

City of St.

Louis.

You said, quote, Justice Kagan, I mean, will she be able to control the opinion's future distortion by her evil colleagues?

Probably not, end quote.

Who were you talking about?

Sir,

I'm very skeptical.

If it's a transcription, it was probably a transcription error.

I do not think I said it.

No, you said it.

Why don't you own up to it?

You call some of the members of the Supreme Court evil.

Now, which ones do you think are evil?

I would have to refresh my recollection.

I've been very critical of members of the Supreme Court.

You're a good statement, aren't you?

I'm trying to say that it doesn't sound like something that's embarrassed at that you're teaching our kids.

I don't refer to Supreme Court justices as evil

in the classroom, sir.

On April 22nd, 2024.

Okay, well.

Big as Dallas.

And you're an officer of the court and you're here advising us to be respectful to federal judges and you say they're evil members of the United States Supreme Court.

Gag me with a spoon.

All right, so Senator Blackburn wanted to know if I had called Justice Alito a, I think, raging misogynist, seemed to check out, so I tried to explain why I might have done that.

But when Senator Kennedy confronted me about whether I'd called the justices evil, evil, I thought that didn't sound like something I'd say.

So I told him I really didn't think.

I think that sounds like something my bitch co-host would say.

I was like,

if I'm being honest, I think I've been thinking

that

Melissa would fit in the category.

Your staffers cannot tell our voices apart, Senator.

I mean, I didn't say that, but I was thinking it.

Okay, so fast forward to actually checking the transcript and the tape and this like reel that they had put together.

Turns out I in fact did use the word evil and in the immortal words of Dirty Dancing, when I'm wrong, I say I'm wrong.

Let's roll the tape.

So good result.

Deftly constructed opinion by Justice Kagan.

I mean, will she be able to control its potential future distortion by her evil colleagues?

Probably not.

But

for a couple of,

but like, so we've just, were you that wrong, though?

It was such an offhanded comment.

I mean, like, you just made it sound like you were saying they were stirring cauldrons and having page four.

That's not real.

We've been doing this podcast for six years.

Like if our listeners played a game like at a live show with us where they threw out phrases and said, did you say this or not?

I would get less than 50% correct because unless it's like a recurring joke, you know?

Yeah.

Like I'm not going to remember it.

You don't remember all the conversations you have with friends, right?

That was also an incredibly mild.

I mean, it wasn't like you were saying like Brett Kavanaugh writes BuzzFeed listicles instead of opinions.

I wish I had been asked about that.

It's not like you just went on the Daily Show and called Brett Kavanaugh and Neil Gorsuch dumb and said you basically had to like write your book in language plain enough for them to understand, which like I said, right?

Yes, that was.

That was a great moment.

You know.

So basically, Leah and I are never testifying before Congress.

And I wanted to say maybe

that's the point.

That is a serious, I think, kind of conversation to have about them making it intolerable to testify.

Yes.

yes well let's let's go back like you aren't the only woman woman law professor who has gotten this kind of treatment from the republican members of congress when they have testified marianne franks of gw got absolutely excoriated by john kennedy as well and she held her own but She got a flood of like terrible comments from like absolutely misogynous MAGA folks who flooded her emails and social media.

Jen Daskell also had a hard time in front of the committee.

No, you have.

Yeah.

Query, do any of the men who testify before these committees get similar treatment?

I have thoughts about this because at the same hearing where Kate was testifying, one of the majority witnesses happens to be someone who has called for some Supreme Court justices to step down when they don't vote the way he wants, who claimed credit for the Supreme Court justices overruling Roe versus Wade because he blogged negatively about them when he thought they wouldn't do so.

And at the hearing, wouldn't slash couldn't answer where the money came from that endowed his chair.

And all of that was totally fine, but like you have the audacity to criticize the court that they built to overrun our constitutional democracy.

And so they want to shame you out of being able to appear at a Senate confirmation or like a Senate hearing.

And they kept talking about how you're a law professor.

Like FYI, we do not assign this podcast to our students, a side thing.

Right?

Yeah.

And I did say I don't, I definitely don't refer to them as evil in the classroom.

And that's absolutely true.

It is a different mode of discourse.

And I think a committee that has

a leading podcaster on it, Samuel Cruz, would understand the medium.

Didn't he come to my defense?

Your husband?

Didn't he like weirdly introduce you with your husband?

Like, what was that about?

It was apparently a huge breach of protocol.

Like, you have a bio you give to the committee, and that's what they're supposed to use to introduce you.

The chair is not supposed to introduce the minority witness anyway, and they're definitely not supposed to editorialize about how you're married to a left-wing cable news host, which Cruz actually did when introducing me.

And I like, I felt my body kind of like shoot back six inches in my seat.

Like, I was so taken aback.

Um, and anyway, I guess they were just holding out.

Just for the gentleman from Cancun, Kate Shaw is a graduate of Brown University and Northwestern University's Law School and a Supreme Court clerk and a professor at the University of Pennsylvania.

Chris Hayes is has won awards for her scholarship.

Yes, she's, but Chris Hayes was our roadie.

Let's get it right.

Not disparaging Chris Hayes, but it really was a little bit like you're only here because of your husband or something seemed to be what Cruz was trying to communicate.

And I don't think it was offered in like a complimentary spirit.

It was my pretty strong suspicion.

Anyway.

Justice for Snowflake and for Chris Hayes and for you.

On this, like they are trying to scare people out of facilitating any kind of oversight, whether that is before Congress or outside of it.

I mean, I feel like they felt like they had to come for you and the other talented women that have appeared before them because watching the live hearing live, also seeing the public's reaction to it, like you managed to keep your cool while spitting cold, hard facts about how their false narratives were indeed false.

And so I wanted to play this clip

so that everyone can hear it if you weren't tuning in.

What's the principle of when an injunction biding non-parties, which was never done in this country before before the 1960s, and let's see the chart, the Trump chart, which was done really only once Trump came into office for the first time.

You don't think this is a little bit anomalous?

You don't think that's a little bit of a trendy question?

A very plausible explanation, Senator, you have to consider is that he is engaged in much more lawless activity than other presidents, right?

You don't think

that it was never used before the 1960s, and suddenly Democrat judges decide we love the nationwide injunction.

And then when Biden comes to office, no, it now has to be.

It's Republican appointees as well, Senator.

And the 1960s is where some scholars begin, sort of locate the beginning of the United States.

And I don't know if I go before them?

Mila Sahone, who's another scholar of universal injunction, suggests 1913 is actually the first thing.

Others in the 20s.

The Republic endured for 150 years before it was a nationwide injunction.

Well, the federal government was doing a lot less until 100 years ago.

So

there's many things that have changed in the last 100 or the last 50 years.

So long as it is a Democrat president in office, then we should have no nationwide injunctions.

If it's a Republican president, then this is absolutely fine, warranted, and called for.

How can our system of law survive on those principles, Professor?

I think a system in which there are

political constraints on the president is a very dangerous system.

That's not what you thought when Joe Biden.

That is not what you thought when Joe Biden was president.

You said that is not what you said.

You said it was a travesty for the principles of democracy, notions of judicial impartiality, and the rule of law.

You also said when you were in the city of the United States,

you also said when Joe Biden was...

a little bit of a population, like that was just incredible, and you were doing that throughout the speaker.

The only person who exhibited manhood in this moment was you.

More balls, more balls than all of the Republican members of that committee compiled.

Is that what a particular confrontation looks like?

Me and Josh Hawley.

By the way, Republican senators, if I come before the committee, yeah, I said that, right?

Like, I said Kate has more balls than you.

Yes.

That sounds like it.

Ask me about it.

Right.

Ask me about it.

It's all different by the time.

Ask me what I said about on my podcast.

I mean,

yeah.

The point of this, I think, is to keep smart women from testifying, keep anyone who might be a dissenting voice from testifying, make it harder for

the minority in both chambers to conduct oversight or participate in oversight.

And

underscore, I think, for everyone that your real job, Kate, is really to be at home having babies and collecting your Trump baby bonus or whatever nonsense policy they want to put out there.

So, and just to abstract up for one second on that, I think that's right.

And I also think it's not just about testifying, I think it is disincentivizing speaking out.

Yes, I actually think it's part of that larger program to like ratchet up the costs of dissent.

This is like one tiny instantiation of that, but that is the larger project.

And

fuck that.

Listeners, if you want to send some fan mail describing exactly how pumped as fuck you were, like when you heard the clip we just played, you know, you know where to send it.

So like forget those guys.

We had some real fans in the audience in DC

on May 31st and we've got to issue some thank yous to that amazing audience.

850 people at the Capitol turnaround.

Amazing.

Just incredible.

We loved meeting the fans that stuck around for the like after special package deal.

There were Stephanie and Holden, Jamie, Rose, a pair in the pink no-law, just vibes shirt, someone in an OG strict scrutiny t-shirt, in an OG, no-law, just vibes sweatshirt.

Anna with the cool tattoos, the vet who was going to night law school,

Kyra Hill.

You know, like, if you took pictures with us, please email those pictures to me.

We would love to just like send a small thank you.

Um, but that, that event and the people we met were just really incredible.

Um, and they are, yeah.

Um, things we read and liked?

Let's do it.

Sure.

So on the recommendation of one of the people I met at the live show, I read Kristen Hennings, The Rage of Innocence.

Worth the recommendation.

Also enjoyed listening to some of the new music for Pride.

Betty Who has a new single.

Addison Rae as well.

But finally, the shit posting war between Trump and Musk that we've all been waiting for finally happened and the content was incredible.

Specifically, the Republicans not knowing what to do.

I just want to highlight this one tweet that, honest to God, had me gasping for air when I read it.

And that is from Jack Posobiak.

So he says, quote, some of you all can't handle two high-agency males going at it.

And it really shows this is direct communication, parenthesis, phallocentric versus indirect communication, parenthesis.

Kynocentric.

I understand you aren't used to it.

I just, I loved it.

I loved it.

I died, right?

Like, I basically want it tattooed.

Wait, which part of it?

The whole thing.

It's just phallocentric on the back.

Kynocentric, and it's reversible.

And you can decide what you want to do with it.

That's the emergency.

Someone call crooked.

Oh, my God.

That's a great idea.

Yeah.

Would wear.

Yeah.

Yeah.

Would wear.

Possibly tattooing my body.

Yeah.

Yeah.

All right.

I will shout out just a couple of brief things.

Your super fans that you met, Marsha Blackburn and John Kennedy?

No, the actual amazing people that I met.

So it was, it's summer, and I have not, I don't think, ever been like in Congress in the like high summer when everyone there is like the mean age is 21 or something.

It's all interns.

So the room, hearing room was full of like lovely, fresh-faced young people, like younger than law students, mostly college students.

And a bunch of female students came up to me afterwards and said hello and said they listened to the pod, but also were like, wow, you really kept your cool.

That was amazing and inspiring.

And thank you.

And I was like, I was pretty shook after those hours.

And it was just like, it was very life-giving to have those conversations.

So thank you to all the Capitol Hill interns who came up after the testimony.

Yeah, thanks to all the haters.

I really got an enormous volume of hate mail this week.

So I guess some of it was a little funny.

Some of it was like pretty disturbing.

But I did get to call out an awesome woman scholar during my exchange with Holly.

Got to mention Mila Sahone, who is a great scholar of the Universal Injunction.

All of them, the members of the committee, were acting as though Sam Bray, who's another scholar of universal injunctions, sort of was gospel on this subject.

And I was happy I got to crack the record by invoking Mila.

And finally, Leah mentioned this earlier, but her amazing appearance on The Daily Show with Michael Costa, who is one of the hosts kind of rotating, it was epic.

I loved watching it.

I'm sorry I couldn't be there in person.

Melissa got to be.

Melissa gave me my shoes that I wore.

Oh, oh, those were like the spiky flats.

Yeah.

They looked great.

Obviously, I'm not cool enough to own them.

But luckily, you have a friend who is.

Exactly.

Unfortunately, her friend is maybe a half size larger than she is in the foot.

So in the green room, we literally lined those shoes with cleana.

Yeah.

Are you serious?

Like, I'm wearing these motherfuckers on stage.

Well, I didn't show that.

The walk was perfect.

It was great.

I also wanted to shout out Leah's amazing star turn on The Daily Show with Michael Costa, who was amazing.

It was a big night for The Mitten.

Jordan Clepper was also there.

Misha Ganders, Leah, Jordan, Michael Costa really did you proud.

I will also say sleeper hit Troy Awada, who did an amazing bit on Ilomos and his movement training, which was so funny.

He also made a terrific cameo as the big, beautiful Bill

that basically everyone on the house floor had had their way with.

And that was hilariously funny.

Absolutely fantastic.

Also, big shout out to our intern, Jordan, who brought his mom, Mari, who was, and they both came wearing strict scrutiny gear, and that made it very visible on the TV when they panned to the audience.

It was absolutely fantastic.

Jordan also did the Lord's work, almost got kicked out of the Daily Show by taking some surreptitious photographs and also documenting because at one point, Michael Costa referred to Leah's book as Supreme Court Law Pop Culture Have Sex Book.

And I was like, write that down, dude.

And he pulled out his phone and started making a note.

And then the security guy was like, put that phone away.

And I was like, okay, we're doing it.

Like, you know, I don't want Jordan arrested for strict scrutiny.

So it was absolutely fantastic.

And we met some of Leah's friends.

Just like a really terrific night.

And Leah, you were absolutely fabulous.

The second thing that was awesome this week is I read this terrific op-ed about William Buckley and it was so illuminating to me.

Like I've read God and Man at Yale.

This is William Buckley's book in the 60s about moral relativism in the Ivy League and whatever.

And this author, Sam Tannehaus, essentially linked Buckley to the current conservative grievance that's happening all over Washington and really, really illuminating.

And Sam Tannehaus has a book coming out on William Buckley called Buckley: The Life and the Revolution that Changed America that I have now ordered and can't wait to read.

I too have been enjoying the bro on bro combat of DJT versus Elon Musk.

Absolutely fantastic.

The memes have been great, as one meme said, this is just like Drake versus Kendrick Lamar, except everyone hears Drake.

And that's.

I thought it was everyone hears Kendrick.

No.

No.

No.

No.

Well, everyone hears Drake in that way.

Oh, in that way.

So

I was just thinking he's better at the action.

I think you've got to go to Pop Culture Summer School again.

So that's okay.

We'll work on it later.

You've had a hard week.

I also saw John Proctor is the villain villain on Broadway with Sadie Sink, and it was absolutely amazing.

If you have a chance, go and see this.

It's so smart.

It's just absolutely fantastic.

I actually ran into one of Leah Lippmann's students, Rosella.

So great to see you and your boyfriend, James.

He was great.

I think his name was James.

I'm pretty sure it was James.

Fantastic play.

Highly recommend.

And then finally, I'm now reading the new Taylor Jenkins Read Atmosphere.

So I'm very excited about.

So excited.

Are you going to, don't you love her?

So I have this like series of books that I have lined up for travel because I know I like them.

And so that's what I'm working through first.

Yeah.

Yeah.

I just, I can't delay gratification like that.

So I'm going, like,

I'm just reading it.

All right.

Shall we

land the plane?

Let's do it.

Let's land this Qatari jet.

Okay.

All right.

All right.

Newark, we're coming in.

Do you have room for

bus?

I landed in Newark and it was fine.

You were way braver than me.

I'm not doing Newark.

This is.

So, because the court's actions on the Shadow Docket required a post-recording update, as always, I, Leah, I'm going to take advantage of this unfortunate fact, which required me to record some updates on my own and use it to say some additional things about the pressure, not-so-subtle threats, and attacks that were directed at Kate in particular and the three of us on the podcast more generally.

One is that Kate Shaw is a fucking hero for willingly going in to the Senate Judiciary Committee hearing, having seen how they've conducted themselves as part of an effort to fight back against the false and misleading narratives about how the lower courts are doing something untoward by merely enforcing federal law against the Trump administration.

That's probably not something I would do right now, but her commitment to public education, the rule of law, and our system of separated powers and the rule of law runs that strong.

There's a reason why they came for her, our beacon of hope, and subjected her to this abuse to try to dim her light.

And I just want her and Melissa to feel support and like they aren't out on their own and won't be left on their own if and when they are threatened.

Kate, I don't know if you will get this reference.

Melissa, I think you will, but imagine the moment in Miss Congeniality where one Gracie Lou Freebush slash Gracie Hart is asked in the finals of the scholarship competition about her feelings on the Miss United States pageant.

And remember what she says after her brief shining moment.

That's all.

Little housekeeping before we go.

For the next month, when you buy something from the Crooked Store, you'll get a promo code for a free 30-day trial of Friends of the Pod, Crooked's subscription community.

That means a full month of ad-free pods, exclusive subscriber-only shows, and access to our Discord server completely free.

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Support the mission, get the merch, head to crooked.com forward slash store now.

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.

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

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