Trump’s Parade of Clowns, Idiots, and Creeps

Speaker 2 At the University of Arizona, we believe that everyone is born with wonder.

Speaker 3 That thing that says, I will not accept this world that is.

Speaker 5 While it drives us to create what could be,

Speaker 6 that world can't wait to see what you'll do.

Speaker 7 Where will your wonder take you?

Speaker 8 And what will it make you?

Speaker 9 The University of Arizona.

Speaker 8 Wonder makes you.

Speaker 10 Start your journey at wonder.arizona.edu.

Speaker 10 Mr. Chief Justice, as pleased the court,

Speaker 11 it's an old joke, but when an argued man argues against two beautiful ladies like this, they're going to have the last word.

Speaker 12 She spoke not elegantly, but with unmistakable clarity.

Speaker 13 She said,

Speaker 12 I ask no favor for my sex.

Speaker 12 All I ask of our brethren is that they take their feet off our necks.

Speaker 14 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.

Speaker 13 I'm Leo Littman. And I'm Kate Shaw.

Speaker 13 And just to be clear, we're all still reeling from the results of the presidential election, and we are somehow still waiting for results in key congressional races.

Speaker 13 But we are a Supreme Court podcast. The Supreme Court has been at work, which means that we have two.
So here's what we have in store for you on today's episode.

Speaker 14 First up, a few dabs of court culture and breaking news.

Speaker 14 That will include covering the ongoing auditions for the role of America's next SCOTUS justice, as well as the fire hose of appointments news that we've been handed, as well as a few other things.

Speaker 14 And then we're going to recap the November sitting. But first,

Speaker 14 let's turn to the auditions.

Speaker 13 Leah?

Speaker 13 Well, with the Trump 2.0 administration on the horizon, the auditions have begun for those ambitious individuals seeking Supreme Court nominations.

Speaker 13 And specifically, within one week of the election, one Judge Jim Ho decided to just get out there and say, you know what? That whole birthright citizenship thing, it might be wrong.

Speaker 13 And since there was no pending case in which he could opine on the topic, he offered these views in an interview with the Vala conspiracy, specifically conducted by law professor Josh Blackman.

Speaker 13 And he proclaimed in that interview that maybe just for funsies, as my 12-year-old would say, there's no entitlement to birthright citizenship in, quote, case of war and invasion.

Speaker 13 That is, an invading, occupying army that gave birth to children. Those children might not have a claim to birthright citizenship.

Speaker 13 But then he proceeded to apply this rule to, quote, the children of invading aliens, end quote, who he likens, to be clear, to an invading occupying army.

Speaker 13 This claim is upside down, ridiculous, gross, and not remotely serious. It is theater, but this is the kind of law.

Speaker 13 That's air quotes law, that gets you a judicial appointment in the Trump administration, or at least you think would get you a judicial appointment in the Trump administration.

Speaker 13 At an earlier point in time, Judge Ho had actually defended the Supreme Court's decision on birthright citizenship, Wong Kim Ark. That was way back in 2011.

Speaker 13 Obviously, that had to change or at least be ridiculously manipulated so as to grease the wheels for the Trump administration to treat the children of unauthorized migrants as non-citizens.

Speaker 13 But he didn't stop there. He also found a case in which he could offer up some views.

Speaker 13 He released an opinion where he wrote separately to decry how, quote, our culture increasingly accepts, if not celebrates, racism against whites, end quote. He is working hard for that money.

Speaker 13 And that was one quote, but there were a number of similar quotes. He says to Rodney.

Speaker 13 It's all over.

Speaker 13 It's a lot, but we're not going to subject you to all of it. So shifting from Judge Ho, who got an early start in the competition for America's next Supreme Court justice.

Speaker 13 And maybe he does have an early lead, but not everyone.

Speaker 14 Early days, Kate.

Speaker 13 Anything could happen. Anything could happen.

Speaker 13 We don't know just how bad it could get, although we're beginning to get a sense.

Speaker 13 But specifically on the Supreme Court nominee front, not everyone is conceding that Ho has won the race just yet. So Judge Justin Walker on the D.C.

Speaker 13 Circuit decided to ask whether the government could say that courts couldn't reopen final January 6th cases. Let's Let's play that clip here.

Speaker 15 I wonder,

Speaker 15 you know, there's been,

Speaker 15 and I'm expressing no opinion of whether this is a good thing or a bad thing,

Speaker 15 but there's been talk in the news that there could be a reconsideration of the January 6th prosecutions if there's a new administration. Let's imagine that that is the case.

Speaker 15 Would it be appropriate for the U.S.

Speaker 15 Attorney's Office, under orders from the Attorney General, to file a Rule 48A motion in all closed January 6th cases that are post-appeal and tell the district court you have no discretion whether to dismiss these cases.

Speaker 13 To be clear, this was not a January 6th case. This was just a case in which someone had to get a word in Edgewise about the J Sixers and Justin Walker was there to do it.

Speaker 14 So those are the stakes of who will be America's next top Supreme Court justice. But we actually have some real justices who are on the bench and folks have some things to say about them.

Speaker 14 So, in the bucket of more of this bullshit, I bring to you this. As the Democrats do their election post-mortems, some folks are reprising an argument that we heard earlier this year.

Speaker 14 And that, of course, is the argument for Justice Sonia Sotomayor to resign her seat so that President Biden might replace her with a younger liberal, because Republicans always play fair, and RBG, and Amy Coney Barrett, and obviously, right, of course.

Speaker 14 Again, are we really doing this again some more?

Speaker 14 Apparently. I get the anxiety around all of this, but one, Justice Sotomayor is not the same as Justice Ginsburg.

Speaker 14 Justice Sotomayor is 70 and is a type 1 diabetic, which she has been since she was a child.

Speaker 14 But Justice Ginsburg was an 81-year-old three-time cancer survivor, like just not the same and not fair, I think, to treat them the same. Also, has anyone looked around at the Senate?

Speaker 14 In what world do you think that newly independent Joe Manchin and nominally Democrat Kristen Zenemo will vote for the chosen SS replacement, even if the Republicans would actually allow that nominee to have a hearing and a floor vote as they prepare for the regime change?

Speaker 13 Well, and just to pipe in here, like this ship has sailed. Yeah.
Right. Like we have less than two months, right, or about two months before the Trump administration takes over.

Speaker 13 There are all of the lower court nominees who have already been nominated. They need to be confirmed now.
And yes, Democrats control the Senate, but just do that, right?

Speaker 13 Like if Justice Sotomayor was going to retire, it would have already happened. Maybe it already should have happened.
But like, again, that's over. Focusing on that now is just not productive.

Speaker 13 No, there's no way she would get through and it would eat up all of the Senate floor time. Yes.
So that none of the lower court judges, which we should say, there has been movement this week.

Speaker 13 They actually have gotten a couple of judges confirmed, but they really do need to stay very, very focused on it to get through the backlog.

Speaker 14 So, those are very real practical concerns. But since I wasn't on the podcast last week and couldn't register my own grievances about the election, I'm going to take this opportunity to go deep.

Speaker 14 Let me tell you where I am.

Speaker 14 Yes, I hear all of you people singing this particular chorus, and I recognize that the court being hopelessly imbalanced for the foreseeable future is your Roman Empire.

Speaker 14 But if that was the case, then why didn't you really, really do the work of convincing folks to vote on the court and not the price of eggs? And I just want to point out,

Speaker 14 over 50% of white women voted for Donald Trump. Over 50% of white women literally could not give a fuck about the court when it was go time.
And so

Speaker 14 you're going to have to miss me with this new logic about how one Latina is going to give up her job to save us all.

Speaker 14 Because if this was so important, somebody needed to have stepped the fuck up like two weeks ago. And that is where I'm ending this rant.

Speaker 13 Thank you.

Speaker 13 You can continue the rant. We got to rant last week.
So if you've got more ranting to do, let it out. Again, yeah.
I feel like we're going to be working this out for a while.

Speaker 13 So this is usually a lot of people.

Speaker 14 I went for me to show that I left the country last week.

Speaker 13 Like, geez, that was a good idea.

Speaker 13 Yeah.

Speaker 13 It was.

Speaker 13 I want like, yeah.

Speaker 14 It was just a weekend away. It was pre-planned before we knew that the regime change was happening.
But FYI, I did not enjoy my time abroad because I was just really sad.

Speaker 13 Sorry. That's true.

Speaker 13 Okay.

Speaker 13 Even more, an addendum to the calls for Justice Sotomayor to retire is

Speaker 13 even stranger calls for President Biden to nominate, wait for it, Vice President Kamala Harris to Justice Sotomayor's seat.

Speaker 13 I don't even know where to begin with that, so I'm just going to state it and stipulate it as ridiculous. Aaron Trevor Brandon, it's a weird thing that Democrats do.

Speaker 13 Do you remember that there was a minute when folks were trying to get Obama to put Hillary Clinton on the Supreme Court?

Speaker 13 It's like, you know what? Here's a gift, right? A consolation prize for losing a significant election. You get a lifetime seat on the Supreme Court.
What? What?

Speaker 13 So, no, although I have to say, I do find kind of amusing the sort of related suggestion that Biden should resign to give Harris the chance to be the 47th president for a couple of months, purely for the petty-ass reason that doing so would force Trump World to ditch all of their 47 gear and start afresh with 48 because she would be the 47th president.

Speaker 13 Shouldn't do it for that reason. Not a good idea on the merits, but I do kind of like the pettiness of the suggestion.
And since we are in the mode of finding joy where we can,

Speaker 13 I thought I would share it.

Speaker 14 You know what? Joe Biden is a Scorpio, and they are a petty, petty people. So, like, I think this probably did get a lot of people.

Speaker 13 I'm going to see more evidence of that. No,

Speaker 14 he's a petty person, I think.

Speaker 13 I'm not mad at it either.

Speaker 14 I think this probably got a good airing. Was probably like, you know, there were good reasons not to, but I'm pretty sure this got a good airing.

Speaker 13 He was much too gracious and insufficiently petty, in my view, when Trump visited the White House for their fireside chat last week.

Speaker 14 That's true. I did want to see a little more petty.
But he's been petty elsewhere. Like

Speaker 14 with the White House press corps, like he was pretty petty with Peter Doocy a couple of times.

Speaker 13 That's true.

Speaker 14 I appreciate it.

Speaker 14 More of that. More of that lame duck energy, Joe Biden.

Speaker 2 At the University of Arizona, we believe that everyone is born with wonder.

Speaker 3 That thing that says, I will not accept this world that is.

Speaker 5 While it drives us to create what could be,

Speaker 6 that world can't wait to see what you'll do.

Speaker 7 Where will your wonder take you?

Speaker 8 And what will it make you?

Speaker 9 The University of Arizona.

Speaker 8 Wonder makes you.

Speaker 10 Start your journey at wonder.arisona.edu.

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Speaker 14 Leaving aside those

Speaker 14 halcyon dreams of Kamala Harris, a Supreme Court justice, Sotomayor in retirement, let's focus on the Trump nomination. So as we all begin to prepare for Trump the sequel, Bigger, Better, Wetter,

Speaker 14 there has been some trickling information information about who is actually going to staff this next administration.

Speaker 14 And we've also learned that President-elect Trump has developed a newfound interest in recess appointments. So let's start there.

Speaker 13 Should we explain what recess appointments are? Sure. So a couple of constitutional provisions are relevant here.

Speaker 13 Article 2, Section 2, provides that the President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions, which shall expire at the end of their next session.

Speaker 13 So you can make a recess appointment and it can be good up to like a little under two years. So, there is a possibility that is a thing that has happened.

Speaker 13 Actually, the Supreme Court until a few years ago had never weighed in on this sort of obscure provision of the Constitution,

Speaker 13 did hold in a very fractured opinion that the president does have the power to make appointments and that they don't just have to be in the big recess between congressional sessions, but actually can happen during recesses that arise during a congressional term.

Speaker 13 But the recesses have to, you know, be not super short. So, there's like a 10 days-ish kind of limit that's set forth in the Breyer opinion for the courts.
It's a case called Noel Canning.

Speaker 13 So that's kind of the background. Presidents can make recess appointments.

Speaker 13 That was a very divided opinion by a very different court. And so there are some questions about the current status of that opinion.

Speaker 13 But for sure, presidents have, under current Supreme Court precedent, some power to make recess appointments. So bypass the Senate and put people in directly for a limited term.

Speaker 13 Okay, so that's the recess.

Speaker 14 Can they fill their entire cabinet with recess appointments?

Speaker 13 Well, okay, let's get to other possible limits on these recess appointments before we go to the nuclear option. Well, this is another nuclear option, too.

Speaker 13 So, this is a separate provision, also in Article 2, but this is the next section, Section 3, that says the President, there's the part about he gives Congress information on the state of the Union, he recommends measures to them, and then, in language that has not really ever been tested, the Constitution provides: quote, he may, and that's the president, on extraordinary occasions, convene both houses or either of them, and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.

Speaker 13 Okay, so we are hearing, and this is actually a thing that Trump floated even during the first Trump administration, that he may make recess appointments of members of his cabinet, and that he actually may, if the Senate won't agree to go into recess voluntarily, seek to use this really never used constitutional power to force an adjournment and then treat that adjournment as a recess during which he can make recess appointments, maybe up to and including his entire cabinet.

Speaker 13 And we will detail who is in that potential cabinet in a minute. But that is the background and it's all being floated.
And I find it an unbelievably terrifying possibility.

Speaker 13 Stairs in the Reichstag fire, right?

Speaker 13 Well,

Speaker 13 different ways to undermine the legislative body seems to be a thing that aspiring autocrats. One is by suspending them entirely.

Speaker 13 But I guess I want to be clear that

Speaker 13 this would require the consent or assent of the Republican House or Republican Senate, because this never-before-tested adjournment power only kicks in in case of disagreement between them.

Speaker 13 So that means one of the two bodies, either the House or the Senate, would have to vote to adjourn in order to allow the president to make these recess appointments, or, right, both would do it and allow the president to make these recess appointments.

Speaker 13 But the point is, it would require the Republican majorities and Republican Party's agreement in this fascistic scheme. Seems likely.

Speaker 13 Yeah, no, he's obviously asking them to bend the knee and they've always done it before, right? So like, it's very possible they will do so again.

Speaker 13 And a part of me does think that this request for recess appointments, as well as some of the possible nominations that he's already floated that we'll talk about in a bit, they are some weird kind of loyalty test to see how far his party will go, right?

Speaker 13 Like what can he get them to agree to? And if he can get them to agree to this, I mean, what on earth are they not going to agree with?

Speaker 13 And it just seems like this prospect of recess appointments coupled with all of the nominees is just flooding the zone with shit.

Speaker 13 It is impossible to digest how insane any one of these things are when all of them are happening at the same time. Like

Speaker 13 the day when we first got the trickle of official announcements of nominations, I feel like halfway through I was already feeling exhausted. And it's just so much.

Speaker 13 And again, this is how they do it and get away with it is just overwhelming everyone else with all of this BS.

Speaker 13 And the aggressiveness is so striking because

Speaker 13 these would be hearings that would happen after the new Congress is sworn on January 3rd. So he's going to be controlling these.

Speaker 13 And not even by small margins. He's going to have a significant Senate majority.
And what I don't know...

Speaker 13 but I strongly suspect that in at least the modern era, recess appointments used to be something that presidents would use because, you know, back in ye oldie days when transportation took a while and senators were far-flung, if you needed to get somebody installed on an expedited basis to do an important job, you could get them in without waiting for the Senate to return and confirm the person.

Speaker 13 That is the purpose. Everybody agrees, originally.
So maybe there were some cross-partisan recess appointments back in the day. But in modern days, it has really just been used

Speaker 13 maybe if there's an emergency, but also if there's some difficulty getting the party that controls the Senate to confirm your nominee, if you're the president, because it's not your party.

Speaker 13 And the idea that he would have this much trouble, that he would anticipate anticipate having this much trouble getting confirmation votes on his cabinet from his party in the Senate, just, I think, both speaks to how deranged these nominations are, but also to Leah's point that this is just maybe a power play, that this is designed to induce a radical set of concessions in the first, it's not even the first hours.

Speaker 13 We're in like negative 11 weeks before of the Trump term. And already requiring them to genuflect in this kind of debased way by saying, like, we will recess and you can just put all your people in.

Speaker 13 It seems like pretty clear evidence that we are in absolute worst case scenario. Terrain already, again, minus 11 weeks in.

Speaker 14 Well, it's kind of like a game of chicken with John Thune specifically. So Thune is going to be the incoming Senate majority leader.
And

Speaker 14 I think he's a very conservative guy, but he's not necessarily a Trump loyalist.

Speaker 14 And I think this is sort of like, are you going to get in line, friend? And are you going to bring this entire caucus with you? And

Speaker 14 all of this stuff is crazy, but it's, this is a gauge. How much am I going to be able to get away with?

Speaker 13 Yeah. And just going back to the Supreme Court's interpretations of the recess appointment power in the Noel Canning decision that Kate mentioned a little bit ago, it was, as she noted, very divided.

Speaker 13 And in the Justice Scalia separate writing that was joined by Chief Justice Roberts, Thomas, and Alito, they said that the recess appointment power applied only to those vacancies that, quote, happen during the recess, i.e., vacancies that arise during the recess, not vacancies, right, that existed before or after the recess, which is kind of what appointing your entire cabinet during a entirely orchestrated recess would do.

Speaker 13 And again, I'm not saying that these justices are going to be consistent, but I do think this is just part of asking all of the Republican Party to get in line and genuflect and bend the knee as they have done to date with Trump.

Speaker 14 So it seems the Constitution is actually a suicide pact.

Speaker 13 Last week I definitely said to Leah, I think that we can still fight for the Constitution, which I still think in general terms is right. And I do not want to.

Speaker 14 Were you out here being Pollyanna again while I was gone?

Speaker 13 I mean, no,

Speaker 13 we were in a dark place. I was not, I don't think, being Pollyanna.
I just said I wasn't willing to say that

Speaker 13 we're

Speaker 13 willing to give up. On the Constitution, and at least on sort of its broad principles.
And I mean, I will say two things.

Speaker 13 One, I think it is pretty clear that this power to adjourn turns on the existence of extraordinary occasions, which I think applies to both convening and adjourning.

Speaker 13 And so I think that there's no facial way to suggest that this whatever scheme satisfies those constitutional conditions.

Speaker 13 And yet I'm not in any way going to predict, even if the court somehow got this case in front of it, that the court would either be consistent in terms of the positions they took in Null Canning, which Lee was just talking about, or in this separate question, that they would actually faithfully interpret both the language and the underlying purposes of this provision, which in no universe were ever designed to allow Trump to do something like this.

Speaker 13 Aaron Powell, but let's go on to the people that he plans to interpret the power. Restole in this grand scheme.

Speaker 13 And then it all starts to become clear, because even with this incredibly incredibly compliant Senate that he's about to have, some of these people might be a bridge too far.

Speaker 13 I think it's at least possible.

Speaker 13 All right, so let's tick through the folks, the names that we have gotten and a couple at the outset that actually wouldn't require any Senate involvement and so aren't really involved in the scheme that we were just describing.

Speaker 13 Trump has announced that he has selected one of his campaign managers, Susie Wiles, to serve as the White House chief of staff.

Speaker 13 She, if she does take the position, will be the first woman to serve in that role. It has also been reported that Stephen Miller will play a major role in the West Wing.

Speaker 13 I think he will be the White House Deputy Chief of Staff for Operations, which is the position Alyssa Master Monico held in the Obama White House, which somehow just makes me so sad that she's got to share that title if this guy actually does that.

Speaker 13 Sounds like he's going to.

Speaker 13 So, I mean, he is going to be the architect of the savage immigration policy the administration has already suggested it will pursue. I expect it to begin very, very quickly.

Speaker 13 You know, and it's not just it's not just Pee Wee German, right, who is going to be facilitating these deportations. I'm not a bad.

Speaker 13 All the year for the rest of the episode.

Speaker 14 Wow. I'm so proud of you.
That was great.

Speaker 13 Also,

Speaker 13 Donald Trump has indicated he will name Tom Homan as Border Czar.

Speaker 13 Homan is, of course, an author of some pieces of Project 2025, who, when he was asked about deportations during the previous Trump administration, said something to the effect of, quote, you ain't seen shit yet.

Speaker 13 I have to say, there's a new documentary called Separated Out, which is based on Jacob Soborov's book, and Homan is in it a couple of times, and he is one scary dude. Oh, God.

Speaker 13 So we have that to look forward to.

Speaker 14 Yeah, so those are the positions that do not require any kind of advice and consent from the Senate. Now on to the ones that do require the Senate to step up.

Speaker 14 So, former New York Congressman and one-time New York gubernatorial hopeful Lee Zeldin has been tapped to head the Environmental Protection Agency.

Speaker 14 Zeldin has been a member of the so-called climate conservatives in the House of Representatives.

Speaker 14 He also objects to the Paris Accords, and he has vowed to roll back climate protections that were instituted under the Biden administration.

Speaker 14 On the upside, it does seem likely that a Zeldon-run EPA will fare better with this Supreme Court.

Speaker 13 So, hashtag winning.

Speaker 14 Someone's winning.

Speaker 13 Yeah.

Speaker 14 Additionally,

Speaker 14 also from the New York delegation, Congresswoman Elise Stefanik will be nominated ambassador to the United Nations.

Speaker 14 This was a position that was formerly held by Nikki Haley in the first Trump administration.

Speaker 14 And I'm just, you know, I know two is not a very large sample size, but it does seem like a good place to put your women is in the United Nations or abroad, right?

Speaker 14 Like who cares if women are dying in parking lots? You can always be UN ambassador and that is progress.

Speaker 13 Ladies, you've come a long way, baby.

Speaker 13 You might also be able to head the Department of Homeland Security because we are hearing that South Dakota governor Christy Noam is being floated to head that department. Also pretty scary.

Speaker 14 Well, it's just going to the dogs, honestly.

Speaker 13 Right, exactly. Like scary for the dogs as well as everyone else.
Like when they're killing

Speaker 13 the Transpub was like literally screaming about people eating the dogs, right? Who knew he would appoint a puppy killer to his cabinet?

Speaker 13 It turns out there is so much projection that the campaign in the last few years in MAGA land has been engaged in, and the cabinet really just makes all of that very clear.

Speaker 13 Another announced nomination, former Arkansas Governor Mike Huckabee, will be the ambassador to Israel. Let the rapture begin.

Speaker 13 I don't even know know what to say about that.

Speaker 14 Florida Senator Marco Rubio, who once ruled Trump's influence on the country and the Republican Party and the United States standing in the world order, has recanted all of that and has been tapped for Secretary of State.

Speaker 14 So, yes,

Speaker 14 you can come back from anything.

Speaker 13 We've also got reports that Donald Trump will nominate Pete Hegseth for the Secretary of Defense.

Speaker 13 I don't want to understate how wild this is by merely describing him as an anti-vaxxer Fox News host, but that is accurate.

Speaker 13 He will be leading the most powerful bureaucracy in the American government. He also doesn't wash his hands after going to the bathroom, or so he once said on Fox.
Like, this is good.

Speaker 13 He doesn't germ. Pretty pro-germ administration, as we'll get to later.

Speaker 13 He also was like shilling for ammo last summer, like helping to market it. He has urged, he did urge the president to pardon people who were convicted of war crimes.

Speaker 13 He has called for a declaration of war against the woke military, by which he seems to mean people of color and women in the military. This is in his recently released book.

Speaker 13 And it's not just people outside of government who might think he's a little nutty. He was also ordered to stand down from President Biden's inauguration because of his extreme views.

Speaker 13 Like he kind of failed a background check. And this is, again, the Secretary of Defense.

Speaker 14 I'm still back on Fox Newshost, right? Because our former Roadie and MSNBC news host, Chris Hayes, would have been great as defense secretary in a Harris administration.

Speaker 14 I just want to put that out there.

Speaker 13 The idea that she, in, you know, the sort of world two in which she is busily announcing her cabinet appointments, that she would be, you know, just surfing the channels to decide whom to nominate to literal cabinet positions just

Speaker 13 really

Speaker 13 tells you everything you need to know about where we are right now. And it's not even like remotely the most alarming biographical detail that he's a Fox News host.
Not even close to that.

Speaker 14 No, exactly. The washing hands was also very

Speaker 13 scary. I don't know.
I think that's pretty innocuous compared to, I mean, he

Speaker 13 pressured and inoculated.

Speaker 13 He pressured Trump to literally pardon workers. War criminals.

Speaker 13 Okay. Pretty bad.
And speaking of anti-vaxxers, not even the most prominent anti-vaxxer of the bunch. Strange and close.

Speaker 13 After we sat down to record, Politico broke the news that Trump evidently plans to name RFK Jr. to be the Secretary of Health and Human Services, HHS.

Speaker 13 And that makes me think, you know, we are just not, we knew he was going to do something in the administration, like we knew that, but we thought he surely will just stick him somewhere in a czar position in the White House that is not going to involve any kind of public scrutiny or a real public-facing position.

Speaker 13 And the announcement that he wants to put him in the cabinet, I think, only increases the likelihood that he actually is going to pursue this bananas adjournment scheme because I can't imagine a Senate confirming RFK Jr.

Speaker 14 What is Roger Severino thinking right now?

Speaker 13 Oh, I mean, he didn't debase himself enough in order to get this post. Roger Severino is, he was the author of the chapter on HHS in Project 2025.

Speaker 13 And I think people were thinking maybe he would be nominated as secretary. No, of course, right, Donald Trump is going to cycle through all of these people ad nauseum, right?

Speaker 13 So he'll probably get a chance like within one scaramucci or two, like who knows?

Speaker 13 Or maybe floating RFK Jr. is a way of clearing the way for someone like Roger Severino, who maybe has less personal baggage, but their views are also quite extreme.

Speaker 13 I mean, it would be difficult to top top putting an anti-vaxxer in charge of the agency in charge of developing vaccines. I mean, this will literally, literally kill people.

Speaker 13 And it's like, oh, all you woke people care about, you know, kids and getting measles and mumps. And it's like, what?

Speaker 14 This is Ellie Mistall's whole theory behind all of this. Like literally flood the zone with.
absolute crap, make it as crazy and as extreme as possible.

Speaker 14 And then when you put in the smart but extreme people, everyone's like, like, okay, that's plausible. He went to Harvard Law School.

Speaker 13 Yeah.

Speaker 13 I mean, that could be, but shall we get to the piece de résistance

Speaker 13 of the nominations, which we have so far held off on even speaking about.

Speaker 14 As someone who was raised in the Sunshine State, I feel

Speaker 13 I'm supposed to be proud of this in some way.

Speaker 14 But

Speaker 13 y'all,

Speaker 14 what kind of world are we living in when literally Florida man can be nominated to be Attorney General of these United States? Like, yes, that is exactly right.

Speaker 14 Florida man, Matt Gates, has been nominated to be the Attorney General. And I'm just going to say it.
It raised some eyebrows.

Speaker 13 You know, I was talking about this with some students who were expressing, I don't know, imposter syndrome or nerves about law school.

Speaker 13 And I tried to put a positive spin on this by saying, look at the comeback story America has right now.

Speaker 13 A guy who was under investigation by DOJ for sex trafficking, or at least a target of an investigation, will now lead the department.

Speaker 13 Like, is this the most progressive administration on offender reentry in history?

Speaker 14 Rebilitation, second chances. I love it.

Speaker 13 Quite possibly.

Speaker 13 I mean, like, we are literally making a guy who is like, if a frat paddle was made a real boy with Botox injections that guy is gonna lead DOJ that's our attorney general I'll be here again for the entire episode

Speaker 13 you are on fire this

Speaker 13 wow

Speaker 13 you are at a 12 and I appreciate that because I'm still trying to get to 13 is my lucky number I love it

Speaker 13 wow Gates I think is the most reviled member of a Congress that includes Ted Cruz I do not just like he is to the House House, what Cruz is to the Senate.

Speaker 13 I think he is hated more by his colleagues, even than Cruz is by his colleagues.

Speaker 14 I think the Senate is what Republican Max Miller said. He basically said that on TV.

Speaker 13 Well, I think it's, I maybe I'm quoting him. I think I am just channeling what my general understanding is.
And I mean, the list of horrifying things about Matt.

Speaker 13 Gates is so long and yet there's no way to

Speaker 13 turn real boy, so I won't try. But I will note that Gates, among other things, he has not been a particularly productive legislator, but he did make time to introduce legislation to protect J Sixers.

Speaker 13 So, you know, there go those cases.

Speaker 13 Literally every one of these appointments feels like the hunger game canon for like a part of the federal government. Like, boom, there goes HHS.

Speaker 13 Like, boom, DOJ is about to be dead, et cetera, et cetera.

Speaker 14 Even Susan Collins was a little bit alarmed. So Senator Susan Collins of Maine weighed in on the Getz nomination and she had this to say, quote, I was shocked by the announcement.

Speaker 14 This shows why the advice and consent process is so important. And I'm sure that there will be a lot of questions raised at his hearing.

Speaker 14 Obviously, the president has the right to nominate whomever he wishes, but I'm certain that there will be a lot of questions, end quote. Who's going to tell her?

Speaker 13 Ask those questions, girl. I'm sure it'll turn out great.
I mean, like,

Speaker 13 this is what he was promising, right? Like none of you people should be surprised. This is just ridiculous.

Speaker 13 And I think the best case scenario we can all hope for is that an attorney general, Matt Gates, spends all of his time seeking justice for Peanut the Squirrel.

Speaker 14 Why do we constantly erase the raccoon? The raccoon was also euthanized.

Speaker 13 Like justice for the raccoon. Fred.
Okay.

Speaker 13 Peanut the squirrel and Fred the raccoon, right? Like if that is how he occupies his time, like maybe we will survive.

Speaker 13 I also would just like to utter a sentence. If you will humor me for a little, you can read into this sentence whatever you will.
There is a possibility that one, Matt Gates, is going to have

Speaker 13 a recess appointment. It might make him happy.
Our sex pest in chief has decided he doesn't need consent.

Speaker 14 You know what?

Speaker 13 Wow.

Speaker 14 You've really just ruined the playground for everyone.

Speaker 13 Sorry. Okay.
Sorry.

Speaker 14 All right.

Speaker 14 Maybe this might actually top Matt Gates or it's hard.

Speaker 14 Former Democrat Tulsi Gabbard has been

Speaker 14 nominated to be Director of National Intelligence.

Speaker 14 I'm just going to leave that out there. And in addition to that, we have a new agency-ish department.

Speaker 13 No, who knows?

Speaker 13 We are to say, as law professors, there is no agency that Donald Trump can just make

Speaker 13 either. No, to make a department of government efficiency.
Sorry, I cut you off, Melissa. What is the thing that Trump is pretending he's doing? And then we'll get to the real law part of it.

Speaker 14 But for now, a concept of a plan has been made into two real boys because Elon Musk and Vivek Ramaswamy have been tapped to lead the nascent Department of Government Efficiency, which interestingly is not in the government and is not a department and may not have any power, but also might.

Speaker 13 Unclear. But also its abbreviation is D-O-G-E.
Like Doge. Doge.
Right, exactly. So

Speaker 13 I'm sure its mascot is going to be the Doge too.

Speaker 13 This is going to be sick.

Speaker 13 Clutch up, ladies. Like, we've got a Doge now.

Speaker 14 Kate, do you know what we're talking about?

Speaker 13 I don't. I don't.
I thought Doge is kind of crypto.

Speaker 13 I thought it was about giving free advertising to Elon's,

Speaker 13 one of his crypto crypto. Just Google it.
Just Google it.

Speaker 13 But it's also, I think, about promoting Doge, which is actually a name, a kind of cryptocurrency. Very good.

Speaker 13 What is the Doge that you talked about?

Speaker 14 It could also be that, too.

Speaker 13 Well, it's just more like, you know, grift.

Speaker 13 All I can get in Doge is Dogecoin and the new fucking department Doge. Oh, it's just a Oshiba Emu Emu dog.

Speaker 13 It's cute.

Speaker 13 Is this the Doge you guys?

Speaker 13 It became kind of like an Elon Musk thing for a certain period of time. I don't even know how to describe its origin story.

Speaker 13 It's sometimes impossible to wind like a meme back. So I may have just missed it forever.

Speaker 13 Okay.

Speaker 14 Thanks for trying. I actually, I mean, I'm actually surprised, Kate, that you had the crypto at the ready.
I thought you were going to say obviously the leader of Venice, the Doge.

Speaker 14 And I'm glad you were in this century.

Speaker 13 Yeah, Dogecoin, apparently a kind of a kind of crypto.

Speaker 13 Don't sleep on Kate Shaw.

Speaker 13 Just on memes. You can sleep on me on those.

Speaker 13 But back to what we were saying at the outset, it's just, I really think it's important for people covering this to not call it a department, even though Trump is calling it a department.

Speaker 13 And obviously, you know, he wants us to say Doge.

Speaker 13 But it'll be a committee. It's going to make recommendations.
It's going to exist outside of government.

Speaker 13 Maybe there'll be some kind of White House entity that that the president has the authority to create. But a department is created by statute, by act of Congress.

Speaker 13 He cannot force a recess and make a department while they are adjourned. That's not how any of this works.

Speaker 13 Maybe he will try this gambit to make the appointments, but he is clearly trying to seize all the power.

Speaker 13 And I really think it's important that just even rhetorically, we are not all capitulating in that effort.

Speaker 13 And I actually think in a subtle way, his assertion that he is made a department is part of that project and it's important to resist it.

Speaker 14 It's basically a faculty committee, and we all know how those work.

Speaker 14 Right? This is a curriculum reform committee.

Speaker 13 Yeah. Exactly.

Speaker 14 Basically.

Speaker 13 Elon Mussa and Vivek Ramaswamy are now associate deans.

Speaker 13 I do love that.

Speaker 14 Ask deans.

Speaker 14 I'm glad we have each other.

Speaker 13 Okay. Yeah.

Speaker 13 So maybe in light of these, I think we need to recalibrate our expectations for Supreme Court nominations.

Speaker 13 Like, I think Judge Ho is really underperforming in the race to be as out there as you need to be for a nomination in the Trump 2.0 administration.

Speaker 13 I mean, I think justices Cannon and Kesmerek are looking way more plausible. Can't rule out a Justice Josh Blackman or maybe Jonathan Mitchell.

Speaker 13 You know, I think if the Department of Education is allowed to continue to exist, maybe Chris Chris Ruffo as Secretary of Education,

Speaker 13 Bill Ackman, I mean, again,

Speaker 13 can't rule these out.

Speaker 13 I guess, like, one note about a possibility on the Gates nomination in particular. We talked about different theories for why these nominations might be the way they are.

Speaker 13 But on Gates in particular, the House Ethics Committee was apparently going to vote on releasing a report described as highly damaging by Jake Sherman at Punch Bowl two days after Gates was nominated to be Attorney General and resigned from Congress, such that the committee no longer has jurisdiction over him.

Speaker 13 And I think it's a question about was this an excuse to resign? And he might not get confirmed, but clear the way for someone else. I mean, I don't know, but there's just a lot going on here.

Speaker 13 I hope the clear the way theory is right. I think that anything that keeps Matt Gates out of the Department of Justice would be a great development.
But I think that

Speaker 13 again, it might be like, hey, like, this is an added benefit. Let's shoot for the moon as as well.
Oh, right. Why not both?

Speaker 14 Right. Can I offer a hot take?

Speaker 13 Yes. Yeah.

Speaker 14 What if Matt Gates is actually the perfect person to be AG, just because it would just be very difficult for him to get anything done?

Speaker 14 Anyone who came after him, who was actually plausible, would probably be smart enough to do some real damage.

Speaker 13 I just think he is going to be an absolutely willing and subservient attack dog. I think he will go after critics.
I think he.

Speaker 14 all of them would, though.

Speaker 13 I mean, no, I just think he's right.

Speaker 13 But he's beyond shame and caring, and I think that there are people who are on the list who would do evil things, but actually might care somewhat about the views of the existing folks at DOJ.

Speaker 13 And I just don't think Gates would have shame.

Speaker 13 Kate. I do.

Speaker 14 No, Kate.

Speaker 13 Again, it might be that in the best case situation, we are hoping for a world where malevolence is tempered by incompetence, to borrow the words of Ben Wittis and Quinta Jurzik of Lawfare.

Speaker 13 I think that that was some of what they talked about during the Trump 1.0 administration. But again, that is literally scraping the barrel for any bookmark this.

Speaker 14 We might have to come back to maybe Matt Gates was a silver lining. Yeah.

Speaker 13 We will see. Okay.

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Speaker 14 Anyway, that's what's happening in the executive department, the real one, SOFR. Let's turn to the judiciary and do some court culture for real, for real.

Speaker 13 Okay. What's going on, Kate?

Speaker 13 Briefly, some news out of Louisiana, where a district court judge enjoined a state law that would have required public schools to display the Ten Commandments in classrooms.

Speaker 13 Louisiana was the first state in nearly 40 years to enact a mandate on religious displays in schools.

Speaker 13 The law would have taken effect in January of 2025 and was widely, and I think correctly, viewed as an effort to tee up a challenge to Engel versus Vital, which which is the 1962 Supreme Court decision that prohibited prayer in public schools on the ground that it violated the separation of church and state, which is a thing that used to exist.

Speaker 14 In that decision, Judge John D.

Speaker 14 Gravels, who is an Obama appointee, wrote that the law was, quote, coercive to students, and for all practical purposes, they cannot opt out of viewing the Ten Commandments when they are displayed in every classroom, every day of the year, every year of their education, end quote.

Speaker 14 Sounds like a problem for church and state, if that were a thing.

Speaker 13 Yeah, I mean, the decision was not unexpected given existing precedent, but it does invite a battle over, you know, the future of said precedents, a battle that will surely end at the Supreme Court.

Speaker 13 The next step for the case is the Fifth Circuit. So what could go wrong? Now time for some recaps.

Speaker 13 Sure. Right.

Speaker 13 Okay.

Speaker 14 Can I just like, time out, time out? I had such a hard time getting into these cases.

Speaker 14 Like, I know they matter to lots of people and but i mean like geez louise i think the justices kind of did too yeah i think that um

Speaker 13 look the cases are important but again when you're comparing them to having matt gates running DOJ and Robert F. Kennedy Jr.
running HHS

Speaker 13 one thing is going to draw a little bit more attention and concern than the other. And I don't think that is unreasonable.

Speaker 14 So while we were out of the country, country someone asked me what do you think the scariest part of project 2025 is and literally the only thing i could think of was that it's just the first 180 days yeah yep like that's the scariest part it's just literally half a year yeah there's more

Speaker 13 um okay so to the cases

Speaker 13 focus yeah two the cases the court heard last week one was velasquez versus garland um the case arises out of the fact that non-citizens who are present in the united states unlawfully and facing deportation can request what is called voluntary departure instead of a removal order under certain circumstances.

Speaker 13 If that is granted, an individual who follows the court's directive will not be subject to the usual repercussions of deportation.

Speaker 13 Instead, they might potentially be able to return to the United States more quickly with proper sponsorship, but they must leave the country voluntarily within the period directed.

Speaker 13 And if they do not, they can be subject to steep fines and be barred from returning to the United States for up to 10 years.

Speaker 14 So what happens when a non-citizen's voluntary departure period ends on a weekend or a public holiday?

Speaker 14 And instead of leaving the country, the non-citizen files a motion to reopen the process on the next business day?

Speaker 14 Well, the 10th Circuit has held that regardless of what day of the week a voluntary departure period expires, the law requires a non-citizen moving to reopen or reconsider removal proceedings to file within the calendar calendar day period set in the voluntary departure order.

Speaker 13 That holding, however, conflicted with a 2012 Ninth Circuit decision holding that when a non-citizen's deadline for voluntary departure falls on a weekend or a holiday, the non-citizen has until the next business day to file their post-decision motion to reopen or to reconsider.

Speaker 13 And this case, Velasquez v. Garland, gives the court the opportunity to resolve that circuit split.

Speaker 13 So the petitioner argued that the meaning of the statute has to be consistent with the meaning of other provisions of immigration law and with the practice of immigration authorities, which is that when a deadline falls on a public holiday or a weekend, the departure has to happen by the next business day.

Speaker 14 Sounds sensible. However, the Biden administration was actually taking a much more hardline approach.

Speaker 14 And at least a couple of the justices weren't crazy about some of the choices that the government made at Oral Argument.

Speaker 13 So let's roll a clip.

Speaker 16 Because MANA recognizes that reopening and reconsideration can be subject to review. It doesn't say everything.
So for instance, take an alien who's a soccer fan and says, I move for reconsideration.

Speaker 16 I want you to include in your opinion the statement, I'm as good of a soccer player as Lionel Messi.

Speaker 17 I don't think you should trivialize this case.

Speaker 18 No, this is actually.

Speaker 18 And how do either one of those things make sense? This is a man who's really trying to get the agency to focus on this timeliness determination that has just arisen

Speaker 18 in the denial of its motion to reopen. He did what I would think the agency would want him to do.

Speaker 16 Well, I will say that where this comes from is the text.

Speaker 16 That is, there's review only of a final order of removal. That's 1252 A1.
It then goes to Nasrallah, which interpreted final order of removal. Now, our argument in Nasrallah.

Speaker 18 That's completely non-responsive to the question that I just asked.

Speaker 13 I just have to say, Justice Kagan, if you think assistant to the Solicitor General Yang is unresponsive, just wait until you hear from Solicitor General Sidney Powell or Alina Haba.

Speaker 14 Release the kraken.

Speaker 14 It wasn't just Justice Kagan who appeared frustrated with the federal government. Justice Gorsuch, renowned textualist, also had some words.
So let's roll that.

Speaker 16 If it's so obvious, how come you didn't raise it below?

Speaker 16 That I can't

Speaker 16 speak to. Oh, neither can I.

Speaker 13 Again, I just have to imagine what the colloquies and cases are going to look like under a Matt Gates Department of Justice.

Speaker 13 I just had this thought. I remember when we had Attorney General Holder on the pod.
I think, did we talk about this?

Speaker 13 There used to be this practice of attorneys general doing like one argument, like, you know, just because it's a sort of ceremonial thing that's fun to do.

Speaker 13 And it hasn't been, you know, Holder didn't do it. Lynch didn't do it.
Garland didn't do it. Anyway, so

Speaker 13 Holder said he didn't do it because that's protest, right? Like the court Shelby County. Exactly.

Speaker 13 It was not the kind of institution he wanted to appear before, you know, and have that kind of respectful exchange.

Speaker 13 And there Rosenstein, I think, even though he was the DAG, and then acting, was the one person who did in the Trump administration.

Speaker 13 Anyway, can you fucking imagine Matt Gates doing a Supreme Court argument?

Speaker 13 All right.

Speaker 14 Well, I honestly would watch. Would watch.

Speaker 13 Would watch.

Speaker 13 I mean, and maybe he would do it because he, like Trump, is this kind of seeker of negative attention and would probably do it for that reason because people would, a lot of people would hate watch it and maybe he would enjoy that.

Speaker 14 I would actually love to see Elena Kagan

Speaker 14 body him.

Speaker 13 Yes.

Speaker 13 I'm slightly

Speaker 13 concerned. She would just spontaneously combust instead.
That's also possible.

Speaker 14 I cannot compute.

Speaker 13 Right, exactly.

Speaker 13 All right, back to Velasquez for just a minute.

Speaker 13 On the substance, a lot of the argument was spent when not pummeling the federal government discussing whether the the court or courts had jurisdiction to hear these cases at all, which hadn't actually been raised below and was only kind of glancingly raised in the briefing before the court.

Speaker 13 So there was some talk of maybe sending the case back down, which is becoming something of a theme this term, which honestly I'm fine with. Like do nothing, send it all back.

Speaker 13 I think that's probably the best we could hope for from these clowns much of the time. Perfect.
No thesis.

Speaker 13 All right. Next case is Delagati versus United States, which involved a mob-related murder.
But that actually isn't what the case was about.

Speaker 13 The question in the case was whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

Speaker 13 So put simply, has a defendant used physical force when she hasn't actually done anything?

Speaker 13 And as in Velasquez, this was definitely a theme of the week.

Speaker 13 The government took a pretty hard line approach, arguing that even in circumstances involving inaction, the defendant has used or attempted to use physical force.

Speaker 13 And this prompted some very interesting hypotheticals from the justices. And here is one exchange between Deputy Solicitor General Eric Fagan and Justice Jackson.

Speaker 17 Just piggybacking on what Justice Gorsuch is saying, I guess I'm just trying to understand the government's position on what it means to use physical force against the person of another in an omission case.

Speaker 17 So

Speaker 17 let's take this hypothetical. Say you have a lifeguard and she has a duty of care to rescue children in the pool.

Speaker 17 A kid who she hates,

Speaker 17 hates, gets into the pool entirely of their own volition.

Speaker 17 Is it your position that she uses physical force against this kid if she doesn't jump into the water when she sees him drowning?

Speaker 16 Yes.

Speaker 13 So Justice Jackson's question generated

Speaker 13 whatever this was.

Speaker 13 So we're just going to play that clip here.

Speaker 19 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 it's the gravity is dragging her down in the pool.

Speaker 19 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.

Speaker 19 I couldn't quite tell you what happens with asphyxiation, but the body's going to be attacking itself there, gasping for air, eventually die.

Speaker 13 You know, this description was like very relatable for me this past week. I was like, he's describing sensations that, yes,

Speaker 13 I felt.

Speaker 13 So

Speaker 13 I really felt I empathized with Fagin during this exchange because he was like trying to figure out how exactly to respond to the question and realized he actually, how do you explain drowning?

Speaker 13 Like, I don't really know. And anyway, he did not do it effectively, although he did speak to something.
deep in our souls at this

Speaker 13 moment in time.

Speaker 13 Exactly. Thank you for that.
Right.

Speaker 13 You know, as in Velasquez, Velasquez, the federal government had a hard time in this argument as well, although their opening statement was quite confident, as you will hear here.

Speaker 19 Mr. Fagan? Thank you, Mr.
Chief Justice, and may it please the court. It's hard to believe that we're actually here debating whether murder is a crime of violence.

Speaker 13 Bold move, Cotton.

Speaker 14 The last case the court heard in this sitting was Nvidia Corp versus E.O.Men Jorfonder A.B.

Speaker 14 And as we discussed in our preview, this case concerns two questions related to the Private Securities Litigation Reform Act, or PSLRA.

Speaker 14 First question is whether plaintiffs seeking to allege sienter, which is fraudulent intent, under the PSLRA based on allegations about internal company documents, must plead with particularity the contents of those documents.

Speaker 14 The second question is whether plaintiffs can plead falsity under the PSLRA by relying on an expert opinion rather than particularized allegations of fact.

Speaker 14 The case involves NVIDIA, which makes computer chips. It is currently the most valuable company in the world.

Speaker 14 However, its shareholders contend that in 2017 and 2018, the company's CEO, Jensen Huang, hid the fact that its record revenue growth was being driven by crypto mining rather than by sales for gaming.

Speaker 14 And the investors say that crypto market volatility made the company's company's finances more precarious when the market crashed in 2018.

Speaker 13 So, when it enacted the PSLRA in 1995, Congress gave companies certain protections from lawsuits by shareholders.

Speaker 13 Specifically, the law requires lawsuits to include key allegations, quote, with particularity, end quote, including details to show that company officials knew they were misleading investors.

Speaker 13 Here, the investors maintain that their complaint met this standard. Here is Deepak Gupta of Gupta Wessler, who argued on behalf of the investors.

Speaker 20 He reviewed sales data every week, every month, and in quarterly meetings that one witness described as proctology exams because they were so detailed.

Speaker 20 The nature of his responses, I think, is critical here.

Speaker 20 As I said earlier, when he was asked by analysts about the crypto demand, he didn't say, you know,

Speaker 20 we don't know or I don't know. He quantified the statements he was making and he didn't express uncertainty.
He gave very specific figures that, again, contradicted the data.

Speaker 13 So, Nvidia argues that the lawsuit's allegations are not pled with particularity, but rather are based heavily on an analysis by an economic consulting firm rather than the factual allegations required under the 1995 statute.

Speaker 13 Nvidia also says that shareholders don't have to point to the contents of company documents to bolster claims that Huang's public statements were inconsistent with internal reports.

Speaker 13 And here is Nvidia's lawyer, Neil Katyal.

Speaker 21 Mr. Wong is not running a Ponzi scheme.
We're talking about one of the most respected CEOs of a dramatically important company.

Speaker 14 It does seem that Nvidia can count on at least one vote. Let's roll the tape.

Speaker 22 What motive could he have for making a statement that is so far off and that is,

Speaker 22 if you are correct, if the over a billion dollars figure is correct, is surely going to be going to come to light with

Speaker 22 severe consequences.

Speaker 20 That's the argument my friends make, and I think you kind of made it wrong with it.

Speaker 14 What exactly is wrong with it? I would like to know, too, Justice Alito. What exactly?

Speaker 14 It wasn't just Justice Alito, though, who seemed sympathetic to Nvidia's position.

Speaker 14 The Chief Justice also noted that when Congress enacted the PSLRA, it was with the intent to limit frivolous lawsuits by raising the bar for pleadings in shareholder suits.

Speaker 14 So, not clear where this is going, but it does seem it may be a narrower understanding of what it means to plead with particularity.

Speaker 14 In other court-related news, Ted Olson, the former Solicitor General, Supreme Court advocate, and a prominent member of the Federalist Society, passed away last Wednesday morning.

Speaker 14 Olson rose to prominence as the lawyer for George W. Bush in Bush v.
Gore, and he later served as Bush's solicitor general.

Speaker 14 Although he was a noted conservative, Olson's career took some surprising turns. Alongside David Boyes, his one-time adversary in Bush v.

Speaker 14 Gore, Olson litigated a challenge to Proposition 8, the 2008 California ballot initiative that withdrew the right to same-sex marriage in that state.

Speaker 14 After victories in the Northern District of California and the Ninth Circuit, Olson and Boyes litigated the challenge all the way to the Supreme Court, which dismissed it on standing grounds.

Speaker 14 And although they did not succeed in obtaining a victory on the merits, that case is widely credited with paving the way for Obergefell v. Hodges, which was decided two years later.

Speaker 14 Olson's stance on marriage equality was not always well regarded in conservative circles.

Speaker 14 And as a lifelong Republican, he also provoked conservative ire when he defended DREAMers in the Trump administration's efforts to rescind DACA.

Speaker 14 He was a very complicated person in that regard. I will just say that I taught with Ted at a couple of seminars in the Aspen Institute's Socrates program and got to know him pretty well.

Speaker 14 And I will just say at the outset, I was not expecting to like Ted very much, given how different our politics were.

Speaker 14 But he was just a really lovely, lovely person,

Speaker 14 very open-minded. We did not always agree on everything.
And there were certainly moments where I was like, nope, nope, I definitely don't agree with that. And I'm sure he said the same.

Speaker 14 But he was really warm and open-minded and open-hearted and spoke so lovingly of his family, his wife, Lady Booth Olson.

Speaker 14 And at a time when we just seem like mired in divisions, I kind of miss people like that.

Speaker 13 I just had one additional thought. Sorry, this is like going to be in a totally different tone and register.

Speaker 13 Do you think there are going to be like dead bears around HHS now? Like you're just going to like walk into HHS.

Speaker 14 That's a really big fucking pivot, Leo.

Speaker 13 I thought,

Speaker 13 rest in peace. I just refuse to believe he's going to be the HHS secretary.

Speaker 13 I don't feel optimistic about anything. And Gates, I don't know.
The rest of them, I'm sure, are going in. But

Speaker 13 I just feel like there will be some crazy developments that will mean he's not ever walking in the front door of that building. Perhaps it is wishful thinking.
It most likely is.

Speaker 13 Okay, well, even if he's not walking in the front door, he still might leave bare carcasses. Bear carcasses.
That's true. The two could both be true.

Speaker 14 I mean, whale juice in the fridge.

Speaker 13 I mean,

Speaker 14 speaking of beverages, before we go, I just want to shout out out Tiffany at the Smith in Lincoln Center, who is not only a faithful strict scrutiny listener, she makes an excellent Martha Rita.

Speaker 14 I just want to shout you out, Tiffany. Thank you so much.
You made my Tuesday night and I see you, queen.

Speaker 14 And I appreciate all the salt that you rimmed that glass with because, yes, it was salty like its namesake. Thank you.

Speaker 13 All right, that's all we've got for today. The world keeps spinning and so does the court and so do we for now.

Speaker 13 Should say like one thing if you want to hear more from us I think we've kind of shifted social media platforms where we are. I think all three of us are now primarily over at Bluer Skies on Blue Sky.

Speaker 13 So my handle is the same at Blue Sky. I'm just Leah Littman.
The podcast is also there.

Speaker 13 That is just strict scrutiny.

Speaker 13 So you can find

Speaker 13 Devin number in my Twitter handle, but I'm just Kate Shaw at Blue Sky. What about you? Are you Prof Murray? Prof M.
Murray everywhere.

Speaker 14 That's so nice. Every single place.
I love it. Prof.
M. Murray.

Speaker 13 But Blue Sky, the vibes have been good.

Speaker 13 I think it is, it feels like, I mean, I'm always a little bit light as a poster. I just dip my toe in occasionally, but I've definitely been checking it and seems really useful.

Speaker 14 I've been on a social media diet. It's just been hard.

Speaker 14 Twitter used to give me joy, and now it just makes me sad. And like, I'm trying to get into Blue Sky.
I just don't have the heart for it right now.

Speaker 13 Yeah, that's fair. But I think if you give it a chance, it might give you some joy too.
Yeah, you should be patient with yourself.

Speaker 13 Like Kate and I, I don't know, I feel like I was emoting really hard last week. And I feel like, I don't know if this was also true for you, Kate.

Speaker 13 Like I got several messages from people like, are you okay? Are you okay? Right. I hope you're doing well.

Speaker 13 And like, I was not really able to do much, if anything, last week. So yeah, just be patient, Melissa.
Like, we got you. I'm glad you're back and we'll get you there.

Speaker 14 What does it say about me that I went away with my husband to celebrate our 20th anniversary and

Speaker 14 I was still so sad and now I'm back with you guys and I feel a little better.

Speaker 13 It's not, I don't think, yes, but I don't think it's Josh related. I think it's just not him.

Speaker 13 Time does sell. It is time.

Speaker 13 It's been a week. It's been a week.

Speaker 13 It's really time.

Speaker 13 And also, like, register. You know, I feel like we talked a little bit about this last week, Kate, but, you know, this is enough to just make you crazy and beat you down.

Speaker 13 And there just have to be different ways of coping with it and pushing back and humor and like mocking these absolute unqualified dipshit fascist clowns, right? Like that's sometimes helpful. It is.

Speaker 13 It can be cathartic.

Speaker 14 I've always found it to be more cathartic than the pussy hat.

Speaker 13 personally. Yes.
Yes. Yeah.

Speaker 14 One more thing before we go. Are you wondering what comes next? Well, Stacey Abrams is going to talk with historian Heather Cox Richardson to see how history can guide us forward.

Speaker 14 Together, they dive into strategies for countering disinformation, harnessing states' rights, and how past eras can inspire progress today.

Speaker 14 Plus, Stacey answers audience questions on getting involved and impacting your community in this post-election environment. Don't give up.

Speaker 14 Get on your pods and listen to the latest episode of Assembly Required now, or you can watch it on YouTube.

Speaker 13 And And for a different take, last week on Hysteria, Erin and Alyssa brought together journalist Erin Haynes, activist Julissa Arce, and comedian Megan Gailey to talk post-election.

Speaker 13 Hear their takes on what it really takes for a woman to become president to women voting for abortion rights while supporting anti-abortion candidates. They cover it all.

Speaker 13 And since women are divorcing their MAGA husbands, is it finally time to unfriend your Trump-supporting friends? They've got answers.

Speaker 13 Listen to Hysteria Now or head to their YouTube channel for full episodes and more.

Speaker 14 All right, Kate, send us home. I will.

Speaker 13 Strict Scrutiny is a crooked media production hosted and executive produced by Leah Lippmann, Melissa Murray, and me, Kate Shaw, produced and edited by Melody Rowell.

Speaker 13 Michael Goldsmith is our associate producer, audio support from Kyle Seglund and Charlotte Landis. Music by Eddie Cooper, production support from Madeleine Herringer and Ari Schwartz.

Speaker 13 Matt DeGroote is our head of production. And thanks to our digital team, Phoebe Bradford and Joe Matoski.
Subscribe to Strict Scrutiny and YouTube to catch full episodes.

Speaker 13 Find us at youtube.com/slash strict scrutiny podcast. And if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode.

Speaker 13 And if you want to help other people find the show, please rate and review us. It really helps.

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