Boy Math, Boy Law, Man Problems

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Speaker 3 Mr. Chief Justice, please, the court.

Speaker 3 It's an old joke, but when an argument man argues against two beautiful ladies like this, they're going to have the last word.

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Speaker 2 Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts for this first segment today.
I'm Kate Shaw.

Speaker 2 And I'm Leah Lippmann.

Speaker 1 And I'm Melissa Murray.

Speaker 1 And per our last episode, or really just per usual these days, we are going to spend the first part of this episode talking about some legal news, including new developments in the redistricting fight.

Speaker 1 We'll also give you an update on reproductive rights and wrongs, as well as the latest on the Comey James prosecutions and, of course, Le Ferre Epstein.

Speaker 2 And some worms. There will be worms.

Speaker 1 I just said we would cover developments in Le Fer Epstein.

Speaker 2 Like, you did not have to get there are actually many worms to cover.

Speaker 2 Among the, you know, worm coverage, the main winner, though, is going to be George Soros. Always.

Speaker 2 If none of this makes sense to you, congratulations. You are less online than Fifth Circuit judges.
And don't worry, we consume the content for you and are about to report back.

Speaker 2 Once you're well through all of that news, we will feature a conversation that Kate had with Professor Jill Hasday about Hasday's recently published book, We the Men.

Speaker 2 Actually, both parts of today's episode are kind of about We the Men, just very confident. 100%.

Speaker 2 On point.

Speaker 1 It seems like the whole last year has been about We the Men.

Speaker 1 In any event, we will end the episode per usual with our favorite things.

Speaker 2 Okay, let's dive right in. First up, the news and first item of news, developments out of DC.
Last Thursday, Judge Jeb Boesberg issued a ruling in a criminal case allowing federal prosecutors in D.C.

Speaker 2 to commence a prosecution based on an indictment issued by a local D.C. grand jury rather than a federal grand jury.

Speaker 2 Although the ruling applied specifically to that criminal case, it might have implications for other prosecutions in the District of Columbia, which, as we've discussed, stands in an unusual posture with respect to Congress and federal law.

Speaker 1 As Judge Boseberg noted in the ruling, D.C.'s unique law gestured toward an exception to the federal grand jury rule, and that exception would essentially allow indictments from both federal and local D.C.

Speaker 1 DC grand juries. Now, this is meaningful because it would allow federal prosecutors in DC to circumvent federal grand juries in favor of local grand juries whenever they may want to do so.

Speaker 1 And that might actually be a very concerning development, given that federal grand juries have proven more skeptical of this administration and its prosecutorial efforts in the District of Columbia.

Speaker 2 Judge Boseberg conceded that such a possibility was, quote, troubling, but maintained that it was for Congress rather than the courts to change the laws that apply to prosecutions in the federal district.

Speaker 2 That's not all the Judge Bosberg news we have.

Speaker 2 As you likely know, months after Judge Bosberg's plan to begin contempt proceedings against the administration in the Alien Enemies Act case was appealed to the DC Circuit, the circuit returned the issue to Judge Bosberg, who held a hearing last Wednesday.

Speaker 2 At that hearing, Boseberg outlined the next steps for the contempt investigation, including seeking testimony from DOJ personnel such as Arez Rouveni, the former DOJ lawyer who had worked on the matter and filed the whistleblower complaint detailing what went down at the DOJ during the deportation in Brolio.

Speaker 1 Sounds big.

Speaker 2 Yeah.

Speaker 2 Bozberg also indicated he will call Drew Ensen, the DOJ official who relayed Boseberg's initial order to stop the flights to DOJ Brass.

Speaker 2 When the government pushed back on reopening the contempt issue, Bozberg was not having it, as he retorted, quote, I intend to proceed just like I did in April, seven months ago.

Speaker 2 This has been sitting for a long long time, and justice requires me to move quickly.

Speaker 1 So, this totally reminded me of a scene from, I think it was season four of The Crown where Queen Elizabeth is meeting with Margaret Thatcher after Margaret Thatcher has basically slashed all social services in Britain.

Speaker 1 And the queen says to Margaret Thatcher, Well, you've moved very quickly, Prime Minister.

Speaker 1 And then Margaret Thatcher says to the queen, like completely looked her in the face, and goes, That is because I am in a hurry. That's the whole Judge Boseburg energy.

Speaker 2 So he's Thatcher here. He's totally Thatcher here.

Speaker 1 That is because I'm in a hurry.

Speaker 2 Well, and the DC Circuit made him wait a long ass time.

Speaker 2 They're ready to go.

Speaker 2 And I think it's going to be hard for them to stop him at this point. So I think that this is probably actually moving forward.

Speaker 1 I think the testimony is going to be wild.

Speaker 2 Yeah.

Speaker 1 Like calling those people in.

Speaker 2 Yeah.

Speaker 2 But that is not all out of D.C. So elsewhere in the D.C.

Speaker 2 federal courthouse last week, in a 61-page ruling, Judge Gia Cobb temporarily blocked the Trump administration from maintaining more than 2,000 National Guardsmen in D.C., concluding that the city was likely to succeed on its claim that the deployment was unlawful.

Speaker 2 As Judge Cobb noted, the deployment, which has been in effect since August, likely exceeds the president's power over the local D.C.

Speaker 2 National Guard and impermissibly undermines D.C.'s rights to self-governance.

Speaker 2 She also noted that these concerns regarding overreach and home rule were exacerbated by the fact that a significant portion of the troops are from other states and that the deployment kind of seems to be semi-permanent.

Speaker 2 Judge Cobb did pause her ruling for three weeks, allowing the administration time to either remove the troops from DC

Speaker 2 or and or, I suppose, appeal the decision.

Speaker 1 The next bit of news we wanted to cover with you is the latest in the mid-cycle redistricting flap. And let's just say things have gotten a little messy.

Speaker 1 So for those of you who are not up to speed, we should let you know that Donald Trump realized that he might actually lose control of the house in the midterm elections in 2026, because if you've noticed, the price of eggs has not gone down at all.

Speaker 1 And the tariffs have made everything about a zillion times more expensive. So it's bad news all around.

Speaker 1 And just as President Trump asked Georgia Secretary of State Brad Raffensperger to find him a few extra thousand votes in the 2020 presidential election, he turned to Texas Governor Greg Abbott to find him some new congressional seats for Republicans.

Speaker 1 And so Governor Abbott launched an unorthodox mid-cycle redistricting effort in the Lone Star State.

Speaker 1 Now, we say this is unorthodox because redistricting typically happens right after the decennial census.

Speaker 1 And Texas, per that practice, actually redistricted after the 2020 census and wasn't due to redistrict again until after the 2030 census. And since we're not in the future yet, that hadn't happened.

Speaker 1 And so if you're counting any of this, the new census is actually five years in the offing. And Governor Abbott basically said, you know what? Let's do some boy math here.

Speaker 1 Let's just do some redistricting right now.

Speaker 2 And then the boy math really took off because after Texas decided to redistrict five new seats for the president, California governor Gavin with the good hair Newsom decided that Democrats should experiment with this thing called having a backbone and fighting back.

Speaker 2 So he launched a ballot initiative that would allow California to do mid-cycle redistricting too and counteract the Texas Republican gains with some California Democratic gains.

Speaker 2 And California voters were all for it.

Speaker 2 In a special election where the only issue on the ballot was Proposition 50, the redistricting proposition, California voters overwhelmingly said, yeah, let's fucking go. And boy, math,

Speaker 2 exactly. That set off a redistricting arms race.

Speaker 2 Republicans in Missouri and North Carolina forged ahead with mid-cycle redistricting plans, and Virginia Democrats have taken steps toward passing new district lines there.

Speaker 2 And the president has pressured other red state legislatures to get on the stick and redistrict him a more favorable map. But actually, kind of an interesting development.

Speaker 2 Some of those red state legislatures, maybe taking a page from California and showing a different kind of spine of their own, are not just rolling over.

Speaker 2 So, as the New York Times reports, amid a lot of pressure from the president to redraw district maps, Indiana Republicans so far are actually saying no.

Speaker 2 The president has predictably responded by threatening these recalcitrant legislators with primary challenges. So, we will see how that story develops.

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Speaker 1 And of course, the courts have been really busy with these redistricting-related cases.

Speaker 1 So there are challenges to the GOP-led redistricting effort in Missouri and North Carolina that are currently pending.

Speaker 1 And California Republicans have filed suit challenging the validity of Proposition 50. That's the redistricting ballot initiative that recently passed.

Speaker 1 And just last Tuesday, a three-judge panel in Texas enjoined Texas's new congressional map.

Speaker 1 That is the map that Texas Governor Greg Abbott decided to boymath after the president asked him to find five new seats.

Speaker 1 And when the court actually issued their ruling, they didn't just issue a straight-up ruling. They spilt some tea, a lot of tea, and the tea was hot.

Speaker 1 As Judge Brown, a Trump appointee, explained, although the Texas redistricting push had been defended in litigation as a partisan effort, in fact, Texas legislators weren't keen to redistrict until they received a letter from the Department of Justice advising them that multiracial coalition districts in blue cities violated Section 2 of the VRA.

Speaker 1 Basically, this is like a Kavanaugh fever dream turned into a real-life legal argument.

Speaker 1 So recall that in his Cav Currency in Allen versus Milligan, Coach Kay Muse that the process of creating multiracial coalition opportunity districts or single block opportunity districts that sought to to optimize representation among minority voters was okay under Section 2.

Speaker 1 But like affirmative action, there was an expiration date.

Speaker 2 And Coach K mus that maybe that expiration date is right now.

Speaker 2 So the Trump Justice Department took that logic and ran with it, writing a letter advising the Texas legislature that time's up on coalition districts and opportunity districts, and that the legislature should redistrict for the purpose of dismantling those districts.

Speaker 2 And the Texas legislature was, as they say, down to redistrict.

Speaker 1 DTR.

Speaker 2 Exactly. The new DTR.
Yes. Well, it's only one DTR.

Speaker 1 The other one is DTF. Yeah.

Speaker 2 It's a different DF, right? Very different. Very, very different.

Speaker 2 Anyway, Judge Brown.

Speaker 2 What?

Speaker 2 I know just the tip, Leo.

Speaker 2 Just the tip. Well, I mean, this particular redistricting, just saying.

Speaker 1 Anywho, Judge Brown, who wrote for the two-judge majority, was so shady to the DOJ in this opinion.

Speaker 1 He waspily noted that even the Texas AG's office, who he called ostensibly the president's allies, thought the DOJ letter was, quote, ham-fisted and a mess.

Speaker 1 He also notes that the DOJ made significant factual errors as to the composition of the districts in question and to the legislature's rationale for redistricting back in 2021 after the 2020 census.

Speaker 1 According to the DOJ letter, the Texas legislature redistricted in order to create opportunity/slash coalition districts for minority voters, which, as Kate just mentioned, the DOJ says is impermissible.

Speaker 1 However, as Judge Brown explains it, in separate litigation concerning the validity of the 2021 map, Texas legislators avared that they were actually doing a partisan gerrymander, not a racial gerrymander, when they drew the 2021 map.

Speaker 1 Oh, snap, sometimes it bees your own people.

Speaker 2 I love this opinion so hard. It read Harmee Dylan, the author of this letter for filth.

Speaker 2 The opinion made clear that DOJ dug its own grave here by being so loud about how the mid-cycle redistricting push was all about race and, more particularly, about erasing districts where minority voters could form majority political coalitions.

Speaker 2 I vaguely recall a wise man once saying, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race you fuckheads um indeed judge brown recited that chief justice roberts banger enfolds a block quote near the beginning of his opinion albeit without the fuckheads part um but the doj letter like wildly misrepresents the relevant precedent as well the fifth circuit had never said that these coalition districts were unconstitutional it just said the voting rights act didn't require them like reading it's real hard for these people.

Speaker 2 The thing that is so just wild and delicious about all of this is that if DOJ had just kept its mouth shut and taken

Speaker 2 your lane, maintained in your lane. I mean, again, as the stringer bell said, do not take motherfucking notes on a racial gerrymander.
And yet, DOJ was not up to speed and did that.

Speaker 2 And we should stop and say, we're still in the context of this incredibly distorted landscape in which the Supreme Court has handed down this set of guidelines that make partisan gerrymanders, you know, at least non-justiciable, maybe affirmatively great.

Speaker 2 But again, given all of that, it is wild. I mean, this is probably obvious to our listeners, but that's just an intolerable and abhorrent state of affairs.
And yet, that's where we are.

Speaker 2 And so if the Justice Department hadn't suggested that actually race, not partisanship was the reason to redraw these lines, it seems pretty clear, actually crystal clear, that there would be no legal objection that a federal court would entertain to these lines.

Speaker 2 And yet, the Justice Department, essentially telling on themselves, brought this potential legal peril on Texas, raising the potential that California's redistricting efforts, which are quite clearly partisan, will stand while these Texas efforts fall because California's maps were, you know, I think top to bottom redrawn for explicitly partisan reasons.

Speaker 2 And justice has really complicated the story about the reasons that Texas has drawn their lines.

Speaker 1 I mean, it's not just they complicated it. Like, this is an entire self-owned.
Rucho literally says, just call everything a partisan gerrymander.

Speaker 1 And again, we've talked about this on the podcast so many times because race and partisanship are so closely aligned in many of these southern states.

Speaker 2 You can get away with racial gerrymandering by just saying you're doing partisan gerrymandering unless you want to write a fucking letter talking about the racial gerrymandering you really want to do.

Speaker 1 Like, it's not hard. I mean, like, the boy math was really mathing here.
In any event, back to what might happen with regard to California.

Speaker 1 So, California's Proposition 50 initially had some language saying that California would only redistrict in response to Texas's redistricting.

Speaker 1 But before the measure actually made it to the ballot, that language was withdrawn. So, here's some more great boy math.
If Texas's new map falls, California's new redistricting can still continue.

Speaker 1 So again, the self-owning is just like, wow, this is like a classical liberal property owner dream. Like you are owning everything.
You've owned yourself fully and entirely.

Speaker 1 And I'm not sure that SCOTIS will let Gavin Newsom have a big win like that, but just on its face right now, massive, massive self-own.

Speaker 1 Where is this all going? This was a three-judge panel that heard this case about the Texas maps. And so the typical process now would be that there isn't an intermediate appellate court decision.

Speaker 1 It just goes directly to the Supreme Court. And lo and behold, Texas wasted no time running to the court with an emergency petition for none other than friend of the pod, Circuit Justice Samuel A.

Speaker 1 Alito, which brings us to a dissent from Judge Jerry Smith, a longtime judge on the Fifth Circuit, who was the third judge in this three-judge panel.

Speaker 2 Suffice to say that, quote, judge.

Speaker 1 Let me just suffice to say that this was unlike any dissent that I have read in my entire life as a living, breathing person walking this earth. Seriously, Judge Smith was seriously on one.

Speaker 1 He took the majority to task for what he viewed as their malfeasance in slow walking the majority opinion in order to avoid having to grapple explicitly with the terms of his dissent.

Speaker 1 He accused them of simply announcing the majority opinion before he had an opportunity to review it and fine-tune his dissent. And to be fair, I can see why that wrinkled.

Speaker 1 Like typically there's an exchange of these drafts between chambers before everything is finalized.

Speaker 1 But again, there's a huge deadline looming because the Texas congressional candidates have to declare their candidacy before, I think it's December 8th. So time really is of the essence.

Speaker 1 And this was a very complicated case with a lot of record evidence.

Speaker 1 So it wasn't, I think, yes, a a lot of time was spent on this, but I think it was because a lot of time had to be spent on it, even as that deadline loomed.

Speaker 1 So, you know, maybe there's no reason to assume bad faith, but I can still understand why you would be annoyed at not having the opportunity to present your dissent fully and have it entertained and reviewed and incorporated into the majority opinion.

Speaker 1 But.

Speaker 2 But, and now we get to the rest of the dissent, which reads like a Fox News conspiracy fever dream. So I will quote directly as cannot make this shit up.

Speaker 2 Near the beginning of the opinion is this quote. The main winners from Judge Brown's opinion are George Soros and Gavin Newsom, end quote.
Didn't have that on my bingo card.

Speaker 2 If you want to read this, control F Soros and just try to guess how many mentions there are.

Speaker 2 It's more than 10. And not just George.
Not just George. Also, that's why I said

Speaker 2 just Soros. Okay, so next quote.
Plaintiff's top expert Matt Barretto is a Soros operative. His CV confirms that he expects to receive $2.5 million in his Soros piggy bank.
I want to continue.

Speaker 2 Quote, I suppose someone will say that in making these comments about the Soros connections, I'm expressing a political view, not the proper role of a federal judge, end quote. Some might, sir.

Speaker 2 I did wonder, like, is this boy law? I mean, like, how how wild is it that apparently the Reconstruction amendments are the fault of George Soros?

Speaker 2 Like, I, I, I was not time machine, went back to 1868, was like, let's do this.

Speaker 2 The conspiracy is Jews control the weather, didn't realize it was also about time, did not realize that in the year of our Lord 2025, I would read an opinion that said it's the Jews' fault.

Speaker 2 Um, and yet, and yet

Speaker 1 I do also Gavin Yousome, not not John, right?

Speaker 2 Also, Gavin Yousome. Eusebium.
Yeah, yeah. That footnote that some will say I'm expressing a political view.

Speaker 2 Did you wonder whether a law clerk like sort of tried, mustered their courage and came and said, boss, you might want to think about some of this? I mean,

Speaker 2 and that's what he did. He sort of dropped a footnote, maybe.
I'm not sure, but can you imagine being in a chambers that produces this?

Speaker 2 I mean, there is also, this is like the least noteworthy thing in the opinion, but there is a fawning nod to one Sam Alito, who Judge Smith references in a diatribe against activist judges.

Speaker 2 And it's pretty clear that this is a dissent that very much knows its audience.

Speaker 1 I mean, the other thing I will say about this is like, it does read a little bit like Kavanaugh beat poetry because it's like, there are all these like little stops, stops, like all the asterisks everywhere.

Speaker 2 Yes, yes, I dissent.

Speaker 1 Asterisks, asterisks, asterisks. Yeah.
And then there's another beat, I dissent. I mean, like, someone really needs to put this to ether and make it a judicial distract.

Speaker 2 Yes. Yeah.
So I have to say, you know, Jerry Smith at 78 years young is not really in the running for a future Supreme Court seat.

Speaker 2 So this is not an audition, which immediately made me wonder how his colleagues on the Fifth Circuit, who are running to be America's next ops COTIS justice, will top an opinion like this.

Speaker 1 This is the Janice Dickinson moment where he went full Janice Dickinson and showed these kids how it's done.

Speaker 2 Yeah, because after Smith, you know, posted this, whatever we're calling it, you know, know, the best his Fifth Circuit colleague Andy Oldham could muster was like a passing shot at Blue Sky, referring to, quote, a uniform law that apparently has fewer adopters than Blue Sky, end quote.

Speaker 2 And sir, that's just not going to cut it. Like you got to step up your game.

Speaker 1 Kate, do you know who Janice Dickinson is?

Speaker 2 I just Googled her.

Speaker 2 She was on America's Next Top Model. Was she a judge? Was she a judge?

Speaker 2 And was a model before that. Businesswoman.
She's the world's first supermodel, as she says. Is that right? That's what she says.
That's what she says. Okay.
Well, I know.

Speaker 1 That means it's self-evidently correct. Just like George Soros and Gavin Newsome orchestrated all of this.

Speaker 2 So, of course, after we recorded, Sam Alito had to go and be a messy bitch. He is from New Jersey, so he does love the drama.
Okay, here's what happened.

Speaker 2 As we noted, Texas had already rushed off to the Supreme Court and specifically to Sam, the circuit justice for the Fifth Circuit, asking for a pause of this lower court ruling, which blocked Texas from using their extremely racially gerrymandered maps and limited them to using their old, also extremely gerrymandered, but partisan gerrymandered maps.

Speaker 2 So Justice Alito requested a response to Texas's stay application by Monday, end of the day. But then, and this is the messy part, the guy granted an administrative stay.

Speaker 2 This was wholly unnecessary, and I will try to explain why. So administrative stays by the court time to decide whether to grant a full stay, a stay pending appeal.

Speaker 2 And an administrative stay might be necessary or it might really be impactful, you know, when it truly pauses a decision or order that affects the day-to-day status quo.

Speaker 2 So just to take an example, an administrative stay of a decision blocking the president from firing someone, that would change the day-to-day action because it affects whether the person the president tried to fire will be in their job until the Supreme Court decides the stay application.

Speaker 2 Similarly, the case about the roving ICE patrols, granting an administrative stay there, that would allow ICE to conduct roving patrols up until the court decides whether to grant a stay.

Speaker 2 Again, like day-to-day on the ground, things are going to happen. Same with the SNAP case.

Speaker 2 Granting the administrative stay meant the government didn't have to distribute SNAP benefits over the days up until the court would have decided to grant a stay. Those aren't the circumstances here.

Speaker 2 The question here is whether Texas can conduct a set of elections under these maps.

Speaker 2 Until candidates have to file papers to run, you know, later in December, there aren't elections that are being conducted.

Speaker 2 So the administrative stay doesn't really do anything, you know, again, on the ground day to day. Now, a stay, a stay will do something.

Speaker 2 A stay will determine what maps Texas will use in the upcoming midterm elections. But the administrative stay, again, there aren't elections unfolding between now and December 8th.

Speaker 2 So an administrative stay just seems unnecessary, you know, unless the court planned to allow the administrative stay to remain into effect until after December, in which case it would just be a stay.

Speaker 2 But given the quick deadline that Justice Alito imposed on the briefing, that doesn't seem like it's in the works. So could this be the very first administrative stay issued? just to be petty?

Speaker 2 As I said, Sam is a messy bee from New Jersey who loves the drama.

Speaker 2 And I will leave you with that thought as we return to our episode discussing what the Supreme Court might do on the actual stay pending appeal, which will determine what maps Texas will use in the upcoming elections.

Speaker 1 Anyway, what is likely to happen in this case?

Speaker 1 I think some real tomfoolery, obviously. I think it's very likely that SCOTUS will stay this case in light of its pending deliberation in Louisiana versus Cal A.
Remember that case?

Speaker 1 And then perhaps there is another subsequent state invoking Purcell. That is the case that addresses whether or not changes to voting district maps can happen with an election looming.

Speaker 1 The Texas congressional candidates have to file their paperwork again by December 8th.

Speaker 2 I don't think they can hold it for Calais. I don't know.
Can I put out a marker? So like Calais is formally a Voting Rights Act case, right?

Speaker 2 Like there, the state was forced to draw a district because of the Voting Rights Act, right? This is just like a straight up 14th, 15th Amendment racial discrimination claim.

Speaker 2 But like the very idea that they

Speaker 2 could or might say that the districts in Louisiana drawn to comply with the Voting Rights Act were impermissibly motivated by race, but these Texas districts, right, where Harmet Dylan told them to change the racial composition of these districts were not.

Speaker 2 I mean, that would be

Speaker 2 like a possibility. No, but Leah,

Speaker 2 it's completely different.

Speaker 1 This was Mark Elias's point. Like they purposefully use conservative logic in crafting this argument.

Speaker 1 Like, they sort of flipped it on its head, which, again, like a win here may signal a big loss in California. Yes.

Speaker 2 Well, we already got some signals that that was

Speaker 2 collected.

Speaker 2 I'm just saying, you're suggesting they can't distinguish the two.

Speaker 2 And it's obvious that drawing districts to enhance black voting power is problematic and diminish black or minority voting power is completely permissible under the 14th.

Speaker 2 That was the project of reconstruction. Right, exactly.
So there's a principal distinction to be drawn between the two. I'm worried about Purcell, but I just actually think even,

Speaker 2 I think it would be very hard on their own practices to just hang on to this. Now, Kale, they may decide super fast.
So then it won't be so.

Speaker 2 I think Kaleville can't invoke sooner than you think. You can't invoke Purcell because this is a redistrict.
There were already a set of compliant maps in place, right?

Speaker 2 Like the idea, it's just, anyways, sorry. I'm already going nuts.
Yeah.

Speaker 2 Well, it was fun while we had it, that opinion, and we will see

Speaker 2 what hash, yeah, both of them. That's definitely true.
Fun in different ways.

Speaker 2 See what hash SCOTUS makes of them. But we should move on to developments in the Comey retribution case.
And this also connects to DOJ just absolutely bungling the whole litigation thing.

Speaker 2 And we are talking, of course, about the recent developments just in the past week involving the prosecution of former FBI director James Comey.

Speaker 2 So, in a remarkable 20-plus page ruling last week, Magistrate Judge William Fitzpatrick pretty much confirmed what we all strongly suspected, which was that interim United States Attorney for the Eastern District of Virginia, Lindsay Halligan, is not a prosecutor despite her job title.

Speaker 2 The magistrate judge said that when Halligan made her solo appearance before the grand jury in September to seek an indictment accusing Comey of lying to and obstructing Congress in 2020, she made at least two fundamental and and highly prejudicial misstatements of law.

Speaker 2 The judge also pointed out that the grand jury materials he had ordered her to turn over appeared to be incomplete and likely did not reflect the full proceedings.

Speaker 2 I mean, this actually isn't even the craziest thing at all that

Speaker 2 we just said. We're going to warm up because this standing alone in normal times would be completely gob-smackingly insane.

Speaker 2 So let me just tell you about the two fundamental and prejudicial misstatements that were the topic of this opinion.

Speaker 2 It seems that Lindsey Halligan told the grand jury that Comey does not have a right to not testify at his trial. And, you know, an obvious response to that, Ms.

Speaker 2 Halligan, is that the Fifth Amendment does say no person shall be compelled in any criminal case to be a witness against himself.

Speaker 2 Understandable, you didn't have to work that deeply in your insurance practice with this principle, but it is a pretty foundational one.

Speaker 2 The second highly prejudicial misstatement is even better.

Speaker 2 So Halligan also basically suggested that the grand jury didn't have to decide whether to indict Comey based on the evidence actually presented to them.

Speaker 2 It could instead indict him based on the government's assurance that the government had better evidence that might be revealed at trial. Basically, trust us, guy's guilty.

Speaker 2 And if you want to hear the evidence slash see act two, then you've got to indict like a girl.

Speaker 2 That's just so insane.

Speaker 1 And that's not it.

Speaker 1 This was all a warm-up, like literally an amused bouche for the main Lindsey Halligan course.

Speaker 1 So on Wednesday, at a hearing before Judge Michael Nakmanoff, who is the presiding judge in the case, Judge Maknamoff went after the prosecution, asking the government's lawyers about all of the apparent irregularities that occurred during the grand jury phase.

Speaker 1 And let's just say the government's responses were illuminating.

Speaker 1 Halligan admitted that she did not show the final indictment to the grand jury, which is to say the grand jury didn't actually know or sign off on the charges for which it was apparently indicting Comey.

Speaker 2 And that's not it.

Speaker 1 Apparently, they didn't know because the full grand jury didn't vote on the indictment before it was presented in open court.

Speaker 2 And I'm just going to say, it seems bad, real bad. Yeah.

Speaker 2 So if you're not a lawyer, it might be a little hard, you know, for this to immediately register how shocking it is, you know, a little context. So grand juries are not like trial juries.

Speaker 1 They are larger, like 12 to 23.

Speaker 2 And there's no judge and no defendant or defense counsel in the proceeding. Like the prosecution has the room to themselves.

Speaker 2 And that kind of power is checked by explicit procedures, like having the whole grand jury review the charges before voting to approve an indictment. And the idea that a U.S.

Speaker 2 attorney would only show the indictment to the four-person is insane, but apparently that is what happened here.

Speaker 2 And there's even more messiness because the full grand jury was shown a previous version, but there's also some ambiguity in the notations about whether the full grand jury even voted to indict on the other two remaining counts that the four person says they did.

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Speaker 2 And that is actually somehow not all. So, at another point in this hearing, one of Ms.
Halligan's subordinates, Tyler Lemmons, ended up in the hot seat.

Speaker 2 So, Lemons is an assistant United States Attorney in North Carolina, but was brought in to work on this case when it seems like none of the line prosecutors in the Eastern District of Virginia would do so.

Speaker 2 So, Lemons, under questioning, acknowledged that there existed something called a declination memo. So, a memo giving the reasons why the U.S.

Speaker 2 Attorney's Office, prior to Halligan's arrival, was not going forward with the prosecution of Comey.

Speaker 2 But then Lemmons explained that someone in the Deputy Attorney General's office, so that's Todd Blanche's office, had instructed him not to discuss in open court the existence of this memo, whose existence he did acknowledge, because the very existence of the memo was privileged information.

Speaker 1 Again, boy math, boy law.

Speaker 1 At At this point, Comey's lawyer, veteran SCOTIS advocate, Michael Driben, got up and basically said, Your Honor, would you like to be the mayor of Clown Town? Because that's what this is.

Speaker 1 I'm kidding. Michael Drieben.

Speaker 2 Michael Driben would never say that. He would never say that.
But I think he was thinking it. He might have been thinking.

Speaker 2 I don't even know if he thinks those things, but.

Speaker 1 Well,

Speaker 1 let's just say at some point, he had to, like, this is a man who's argued before the Supreme Court so many times. And he must have been listening to this.
Like, what is this?

Speaker 2 Where am I? I can't believe this is my life.

Speaker 2 I was at the United States Supreme Court making normal arguments for like 40 years and now this is my life. Exactly.
It's like one of those record scratch moments.

Speaker 2 You might be wondering how I got here.

Speaker 2 Anyway, Dreebin got up and reiterated all of the irregularities that had occurred here and urged the court to simply dismiss this sham prosecution for the retribution-laced, unconstitutional mess that it is and put everyone out of their misery and

Speaker 2 maybe

Speaker 2 yeah, so that should have been the last beat on this story last week.

Speaker 2 And yet on Thursday, I think it was, DOJ decided to follow up this hearing with a short document that seemed to walk back DOJ's own, like Clemens and Halligan's own representations.

Speaker 2 And in this like, JK, Your Honor,

Speaker 2 they basically said, never mind everything we said.

Speaker 2 The grand jury actually did vote on the final indictment our bad we got that slightly wrong but having just said the opposite in court i don't think this like four page memo is going to clear things up so i'm not sure what the next move here is but i don't think it's going to be

Speaker 2 another cell phone does another cell phone sure does so as we said in the intro like this is a truly we the men slash we the men's episode and it wouldn't be a week in legal news without a new development in lafaire epstein and once again we time out i think that earlier discussion was really a we the Lindsay Halligan.

Speaker 2 That's right. That's we the men's haligan eraser.

Speaker 1 It wasn't just yeah, like let's not erase like women

Speaker 2 and harmee Dylan before,

Speaker 2 you know. So, yes.
Um, anyways, so you know, we are once again in a position of having to ask, what is it with this administration and accused sex traffickers?

Speaker 2 Running point for alleged sex offenders seems to be a thing because last week new reporting emerged showing that the White House intervened to help a sex criminal. But no, not that one.

Speaker 2 This time it's a team of alleged sex traffickers. But no, not those ones.
This time, Andrew Tate and his brother, truly no sex traffickers left behind.

Speaker 2 So ProPublica broke the bombshell story that the White House intervened into a Department of Homeland Security investigation into the Tates,

Speaker 2 who had been accused of sex trafficking, sexual assault abroad and are now back in the United States. So pursuant to a U.S.

Speaker 2 investigation, DHS reportedly seized the Tates electronic devices upon the brothers' arrival in the U.S.

Speaker 2 But then DHS promptly returned those devices after having been instructed to do so by the Trump White House and not just anyone in the Trump White House, specifically one Paul Ingracia, Trump's failed nominee to head the Office of Special Counsel, whose nomination failed in part because he was accused of sexually harassing a female subordinate and maybe also being Nazi curious.

Speaker 1 All right, let that one wash over you. While you're thinking about it, let's go back to a more familiar sex pest.

Speaker 1 The release of the Epstein emails last week included thousands of pages and lots of analyses of the emails.

Speaker 1 And we talked about it last week on the episode, but all of the analysis and all of the email leaks continued even after our recording.

Speaker 1 So we wanted to highlight one particular series of exchanges that was identified after we recorded last week, and that exchange involved Larry Summers.

Speaker 1 In our last episode, we discussed the 2017 email in which Summers wrote to Epstein to complain that Me Too had gone too far. And maybe that was something of a tell.

Speaker 1 Yeah.

Speaker 2 Because then people focused on some exchanges that occurred during 2018 and 2019, i.e.

Speaker 2 the supposed height of the Me Too movement that had just gone too far in policing sexual misconduct and abuse of women.

Speaker 2 So then Summers emailed Epstein asking for Epstein's advice on sleeping with a woman, several decades Summers Jr. in Summers' field, economics, who he also described as a mentee.

Speaker 2 And the emails basically straight up lay out a sex for professional connection scheme.

Speaker 2 So Summers claimed that his quote best shot was that the woman found him, quote, invaluable and interesting, end quote.

Speaker 2 This is like, he admitted, like, this is one of the most senior scholars hoping a junior scholar will have sex with him that he recognizes she's not interested in for romantic reasons or sexual attraction, but might do it because he's, quote, invaluable to her career.

Speaker 2 So that's vile. And don't worry, it gets worse because, of course, it does.

Speaker 2 So the woman about whom they're talking is Asian, and Summers and Epstein referred to her in conversation by a code name, which was Peril.

Speaker 2 making their exchange a twofer

Speaker 2 misogyny and racism rolled up into one. Two great tastes.

Speaker 2 So these exchanges continued up until the day before Epstein was arrested in 2019.

Speaker 1 Which makes me want to ask once again, who ruined the workplace? It's definitely the women, I think.

Speaker 1 We were the ones who made these unrealistic demands about not wanting to be pressured or feel pressured or see other women feel or be pressured into sexual relationships with predatory men who leverage their seniority, power, and connections.

Speaker 1 Why can't we just lighten up and like let's

Speaker 1 take a joke, smile more?

Speaker 1 Anyway, some of the emails indicate that Jeffrey Epstein was corresponding about Ken Starr vouching for, wait for it, Brett Kavanaugh.

Speaker 2 So what?

Speaker 2 So apparently Epstein wrote to Bannon to crow that Starr was touting Kavanaugh's credentials to Ted Cruz and Tom Cotton, two Republican senators who would vote to confirm Coach Kavanaugh to the high court.

Speaker 2 And in an email, Bannon noted that Starr thought Kavanaugh was brilliant, to which Epstein responded that Kavanaugh was, quote, reliable. Wait, did Epstein just feel relatable for a moment?

Speaker 2 Was he like, I wouldn't go that far, not brilliant.

Speaker 2 I think it was kind of a zing. Let's just go with reliable.

Speaker 1 Yeah, he was like, maybe two.

Speaker 2 So

Speaker 2 and reliable for what, though?

Speaker 2 So Bannon and Epstein have this big back and forth about the likelihood that a newly constituted court with Gorsuch and Kavanaugh installed would be be able to overrule Chevron versus NRDC, a case they also mentioned that Gorsuch's mother had been involved with, which was true.

Speaker 2 She had been Reagan's EPA administrator and was one of the parties named in the case when it was before the DC circuit. So they made that prediction.
Weirdly, that happened. Weird.
Yeah. Curious.

Speaker 2 Epstein was also coaching Bannon on how to discredit Christine Blasey Ford's testimony before the Senate Judiciary Committee.

Speaker 2 Epstein advised Bannon that Kavanaugh supporters should note that Ford was taking medications that could alter memory. Does raise a question, how would he know that exactly? Hmm.

Speaker 1 Anyway, this is probably bearing the lead a little bit, but Congress voted to release the Epstein files, and there was only one nay vote in the House, which is enormous given this president's hold on the Republican Party.

Speaker 1 And it went through the Senate without any alterations, which meant it then landed on POTUS's desk. And a schoolhouse rock imagines it.
The president signed that bill into law.

Speaker 1 But listeners, if you are awaiting a big wave of transparency as these files drop, I'm just here to remind you that you are a sweet summer child.

Speaker 1 Pretty sure that we are not going to be getting all of the files in one fell swoop.

Speaker 1 There will probably be a series of back and forths on redactions, possibly privilege, not to mention the fact that the president has suggested that there will be open investigations into the Democrats who have already been mentioned in the emails that have leaked already.

Speaker 1 And if there is an active investigation or prosecution, materials related to the individuals named in those investigations or prosecutions would not be able to be released.

Speaker 1 So this is all to say, please manage your expectations.

Speaker 2 So as you have undoubtedly surmised by this point, really big week for creepy men. But baby, don't worry.
It's not a worm. This might belong in the favorites thing segment, but fuck it.

Speaker 2 We're going to talk about it here.

Speaker 2 So, for those of you who have been thus far blissfully unaware, Olivia Nootsi, who was previously the Washington correspondent for New York magazine before she was fired after admitting to an inappropriate sexting relationship with Secretary Bildeber, raw milk, whale juice, you have RFK Jr., which is bad enough.

Speaker 2 He was also the subject of a profile she authored. So trying not to be overly concerned about the journalistic ethics here.

Speaker 2 Anyways, Anotsia is back. She has decided to write a book about the whole saga, and the book titled American Kanto came out last week.

Speaker 2 This is kind of like Josh Hawley's manhood, which is to say we are going to talk about it, but not tell you to buy it. Instead, just read the Vanity Fair excerpt, but we will give you a taste.

Speaker 2 And we are going to quote from it directly because we just cannot make this up.

Speaker 1 He desired. He desired desiring.
He desired being desired. He desired desire.

Speaker 2 I am so uncomfortable even hearing you read this.

Speaker 2 I feel like, ma'am, this is a Wendy's.

Speaker 2 I think you're on.

Speaker 2 He desired. Oh, no, please, no, Moza, no, not again.

Speaker 2 He desired being desired.

Speaker 1 He desired desired.

Speaker 2 I think we got it.

Speaker 1 Oh, Leah, looks good. You need a shower.

Speaker 2 We all need a shower after.

Speaker 2 Yeah. All right.

Speaker 1 Your turn, Leah.

Speaker 2 Okay.

Speaker 2 The real masterpiece, I believe, is as follows. Quote, I did not like to think about the worm in his brain that other people found so funny.
Side note, it me. It uses you got me.
Pretty funny.

Speaker 2 Anyways, the excerpt continues, quote, he made me laugh, but I winced when he joked about the worm. Baby, don't worry, he said.
It's not a worm.

Speaker 2 A doctor he trusted concluded that the shadowy figure was likely not a parasite.

Speaker 2 It was too late to interfere with the meme, but at least I did not have to worry about the worm that was not a worm in his brain. End quote.
Likely not a parasite also doesn't mean not a worm. Like

Speaker 1 there are a lot of worms here. That's all I'm going to say.

Speaker 1 Anyway, that is not all.

Speaker 1 Newtsie's ex-fiancé, Ryan Lizza, who himself is a former writer at The New Yorker, where he was accused of sexual misconduct, he put up a post on Substack that sought to contextualize things by detailing Olivia's daddy issues and her prior inappropriate relationships with older men.

Speaker 1 And he did so via the world's most tortured bamboo metaphor.

Speaker 2 Just going to say.

Speaker 2 We are not going to spoil the surprise of this post. We will just say the screams that were scrumped.

Speaker 2 Honestly,

Speaker 1 I will say this. I had forgotten about both of these men who were detailed here.

Speaker 1 And I thought it was interesting since I had forgotten about it and was not prepared to have one of these men back in my consciousness.

Speaker 1 That he nonetheless decided that he was going to post through it. And I'll just say that his posts are absolute art.

Speaker 2 I like, as this was unfolding, I was the person in that sickos gif, like

Speaker 2 watching right from outside the window, like laughing. Ha ha ha ha ha.

Speaker 2 Like that, that was, that was me. What I'll add is this is, I think I can say this without any spoilers, this is not at all the most important thing, but the kind of discovery narrative.

Speaker 2 No, it's not, I'm not even quoting from her, but the discovery narrative involves a letter that has this, like, I want to drink from your rain gutters on your house.

Speaker 2 But it's a love note that she apparently wrote, but then she had it in her suitcase when she returned from the business, from the reporting trip. She was workshop.
Yeah, maybe it in a draft. I mean,

Speaker 2 yeah. So anyway, not the most important thing, but I had some questions about that choice.
Yeah.

Speaker 2 And like, this is not to excuse like Newtsie's behavior, including her like laundering the reputation of a man who, right, is just enabling and facilitating potentially catastrophic human consequences and undermining the availability of vaccines and whatnot.

Speaker 2 But like one of the relationships that is detailed in this Liza post is exceptionally exploitative, right?

Speaker 2 It is a relationship that Nusie appears to have begun around like 17 with like a 50-something man who effectively like paid for her college and room and board. Like it is grotesque, right?

Speaker 2 And just kind of like underscores the real problems our society has with exploiting women.

Speaker 2 So let's talk about some maybe different kinds of quid proposed. At a recent televised gathering, the CEO of Rolex gifted Trump a gold clock.
Another Swiss company, MKS, also gave him a gold bar.

Speaker 2 So Rolex is a Swiss company, so is MKS. And even though they were not official representatives, maybe of the Swiss government, the week after these Swiss companies gifted POTUS this gold,

Speaker 2 Switzerland and the United States, purely coincidentally, I am sure, reached a deal that lowered U.S. tariffs on imported Swiss goods from 39% to 15%.

Speaker 2 Now, no one one is entirely sure if it's illegal for the president to accept gold bars or gold clocks as bribes in exchange for lowering tariff rates, thanks in part to the Supreme Court.

Speaker 1 Leah, I think you know that this was not a bribe. It was merely a gratuity.
Some might say it's just a tip.

Speaker 2 You know, the analogy works here too, because they insist this leveraging money for access and influence doesn't fuck our politics when we know it fucks our politics.

Speaker 2 Anyways, the Swiss economy minister rejected criticism of the deal and insisted,

Speaker 2 We haven't sold our soul to the devil. Well, that's crazy.

Speaker 2 And I do have to say, this might have been another thing that one of us manifested. And this time I am looking at you, Emma.
Me. So

Speaker 2 you, let's play this clip from our live show at CrookedCon in DC.

Speaker 2 Which item has Trump specifically announced he is not tariffing?

Speaker 2 one,

Speaker 2 Coca-Cola products or ingredients.

Speaker 2 Two,

Speaker 2 gold.

Speaker 2 Three, computer chips. Four, silver.

Speaker 2 Gold.

Speaker 2 First of all, I really like this voice you're doing, Leah.

Speaker 2 Thank you. I'm going with Coca-Cola.
He doesn't sound like me at all. He's a big Diet Coke drinker.
I'm going with Coca-Cola products. I'm going with gold.

Speaker 4 Melissa wins.

Speaker 2 Kate, start thinking of your compliments.

Speaker 1 The gold, Kate. Everything in Mar-a-Lago is covered in gold.

Speaker 2 But he does drink, I think, dyed Coke. Anyway, you're right.
Gold was clearly right there.

Speaker 2 You called it.

Speaker 1 I, I'm sorry. I, this was not a manifestation.
This man has been on gold for some time. Like, I did not do this.

Speaker 2 Like, the Swiss were merely reading the room, literally reading the room, probably the Oval Office. That's, that's fair.

Speaker 2 So I can't think of a transition here. So I'm just going to go back to we have another update from Department of Injustice or from an artist who was formerly at the Department of Injustice.

Speaker 2 And this is the additional reporting on the administration's bagman slash turned federal judge slash cripkeeper slash dark lord of the third circuit.

Speaker 2 See ya Bove, who it turns out.

Speaker 2 who it turns out isn't just a bagman, but a body bag man. So as it happens, while Bove was at DOJ, he was a busy, busy man.

Speaker 2 Not only was he involved in plotting to defy court orders encouraging administration officials to tell the courts you if they attempted to stop the expulsions to the salvadoran torture prison and strong arming doj and going on a rampage at the southern district of new york u.s attorney's office to try to use the criminal charges against new york city mayor eric adams as leverage to get the mayor to support the administration's immigration enforcement efforts he was also according to npr involved in the administration's murders and executions on the high seas.

Speaker 2 The lethal strikes the administration has been carrying out on people it labels narco-traffickers.

Speaker 2 So as NPR reported, quote, at a Justice Department conference in February, then Acting Deputy Attorney General Emile Bove told the department's top drug prosecutors that the Trump administration wasn't interested in interdicting suspected drug vessels at sea anymore.

Speaker 2 Instead, he said, the U.S. should just sink the boats, which, to be clear, is, you know, literally piracy and also murder.

Speaker 1 I don't mean to make light of this, but do you remember remember the SNL weekend update skit when Bo and Yang pretended to be the iceberg that sank the Titanic?

Speaker 2 I do. Because that is how I connect it to the conversation.
Yeah, they're both.

Speaker 2 Just sink the boats. Just sink the boats.
I feel like Emile Bove is literally the iceberg. He's like,

Speaker 1 forget the black robe. You don't need Judge's robe.

Speaker 2 You need like a white spangled outfit and a big thing on your head. Okay.
That's how I will

Speaker 2 life tenured Judge Bovet.

Speaker 1 Okay, switching gears, let's talk about vanilla ice.

Speaker 1 Not the famed wrapper of the 1990s, but the ice enforcement sweeps that are happening all over the country.

Speaker 1 So, the administration has decided to direct its ICE enforcement efforts to the Queen City, Charlotte, North Carolina. And the impact of those raids has already been significant.

Speaker 1 According to reports on Monday, November 17th, Charlotte Mecklenburg Schools reported 15% of its students were absent from school, and area businesses have noted noted a downturn in business because so many people are staying home to avoid ICE.

Speaker 1 All of this sounds like a solid plan to jumpstart the economy and leave no child behind.

Speaker 1 In other administration news, in Memphis, Tennessee, where there has been an ongoing effort to deploy the National Guard, a federal judge stepped in to block said federalization and deployment of the National Guard in that city.

Speaker 2 And in more federal district court action, although here involving DHS rather than than the National Guard, Judge Sarah Ellis in Chicago, who we've now mentioned a couple of times on this show, released her opinion in the case involving challenges to DHS abuses in the city of Chicago.

Speaker 2 So the Seventh Circuit had actually already stayed an injunction that she issued, finding that injunction over broad and scheduling arguments in the Seventh Circuit for December.

Speaker 2 But Ellis subsequently released her 233 plus page banger explaining her decision. And it is

Speaker 2 just a pretty crystal clear statement that we definitively cannot trust anything that comes out of DHS's mouth because we are not done with Lily Allen's West End Girl.

Speaker 2 The opinion describes Greg Buffino, who is the senior Border Patrol official who is handling the efforts in Chicago, although I think he's actually now moved on to North Carolina, but has been a key high-level coordinator of

Speaker 2 these aggressive enforcement efforts. And Ellis describes him as not credible, noting that his answers to the court's questions are, quote, cute or outright lies.

Speaker 2 The opinion also provides numerous examples of the government's accounts of particular incidents involving clashes between DHS officials and civilians as being flatly contradicted by body camera footage.

Speaker 2 Also notes that DHS agents have used chat GPT to generate incident reports. I mean, it is just like a wild indictment of essentially the candor and integrity of DHS as an entity.

Speaker 2 And you know, that is who is terrorizing American cities across the country.

Speaker 2 And relatedly, it's been reported that agencies within DHS, including ICE, CBP, plan to target for immigration enforcement, Spanish-speaking churches across the country during the upcoming holiday season between Thanksgiving and Christmas.

Speaker 2 Like, we have found the Christmas Adventurers Club. Greg Bovino is lockjaw, and we have a war on Christmas now.

Speaker 1 What would Jesus do indeed?

Speaker 1 If the prospect of ICE raiding churches during the festive season doesn't break your resolve, don't worry. This might actually do the trick.

Speaker 1 Last week, in an Oval Office meeting with the Saudi prince Mohammed bin Salman, also known as MBS, a reporter asked the president about the murder of journalist Jamal Khashoggi.

Speaker 1 Khashoggi, a Saudi dissident who often criticized the Saudi royal family and the Saudi government, was murdered in Istanbul in 2018, allegedly at the direction of MBS.

Speaker 1 And the president of the United States responded to that question about Khashoggi's murder in the following way.

Speaker 17 You're mentioning somebody that was extremely controversial. A lot of people didn't like that gentleman that you're talking about.

Speaker 17 Whether you like him or didn't like him, things happened, but he knew nothing about it. And we can leave it at that.
You don't have to embarrass our guests by asking a question like that.

Speaker 2 So by things,

Speaker 2 the president means being tortured and dismembered with a bone saw, which, you know, his characterization, sympathetic characterization checks out given that this week the president did call for democratic lawmakers to be executed.

Speaker 2 You know, know, and as far as being controversial, as we said, Khashoggi committed the cardinal sin of expressing views critical of MBS, Saudi royal family, Saudi Arabia government that MBS didn't like.

Speaker 1 Wasn't sure whether this was worth mentioning here for its connections to free speech or just general ongoing interest in misogyny, but I'm just going to say it.

Speaker 1 There was also an episode last week when a female journalist from The Guardian asked Donald Trump about Lefeb Epstein, and he told her to quote unquote unquote quiet, piggy.

Speaker 2 The bar is in hell, as you say often, and is correct.

Speaker 2 But can I go back for a second to what Leah just said about the Democratic lawmakers?

Speaker 2 So last Thursday, the president accused six Democratic members of Congress of, quote, seditious behavior, punishable by death. He did this on Truth Social, after the six released a video advising U.S.

Speaker 2 service members that they have a right to refuse to obey unlawful commands.

Speaker 2 The military code of justice provides that a member of the armed services can refuse to follow a, quote, patently illegal order, such as one that directs the commission of a crime or one that goes against the U.S.

Speaker 2 Constitution, which service members swear to uphold when they join the military. So some would actually go even further and

Speaker 2 explain that service members don't only have a right, but actually have an obligation to refuse to follow an illegal order.

Speaker 2 That is the totally uncontroversial position that these members of Congress, former members of the military themselves, were communicating. And per usual, the president decided to truth through this.

Speaker 2 So he posted that the lawmakers should, quote, be arrested and put on trial and that an example must be set.

Speaker 2 He also reposted a post from one of his followers urging that the lawmakers be hanged as quote, George Washington would. So just two things.
One, Andrew Johnson was impeached for much less.

Speaker 2 I mean, he wasn't removed from office, but he, you know, his political career was essentially over.

Speaker 2 And two, this was a chilling set of events, I think would have been on any week, but on the week that Trump, you know, lavished attention and praise on MBS in the Oval Office, it really made my blood run cold.

Speaker 2 That's it for the news. And speaking of men's, after this quick break, we will be back with Kate's conversation with Professor Jill Hasday about Hasday's new book, We the Men.

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Speaker 2 I am your loan host for this segment, Kate Shaw, but it is not just me because I am happy to be joined by University of Minnesota law professor Jill Haste to discuss her new book, We the Men, How Forgetting Women's Struggles for Equality Perpetuates Inequality.

Speaker 2 Jill, welcome to Strict Scrutiny.

Speaker 4 Thanks so much for having me.

Speaker 2 Okay, I want to ask a couple of general questions about the book and then also try to connect the book to the present moment, which is something I thought about constantly as I read it.

Speaker 2 It unearths many of the ways, and some are familiar and some are far less known, that women's struggles get written out of our collective history. So why write this book in the present moment?

Speaker 2 Was there a specific incident or pattern you observed that motivated this desire to do this deep dive, in particular into the historical record?

Speaker 4 I've been thinking about the seeds of this book since I went to law school, and I'd be sitting in these classes and the professors who were with two exceptions, men, would tell stories about how the law has treated people over time and it really struck me that these stories were actually about how the law has treated men and either women didn't appear in these stories or they were footnotes to be mentioned as an aside later and it just occurred to me women are about half the population We're not a footnote or an aside.

Speaker 4 There's no story about the law that doesn't include women as much as men. So I always had this book kind of percolating in the background.

Speaker 4 And then what really pushed me to write it is the 250th anniversary of the United States is coming up in 2026.

Speaker 4 In every commemoration America has ever had, women have always had to claw their way in from the outside. And I thought, wouldn't it be nice to write this book before that commemoration takes place?

Speaker 2 You open the book with Alice Paul's 1922 predictions about women's future in politics and society.

Speaker 2 When the Washington Times asked Paul to predict how modern feminism would shape the course of history over the next hundred years, she offered this series of pretty optimistic forecasts, including that there would be a woman president of the United States in less than a century.

Speaker 2 And I have to say, that one hurt. She was so close to getting it exactly right, but just not quite there.

Speaker 2 So, you know, you note that, quote, in sum, she was hoping and working for a world where women participate equally in the control of government, of family, and of industry.

Speaker 2 So, curious why you begin with that anecdote. And,

Speaker 2 you know,

Speaker 2 how do you think Paul's optimism contrasts with the realities that you document today?

Speaker 4 So I began with that quote, I guess for at least two reasons. One, because the timing is so perfect.
As you said, Alice Paul leads the more militant wing of the woman's suffrage movement.

Speaker 4 She invents the idea of picketing in front of the White House, which now seems like old hat, but she literally invents it.

Speaker 4 And she gets the 19th Amendment, which prohibits sex-based denials of the vote in 1920. She's only 35 years old.
And as you can imagine, she thinks she can do anything.

Speaker 4 Look what she managed to do against ferocious opposition. Like women are literally being dragged in the street for picketing for the vote.

Speaker 4 And so at the end of 1922, they ask her what's the world going to look like in 2023. And as you say, she imagines

Speaker 4 In some ways, actually, a pretty modest agenda, that there'll be at least one woman president in 100 years, that half of Congress will be female, and that women will have equal opportunities across social, economic, political dimensions.

Speaker 4 And it just struck me that this was a great way, in addition to the timing being perfect, this was just a great way of showing, it's not that women haven't made progress, but how far we have to go.

Speaker 4 Literally none of her goals have been met. And in fact, as I talk about in the book, there was this 2019 poll where they asked people, would your neighbors be comfortable with a female president?

Speaker 4 The reason they asked that is because people don't like to admit their own biases, but when you ask about their neighbors, they'll be more forthcoming.

Speaker 4 Only a third of Americans said their neighbors would be comfortable with a female president.

Speaker 4 So I just think it's a good reminder that, yeah, there's been progress, but much less than you might hope for.

Speaker 2 And I should say that for people for whom these stories about Alice Paul are not familiar, the wonderful Broadway musical Suffs

Speaker 2 depicts both by Shana Taub depicts Paul and, you know, many of her fellow travelers, in particular, picketing outside the White House, being arrested, facing brutality. It's closed on Broadway.

Speaker 2 I'm not sure what kind of afterlife it's going to have in other cities, but it really is a wonderful effort to do, I think, kind of theatrically and musically a lot of what you are doing in the book, which is remedy some of the historical omissions and elisions that are so prevalent.

Speaker 2 So the book outlines, I think, what you call two ways of forgetting about women that predominate in America's stories about itself. So one is erasure and the other is distortion.

Speaker 2 So can you just give a top-line explanation of how you use these concepts and how they sort of manifest in our collective memory?

Speaker 4 The book, as you say, talks about two kinds of forgetting. One is just leaving women out of the story, and that's what I mean by erasure.
Some examples are concrete.

Speaker 4 If you imagine walking down a public park to a government building and you see a statue without knowing much about you, I suspect that most people in their minds envisioned a man maybe on horseback.

Speaker 4 If you think about the name above the government building, you're thinking of a man's name. And that's because that's how commemorations are, even if you look at commemorations in the last four years.

Speaker 4 And in some ways, I actually wasn't too surprised to find that. I kind of expected that.
What I was surprised was how many times women are left out of the story, even when the story is about women.

Speaker 4 In the book, I call it spontaneous enlightenment stories. And if you've ever heard a textbook say, men gave women the vote, that's an example of a spontaneous enlightenment story.
It's not true.

Speaker 4 First, all the 19th Amendment does is end sex-based vote denial. So plenty of women, especially women of color, still don't have the vote after 1920.
But also, men don't give women anything.

Speaker 4 It's a multi-generational, literally bloody battle. So that's an example of leaving women out of the story, even when it's about women.
So that's what I mean by erasure. And the other is distortion.

Speaker 4 And distortion is basically leaving out the work America still has to do.

Speaker 4 Anyone who lives in 21st century America, I suspect you've encountered someone who announces or assumes the battle days, days, the sexist battle days, are behind us.

Speaker 4 But what I was surprised to learn is just how early those stories start. Like I literally have textbooks from before the 19th Amendment.

Speaker 4 So when women are denied the vote in most states of the United States, saying men and women are equal under the law. And it's just, you know, it's stunning.

Speaker 4 And part of the point of the book is to show how these statements, they're not just kind of like rosy, they actually function to justify the status quo. There's nothing more to fight about.

Speaker 4 Women already have enough.

Speaker 2 Yeah. Yeah, I'll say that you have a lot of these examples.
And I was reminded by a lot of them of this passage in the civil rights cases, which con law students will be familiar with.

Speaker 2 So it's the 1875 case in which the Supreme Court really undermines the full force of the 14th Amendment and announces this state action requirement.

Speaker 2 But there's language in the opinion, you know, that basically a decade post-slavery, racial equality has already been achieved.

Speaker 2 And there's this language that basically says, you know, a man has emerged from slavery and has shaken off the, you know, inseparable sort of concomitants of that state.

Speaker 2 So there has to be some stage when he takes the rank of a mere citizen and ceases to be the special favorite of the law. So that's language from the opinion.

Speaker 2 And it's like 10 years post actual enslavement. The court is saying, that's all behind us.
Like, let's move on.

Speaker 2 And decades before there was even formal access to the ballot for women, at least for white women, right? You already have all of these men saying sex equality has been achieved.

Speaker 2 Like it's really pretty stunning.

Speaker 2 So I actually want to ask you to talk about one specific example of the erasure phenomenon that you talk about. This one I thought was really interesting.

Speaker 2 So you compare the Supreme Court's infamous decision in Lochner, which is from 1905, with its way less known, but also infamous decision in Mueller versus Oregon from 1908.

Speaker 2 And you show that these are sort of equally shoddily reasoned opinions. Mueller has arguably more persistent consequences, but has significantly less notoriety.

Speaker 2 So, you write, quote, Mueller shared Lochner's penchant for constitutionalizing ideology with the justices using their constitutional decision-making to impose their personal views about how the world should work.

Speaker 2 We kind of know that about Lochner and its sort of commitment to a laissez-faire vision of kind of the role of government in the economy.

Speaker 2 But you have Mueller constitutionalizing this notion that women's primary roles and responsibilities are domestic.

Speaker 2 So, can you talk about the different places of these two opinions in the constitutional canon and then discuss why Mueller's neglect from contemporary discourse is so troubling?

Speaker 2 And I'm gonna say one more thing, which is students are familiar with the idea of kind of Lochnerism, but you coined this term Muellerism.

Speaker 2 So I guess I'd like to hear kind of what you're capturing with that term and how far away we are from incorporating it into our general legal vernacular.

Speaker 4 Thanks for that question.

Speaker 4 Okay, so just for anyone who hasn't gone to law school, one of the worst insults one lawyer or one judge can lob against the other is to say that they are guilty of Lochnerism.

Speaker 4 And that is after this 1905 case where the Supreme Court held that a 10-hour workday for male bakers was unconstitutional on the idea that the Constitution protected a freedom of contract conceived in their mind as basically the freedom to work yourself to death.

Speaker 4 And for instance, one of the highlights of my own academic career is I once was at a workshop. I gave someone what I thought was constructive criticism.
They accused me of Lochnerism.

Speaker 4 I accused them of Lochnerism right back. You know, this is like a very well-known term.
And it kind of stands for the idea of judges constitutionalizing their own ideological abuse.

Speaker 4 So three years after Lochner, there's another case that comes before the court, Mullerby, Oregon.

Speaker 4 And the question in that case is, The court has already held it's an unconstitutional constraint on autonomy to have a limited workday for men. What about women?

Speaker 4 And the court goes in the opposite direction, in some ways in the opposite direction for women and says, no, you can limit women's hours.

Speaker 4 But the ultimate approach is the same, which is the court is committed to the idea that women's primary responsibilities are in the home, and it's going to reason on that ideological basis.

Speaker 4 As you said, in some ways, Mueller has a much bigger impact than Lochner does. Lochner is overturned in 1937.
In contrast, Mueller remains good law into the 1970s. There's a federal survey in 1969.

Speaker 4 A majority of states exclude women entirely from some jobs, limit women's hours, which ends up just keeping them in the pink collar ghetto.

Speaker 4 And even after Mueller is overturned, in a footnote, the court continues to reason on the idea that women's ultimate responsibilities are domestic.

Speaker 4 For instance, Dobbs overturning Roe could be an example of Muellerism. But what's so striking to me is that Muellerism isn't a term, right? This is just me inventing it.
No one talks about it.

Speaker 4 One way that constitutional law professors often write and they often teach in their classes is, let's talk about what are the most important cases the Supreme Court has ever decided in constitutional law and what are the most terrible.

Speaker 4 And one thing that's really striking, and actually another motivation for writing the book, is none of those cases on the worst or the greatest list are about women.

Speaker 4 Women simply do not exist as a maker of important cases. And that's just remarkable to me.

Speaker 4 I don't think there's that many great cases about women, but a lot of the Supreme Court's worst decisions are about women. And certainly that list could be expanded very easily.

Speaker 2 Yeah, it's such an interesting point. So, you know, Mueller, I think, you know, it's sort of a complicated story because I think that there is this rationale, which is that it's not as purely sort of

Speaker 2 kind of villainous, you know, an incident of the Supreme Court's intervention, because it's almost like a wedge to break Lochnerism to sort of show there are justifications, even if those are incorrect ones that do, you know, permit legislatures to impose sort of limitations in the service of protecting workers and things like that.

Speaker 2 But you're right to say that cases like Bradwell versus Illinois, which has logic that is

Speaker 2 as ideologically driven, in particular in Justice Bradley's concurrence that holds that states can deny women access to the bar.

Speaker 2 It's not really on people's like top five or 10 worst Supreme Court decisions lists. And it really should be.
When I say most people's lists, I'm talking primarily about male academics.

Speaker 2 But I think you're right to sort of note those omissions.

Speaker 2 Also on the kind of erasure point, you mentioned sort of statues before. So the book spends quite a bit of time cataloging ways in which decisions around public memory and commemorative honors, right?

Speaker 2 Things like monuments and courthouses and museums and stamps. erase women.

Speaker 2 And you offer a lot of, I think, really persuasive data about just like how wildly absent women are from many of those spaces and honors.

Speaker 2 But I'm curious to actually hear you talk talk about how much this matters, right? So like on the one hand, this sort of commemoration is largely symbolic.

Speaker 2 And there is a critique, which I think, you know, has some force in some contexts, which is that in recent years, many on the left have focused on efforts to remedy symbolic erasures.

Speaker 2 And that I think is true when we're talking about both sex and race.

Speaker 2 but to the neglect of a focus on more material conditions, right, of inequality and subordination. So I guess whether or not you think that critique is forceful,

Speaker 2 I actually think it is very telling that when the second Trump administration came into office, they focused immediately, and this was especially striking in the military, although it happened in other places too, on undoing efforts at improving representation and inclusion.

Speaker 2 So they definitely think it matters. So I'm just curious to get your reaction to all of that.

Speaker 4 Okay, so. Do I think our agenda should be only commemorations all the time? No, but that's a parody.
Why are commemorations so hard fought?

Speaker 4 I think one myth we have is there's so few commemorations of women just because no one thought about it. It's inertia.
That's just not true.

Speaker 4 There's so few commemorations of women because every time women try for commemorations, which they have been for over a century and a half, there's a lot of pushback.

Speaker 4 Commemorations are so hard fought because commemorating the past is really about understanding the present and imagining the future. And that's one thing Donald Trump and I agree on.

Speaker 4 He knows the importance of commemorations. For instance, in my book, one of the stories I tell is he opposed the Obama administration plan to put Harriet Tubman on the $20 bill immediately.

Speaker 4 At the time in 2016, he was running for the Republican nomination. He immediately denounces it as political correctness.

Speaker 4 He says later to an age, he doesn't look like the kind of person who belongs there, which I think is both about what kind of person he thinks belongs on the $20 bill and also he probably doesn't find her physically attractive, just this being Donald Trump.

Speaker 4 I think it's very striking that how heavily the Trump administration has pushed commemorations. So there's a lot of examples.

Speaker 4 Again, one of the first things the Trump administration did is they set up their committee for the 2026 commemoration, the 250th anniversary of the United States. Donald Trump himself is chair.

Speaker 4 If you look at some of the things they've been doing, the military is a great example, how they're rewriting history.

Speaker 4 The National Park Service took Harriet Tubman off. There was a large picture of Harriet Tubman when explaining the Underground Railroad.

Speaker 4 She's probably the most famous conductor of the Underground Railroad, which is just the term used to describe the system of kind of safe houses and guides that helped people escaping from slavery get to the north and then maybe to Canada.

Speaker 4 They took her picture out and placed her kind of in like a montage picture.

Speaker 4 And they also de-emphasized slavery, which is bizarre because exactly why are they underground if they're not escaping from slavery.

Speaker 4 But those it's just an example of commemorating the past is about the future. Why are they so anxious to take out examples? Because they're trying to say the military should be more white and male.

Speaker 4 I mean, I don't think it's a secret.

Speaker 1 And

Speaker 4 I think that's why commemorations are so,

Speaker 4 that's why they are so contested.

Speaker 4 And we've seen a lot of, I think that's very top of mind for people when we think about Confederate memorials, but it's actually also true for memorialization of women that

Speaker 4 that's why they're fought about. So I guess another way I would say it is it's not commemorations all the time, but it's also it's not either or.
They're kind of, it's kind of the same thing, right?

Speaker 4 Fighting about commemorations or having commemorations is another opportunity to talk about how the present and future should be.

Speaker 4 So for instance, in the book, one of the commemorations I propose is an equal pay clock.

Speaker 4 So anyone who's ever been in New York, there's this national debt clock and you can see the numbers going up and it's very alarming.

Speaker 4 You know, it's good commemoration so i'd like maybe in times square an equal pay clock and of course the numbers won't move but like we can rotate between different groups of women so it catches your eye but imagine the pay gap between men and women has hardly switched in the last 20 years it was about 75 cents um 20 years ago and now it's about 82 cents and when you include race the numbers are even starker right when you include like people are underpaid for being part-time it get you know so imagine going through all of those disparities, women as a whole, different subgroups of women, et cetera, all the time.

Speaker 4 I think that would be just extremely powerful.

Speaker 2 So, we've been talking about different dimensions of erasure. Let's now shift to the second form of forgetting that you address, which is distortion.

Speaker 2 So, you criticize a long history of what you call self-contradictory victory announcements.

Speaker 2 So, these are these announcements, like we were just talking about, that sex equality has been achieved, full stop often, and then a pairing of that announcement with often substantive efforts to roll back equality.

Speaker 2 As you have said, it is really striking how early and how often you see these kinds of proclamations, often paired with substantive rollbacks, happening. So can you say a little bit more about this?

Speaker 2 And maybe, you know, you were talking about this happening even before the adoption of the 19th Amendment. Can you offer some specific examples?

Speaker 4 So that's exactly right. Self-contradictory victory announcement is you're declaring victory.
Women's equality has been achieved at the exact moment you're denying victory.

Speaker 4 That's why it's self-contradictory. So I'll just do an example that springs to mind.
In 1948, Gwendolyn Hoyt is convicted of second-degree murder for killing her husband with a baseball bat.

Speaker 4 She's convicted by an all-white male jury because Florida only puts white men on the only puts white people on the jury.

Speaker 4 And for women, women have to opt into the jury roles, which most people of any sex don't want to opt in.

Speaker 4 And even if women do opt in, Florida will put like a max of 10 in any counting's jury roll that has like 10,000 men.

Speaker 4 So basically it's all male juries, you know, maybe the occasional one has one woman. And she appeals to the Supreme Court and she says, I was denied a jury of my peers.

Speaker 4 Women would have been more sympathetic. Her husband was an adulterer.
This is the era before cell phone. So his girlfriends are literally calling the house phone and asking for him.

Speaker 4 She has epilepsy and she claims basically I had a mental break. And the baseball bat was right there.
And I had this moment of temporary insanity. Women would have been more sympathetic.

Speaker 4 Men obviously don't like the idea of women beating their adulterous husbands with baseball bats.

Speaker 4 And the Supreme Court rejects her claim, saying, an example of Mueller is: women's responsibilities are domestic. The state can prioritize women at the home.

Speaker 4 But at the same moment, it says that it keeps women, it treats women as inessential jurors and denies female defendants, juries, and appears. It says women have enlightened emancipation.

Speaker 4 Again, who's been enlightened? It's the male lawmakers. There's no sense that women push for this, but it's over.
And I think Hoyt is a great example.

Speaker 4 There's a lot, but it's a great example of simultaneously declaring victory. There's been enlightened emancipation.
Women didn't have to fight for it. It was natural.

Speaker 4 Men gave it to them in their wisdom. And why are we declaring that there's so much equality? Because we know,

Speaker 4 confident in this sex equality being achieved, we know we can deny you what you want.

Speaker 4 So they preserve male jury systems. And one thing I show in the book is that this is just a strategy.

Speaker 4 As you mentioned earlier, I could do a similar chapter just about race, but I think I've really revealed in this book, this is just a strategy by which inequality is achieved.

Speaker 4 You declare victory as a way of kind of rationalizing, not actually extending equal rights.

Speaker 2 And I can't now remember if it's Hoyt or one of the other cases you talk about in the same chapter, but there are also some mentions, I think, both in judicial opinions and the broader discourse discourse, of not only sort of women having achieved equality or American women having achieved equality, but American women alone amongst the women of the world having achieved equality.

Speaker 2 And so there's also this kind of comparative claim that women in the United States have, you know, achieved something that women elsewhere have not.

Speaker 2 And therefore, whatever specific demands are being made are unjustified, unnecessary, maybe unreasonable.

Speaker 2 And also there is this sort of undertone of this kind of the reason that this equality has been achieved is this beneficent gift from men.

Speaker 4 Yes. And you see that in newspapers, you see that in judicial opinions, you see that in anti-feminist literature, like Phyllis Schlaffley loves to say American women are more liberated.

Speaker 4 There's a lot of things you can say. One thing I'll say about that is it's objectively false.
Women are not in the America, that's not the earliest victory for women's suffrage.

Speaker 4 You know, New Zealand gets it generations earlier, but that's part of their claim.

Speaker 4 And I think, as you said, it kind of enhances the idea that American men are particularly wise and beneficent, but also American women particularly lack a grounds for complaint.

Speaker 4 There's even an undercurrent of like, if we gave what you're asking for, it would actually be too much. Right.
You know, you already have equality. And if you get this, it would actually be too much.

Speaker 4 We'd be going too far.

Speaker 2 You mentioned Phyllis Schlafly, and you devote an entire chapter to demonstrating how anti-feminists have capitalized on America's misremembered past, as you say.

Speaker 2 So can you talk a little bit about parallels you see between early, even anti-suffrage sort of rhetoric and then modern anti-feminist movements, either more modern, like sort of the anti-ERA movement headed by Phyllis Schlafly, or sort of even more contemporary kind of anti-feminism?

Speaker 2 Sort of how does that effort capitalize on claims about women having already achieved full equality?

Speaker 4 So I think Phyllis

Speaker 4 who led the anti-ERA movement in the 70s and 80s, really is a pivotal figure.

Speaker 4 She takes ideas that were in the anti-suffrage movement and she really refines them in a way that I think the half century of anti-feminists have just followed her playbook.

Speaker 4 Her two central arguments against the Equal Rights Amendment were one, the Equal Rights Amendment was unnecessary because America had already left discrimination against women behind.

Speaker 4 And two, the ERA was menacing because it would take women out of the home and cause a variety of other horrors like same-sex marriage. You had a lot of things.

Speaker 4 And that really is the anti-feminist playbook to date.

Speaker 4 I have many examples in the book of how anti-feminists opposing government support for child care or abortion rights or affirmative action or modern efforts to ratify the ERA basically make those two claims.

Speaker 4 Whatever you're asking for is unnecessary, equality has been achieved, and it would be menacing because it would take women out of the home.

Speaker 4 And I think one of the reasons the strategy works so well is that Americans are primed to some, even if only subconsciously, accept that narrative of progress because we've literally read it in textbooks.

Speaker 4 I have a lot of examples of textbooks. You know, that's just something we hear.
So she strives very openly for a position in the Ronald Reagan administration and he doesn't give it to her.

Speaker 4 It's, you know, I can't have a whole,

Speaker 4 I'm not sure, it's hard to say definitively why, but I will say that almost everyone in the Reagan administration is a white man.

Speaker 4 But like, there's a way in which you can't quite admit that because her whole thing is there's no sex discrimination.

Speaker 2 Anyway. So Schlafly is a figure that people are probably at least somewhat familiar with.
We talked about Alice Paul.

Speaker 2 I just want to ask, you obviously did deep historical research for the book, and you mentioned having uncovered stories that you actually never knew about despite spending decades kind of working in this field.

Speaker 2 And obviously, I also felt like I learned a ton.

Speaker 2 So I'm curious if there is a story of like a particular woman or a legal fight that wasn't something that you had been familiar with previously and that has particularly stayed with you.

Speaker 4 Yeah, I have a favorite.

Speaker 4 So yeah, so one reason I think this book is actually really fun is there are so many remarkable women who I had never heard of despite doing more than two decades of work in this field and who are just, they're just very impressive.

Speaker 4 Like despite odds, they keep fighting. So let me tell the story of Anne Davido.

Speaker 4 In 1945, Michigan passed what was known as an anti-barmaid law that banned women from serving as bartenders in larger cities unless the woman was the wife or daughter of the male bar owner.

Speaker 4 This law was pushed through by the all-male bartenders union, which liked to call women barmaids to distinguish them from male bartenders.

Speaker 4 And in public, they often said that they were protecting women from the immorality of the bars. But that argument never quite made sense.

Speaker 4 Among other things, women could be cocktail waitresses, which is definitely more vulnerable to violence and harassment by customers.

Speaker 4 And in their private internal union documents, which I looked at for the book, it's very clear that economics drives it.

Speaker 4 Keeping women out of bartending helps protect male jobs and keep the wages high.

Speaker 4 And they know actually a lot of employers would like to hire women because the women are kept out of the union and they can pay them less. Anyway, so they push it through

Speaker 4 and four women want to challenge the law. Two of them are bartenders.
Two of them own a bar.

Speaker 4 And then one of the bar owners is actually the mother of one of the bartenders because one of the perversities of the law is that if you own a bar and you're a woman, you can't bartend and you can't even have your daughter bartend for you.

Speaker 4 Anne Davido is a pioneering attorney, feminist attorney in Detroit.

Speaker 4 She left school to support her brother through law school. And then to his credit, when he becomes a lawyer, he supports her so she can go to law school.
They become a brother-sister law firm.

Speaker 4 I just love it.

Speaker 4 The odds are against her. At this point, the Supreme Court has upheld dozens of restrictions on female labor.
It's never struck anyone down, but she persists.

Speaker 4 And she gets to the Supreme Court in 1948 in a case called Goss would be cleared.

Speaker 4 In that era, the Supreme Court doesn't record oral arguments, so we don't know exactly what's said, but she gives an interview years later.

Speaker 4 And she reports that also in that era, you you don't have an assigned time when your case begins. They give you a day and you just kind of sit there waiting.
So she's waiting. There's the lunch break.

Speaker 4 After the lunch, the solicitor general for the state of Michigan, who's defending the law, comes in with the justices, i.e., she thinks the fix is in. He's been to talk to them over lunch.

Speaker 4 Sure enough, they hardly have any questions for him.

Speaker 4 Then when she goes to give her argument, Felix Frankfurter, who's known as a great liberal, harasses her and heckles her from the bench while telling her that the days of chivalry aren't over.

Speaker 4 By the way, a great example of a self-contradictory victory announcement because he's saying, you know, we're living in this great era. Women are treated with respect as he's harassing her.

Speaker 4 She loses. And he writes an extremely disrespectful opinion that's less than three pages long.
He says, this is a rare case where to state the question is to answer it. Can women be excluded?

Speaker 4 Of course they can. He includes another self-contradictory victory announcement.

Speaker 4 He says women basically have all the freedoms and all the vices of men, so we don't don't have to give them access to this job. Eventually she gets the last laugh, though.

Speaker 4 The Supreme Court overturns Gossard in 1976. But that's actually,

Speaker 4 she's not my favorite because eventually she wins. She's my favorite because she tries and she's willing to go forward.

Speaker 4 And I think that, you know, we're in a moment, we're not in a feminist moment in American history right now.

Speaker 4 And the question is how to keep going when you probably won't win this day or this week, but how to keep mobilizing over the long term.

Speaker 2 You do end the book with this call for hope and renewed engagement.

Speaker 2 So I'm curious where you see the most potential for change right now, even in light of that obviously sober and somewhat pessimistic framing with respect to the actual current moment we're living in.

Speaker 4 I'm actually extremely optimistic long term. I think in part because,

Speaker 2 well, okay, let me back up.

Speaker 4 So I started the book before Roe was overturned.

Speaker 4 And in my initial introduction, I said something like, you know, women definitely have more rights and opportunities now than they had a half century ago, but there's still more work to do.

Speaker 4 And I initially thought the book was going to be along the lines of there's been progress, but it's too slow, too small.

Speaker 4 And Dobbs, the case overturning Rowe, really focused my attention on regression and the threat of regression and how many times women's rights have been rolled back.

Speaker 4 But what's very striking to me is how women pushed through. They kept fighting because that's really

Speaker 4 the only alternative. I talk about a lot of arenas where we still need reform and to keep fighting, not only teaching, commemoration, political representation.
There's a lot of legislative work to do.

Speaker 4 Maybe I think the most important is everyday life.

Speaker 4 One reason these stories have so much power is because people believe them or kind of accept them unconsciously.

Speaker 4 And I hope that reading the book or just listening to this conversation can help people kind of recognize it.

Speaker 4 So if you see someone or you read an article that is declaring victory while justifying an unequal present, I think it would be just, that's the first step. Like say, look what they're doing.

Speaker 4 It's declaring victory as a way of justifying what he's doing.

Speaker 4 Every advance women have ever achieved has taken generations against ferocious, often violent opposition. That's just the reality of the situation.

Speaker 4 So I'm not minimizing the position we're in right now as a nation. I think we are in a perilous position, but

Speaker 4 I think we can survive.

Speaker 2 The book, once again, is We the Men, How Forgetting Women's Struggles for Equality Perpetuates Inequality. It was out earlier this year, and it is available wherever you get your books.

Speaker 2 Jill Hasdei, thank you so much for joining me today.

Speaker 4 Thanks for having me. I appreciate it.

Speaker 2 Thanks again to Professor Jill Hasday for that conversation. Let us end, as always, with our favorite things.

Speaker 2 So we wanted to give a shout shout out to Allie from James for the civil rights work that Allie has been doing as part of the University of Washington School of Laws Civil Rights Clinic under Professor Owens.

Speaker 2 We hear how hard you've been working and on such important work. So thank you.
A couple quick things.

Speaker 2 Rosalia, who's a Spanish singer-songwriter, has a new album and people have known her for a long time. She's new to me and she's amazing.
So I'm discovering her back catalog as well as the new album.

Speaker 2 Emily Baslon and Rachel Poser had a, I think, must-read piece in the Times compiling first-person accounts of the destruction of the Department of Justice, some on the record, some anonymous accounts.

Speaker 2 I read the novel Wild Dark Shore on Leah's recommendation. I loved it.
And I started the nonfiction book, Gods of New York, kind of about New York in the 1980s.

Speaker 2 The rise of Donald Trump is part of it, although there hasn't been much Trump yet, but the book is really fantastic.

Speaker 2 I have a few recs. One is Hillary Duff has a new single, Mature, and it is amazing.

Speaker 2 Second is Got the News.

Speaker 1 Wait, can we talk about it for one second? Yeah.

Speaker 1 Who is it about? So, some have speculated it's about Leo DiCaprio. Maybe there's a discussion of the basket, but I don't recall her dating him.
I do recall her dating Joel Madden.

Speaker 2 Well, also, she says, like Leo with the Scorpio touch. So it's not about Leo.

Speaker 1 Oh, she's so good because I actually thought she was just sort of making like weird astrological references. I had, yeah, okay, that's good.
That's good. I thought she was being very deep there.

Speaker 1 It's Joel Madden then.

Speaker 2 I mean, that is definitely a possibility.

Speaker 2 But this

Speaker 2 song is amazing. It is a bop and it is exceptionally topical given all of the things we have been talking about.

Speaker 2 Okay, so second recommendation is: we receive the news that at this year's Pop-Tarts Bowl, there will be six edible mascots, three on Team Sprinkles, and three on Team Swirls.

Speaker 2 And we can only assume that at least one of them will have to die in the toaster. I love this pop.
What the fuck is the Pop-Tarts Bowl? Really? Oh my gosh, Kate, you missed this.

Speaker 2 Anyways,

Speaker 2 go Google Pop-Tart Bowl,

Speaker 2 the like death of Pop-Tart. You'll love it.

Speaker 2 It's

Speaker 2 everything. Anyways, okay.
Great.

Speaker 2 Third, I was out in California this week, including at Melissa's old stomping grounds at Berkeley. And I wanted to give a shout out to some stricties,

Speaker 2 Srishti, Joanna, and Aaron. I even remembered, like Melissa does, to take down names and the cupcake and bake shop.
One of them gave me cupcakes from because they knew I liked Magnolia. Loved that.

Speaker 2 Also, to Sarah and Rachel, who I met Rachel on the plane path.

Speaker 2 I always forget to like mention this in the moment, but if you hear your names, please email me. I would love to send you something small.

Speaker 2 Also, on the California bit, I got to swim with my old swimming team at Stanford. So I wanted to say hi to Tim and Kathleen and Joe.

Speaker 2 And one more California item, which is: I have a review up of Justice Barris' book in the LA review of books. So you can check it out.
We will include it in the show notes.

Speaker 2 This is sneaky because it's out by the time you're listening, but it's actually not out yet. So Melissa and I haven't read it yet, and I am dying to drop it.
But I've read it.

Speaker 2 It's actually dropping Saturday. Did you read it dropped? Yeah, I offered to share a dropped, and Melissa said yes.
Oh, I missed it. Check your email, Kate.

Speaker 2 Check your email, Kate. It's like pop culture, Kate.
You got to actually watch it.

Speaker 2 Read about Pop Charts and leave a switch while I'm psyched to read it.

Speaker 1 Okay. Among my favorite things,

Speaker 1 last week I got to participate in the Kettering Foundation's inaugural democracy prizes.

Speaker 1 So the Kettering Foundation is a philanthropic organization that awards grants and they've been focused a lot on democracy and democracy building institutions, hence the inaugural democracy prize, which was awarded to two laureates.

Speaker 1 It was awarded posthumously to Alexei Navalny, the Russian dissident who was killed allegedly at the direction of the Kremlin, as well as Judith Brown Dianis of the Advancement Project, who is a tremendous civil rights lawyer who has done amazing work, including spearheading the effort on Florida's Amendment 4, which would restore voting rights to those who had been formerly convicted of felony.

Speaker 1 So, absolutely amazing to be a part of that evening and to introduce Judith Brown-Dianis and just great work all around.

Speaker 1 The other thing I really enjoyed this week was the Duchess of Sussex's Harper's Bazaar cover and interview.

Speaker 1 And I'm just going to say she was really going for a very light, no makeup, makeup look, and not my personal choice, but I get what she's doing here. She's sort of like, this is who I am.

Speaker 1 This is me authentically and without all of the artifice. And I love that for her.
And it's a very interesting profile. I thought she came off really well.
And the clothes are actually amazing.

Speaker 1 She's doing some very high-fashion things. In any event, my third favorite thing is the Mother Jones profile of veteran and ICE antagonist, Buzz Grambo.

Speaker 1 He is an individual who lives in Baltimore. He basically follows ICE around the city on a scooter.
He's upgraded his scooter motor so that he can chase them faster.

Speaker 1 And he just documents their abuses and warns city residents of their presence, like Paul Revere. And it's just a really great reminder that we can all push back.

Speaker 1 Speaking of some great items and a high fashion profile in Harper's Bazaar, if you're thinking about a high fashion moment for yourself, well, that means it's time for you to get on on over to the Crooket Store.

Speaker 1 This is the best time to shop because not only do you get to avoid your MAGA family by getting online and shopping at the Crooket Store, the deals are actually great.

Speaker 1 The vibes, as the kids say, are immaculate.

Speaker 1 You can grab holiday gifts for all of the libs and pod lovers in your life, and you can pick up something for yourself while the best sales of the year are on.

Speaker 1 You can get brand new stocking stuffers and a classic tea that you've had your eye on. Everything is on sale.
This is the glow up you have been waiting for.

Speaker 1 So just head on over to crooked.com forward slash store to shop the sale, get your glow up and get ready for everything 2026 has to offer.

Speaker 2 In case my favorite things didn't make it clear, love California, which means we are

Speaker 2 super, super excited to be headed to that Best Coast West Coast. We are finally bringing the podcast off your headphones and onto a real stage.

Speaker 2 We are coming to San Francisco on March 6th at the Herbs Theater and to Los Angeles on March 7th at the Palace Theater. Gift a ticket for the holidays or bring a friend.

Speaker 2 You can snag those tickets at crooked.com slash events.

Speaker 1 Berkeley, Oakland folks, don't be mad that we're going to San Francisco. The Bay Area is broad and you are part of it.
Get yourselves across that bridge to the Herbs Theater. We will see you there.

Speaker 2 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 2 Michael Goldsmith is our associate producer. Audio support from Kyle Seglin and Charlotte Landis.
Music by Eddie Cooper. Production support from Madeline Herringer, Katie Long, and Ari Schwartz.

Speaker 2 Matt DeGroote is our head of production. And thanks to our digital team, Ben Hethcote and Joe Matofsky.
Our production staff is proudly unionized with the Writers Guild of America East.

Speaker 2 Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com/slash at strict scrutiny podcast.

Speaker 2 If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode.

Speaker 2 And if you want to help other people find the show, please rate and review us. It really helps.

Speaker 2 My uncontrollable movements called TD, tard of dyskinesia, felt embarrassing. I felt like disconnecting.

Speaker 2 I asked my doctor about treating my TD and learned about Ingreza, a prescription medicine clinically proven for reducing TD in adults.

Speaker 2 That's always one capsule, capsule, once daily, and number one prescribed. People taking Ingrezza can stay on most mental health meds.

Speaker 18 Ingreza can cause depression, suicidal thoughts, or actions in patients with Huntington's disease. Call your doctor if you become depressed, have sudden behavior or mood changes, or suicidal thoughts.

Speaker 18 Don't take Ingreza if allergic.

Speaker 18 Serious side effects may include allergic reactions like sudden, potentially fatal swelling and hives, sleepiness, the most common side effect, and heart rhythm problems.

Speaker 18 Know how Ingreza affects you before operating a car or dangerous machinery. Report fever, stiff muscles, or problems thinking as these might be life-threatening.

Speaker 18 Shaking, stiffness, drooling, and trouble with moving or balance may occur.

Speaker 2 Take control by asking your doctor about Ingreza.

Speaker 18 Learn more at Ingreza.com. That's -

Speaker 18 R-E-Z-Z-A.com. Ingreza!

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