BREAKING: SCOTUS Greenlights Trump’s Cruel Immigration Policies

Leah Littman

Strict scrutiny is brought to you by Americans United for Separation of Church and State. The Trump administration's excessive Christian nationalist rhetoric is only building as we move toward the 250th anniversary of the Declaration of Independence. Those most caught in the crossfire are federal workers. Specifically, a multi faith group of federal employees filed a new lawsuit against the United States Department of Agriculture for violating the separation of church and state and the religious freedom promised in our Constitution. Our friends at Americans United for Separation of Church and State received emails from multiple USDA employees. A handful of employees reached out, saying the proselytizing Easter email sent by Secretary of Agriculture Brooke Rawlins to more than 100,000 USDA employees is an abuse of power that violates the separation of church and state promised in the First Amendment. They are absolutely right Con law. It doesn't have to be that hard. I mean Constitution just straight up says shall make no law respecting an establishment of religion. Seriously, what is with these guys and erasing the first sentence of constitutional provisions? That's what birthright citizenship is about too. Anyways, the hits keep on coming from this administration and Americans United is doing their best to keep up the fight against Christian nationalism. If you want to help, head to au.org crooked to learn more about their work and how you can get involved

Melissa Murray

Before Legally Blonde, before law School, Elle

Leah Littman

woods was in high school.

Melissa Murray

Set in 1995, this Gemini vegetarian knows

Leah Littman

exactly who she she is until her

Melissa Murray

family moves from Bel Air to Seattle and turns her world upside down. Watch Elle navigate a new city, a

Leah Littman

new school, frenemies and crushes all while

Melissa Murray

staying true to herself.

Leah Littman

Packed with iconic fashion, 90s nostalgia and a throwback soundtrack, Elle proves one law school was hard. High school was harder.

Melissa Murray

From the world of Legally Blonde, watch Elle a new original series only on Prime Video July 1st. This podcast is sponsored by Made in

Kate Shaw

Cookware, Made in partners with multi generational artisans and some of the world's best chefs to create professional professional quality cookware, knives and kitchen tools. Their products are trusted in Michelin starred restaurants worldwide and designed to perform just as well in your kitchen.

Melissa Murray

From five ply stainless clad to carbon

Kate Shaw

steel, every piece is built to last

Melissa Murray

and made to actually make you a better cook. Discover award winning cookware@madeincookware.com Mr. Chief justice, please report.

Leah Littman

It's an old joke, but when I argue, a man argues against two beautiful ladies.

Melissa Murray

Ladies like this, they're going to have the last word. She spoke not elegantly but with unmistakable clarity. She said, I ask no favor for my sex All I ask of our brethren is that they take their feet off our necks.

Leah Littman

Hello.

Melissa Murray

This is Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray.

Kate Shaw

I'm Kate Shaw.

Leah Littman

And I'm Leah Littman. And.

Melissa Murray

Ugh.

Leah Littman

This is an emergency episode. We got four opinions today, including two major immigration cases we wanted to cover right away. These immigration cases written by Sam Alito,

Kate Shaw

which basically we could. Stop the episode.

Melissa Murray

Yeah, exactly. Stop Emergency. We're done. Yep, yep, we're done. Basically, folks, you already know, if Sam Alito is writing, we're crying. We're talking about these cases right now because they are very, very significant. They will enable a lot of the Trump administration's gratuitously cruel, careless, and and deeply, deeply consequential immigration policy. These decisions will free this administration of most legal obligations, maybe even give them a get out of law free card to just do their worst with regard to people who are here in the United States who they believe are not, quote, unquote, heritage Americans.

Kate Shaw

Yeah. And there are a lot of what we might call legal problems with the analysis on display in Sam Alito's two opinions. But also, there's just kind of a bottom line sort of takeaway that we wanted to start with, which is, you know, a line from Justice Sotomayor's dissent in one of the cases that kind of sums up the two opinions together. And that is, quote, the consequences of today's decision are predictable. More people will die.

Melissa Murray

And if you're thinking that sounds like Dobbs, you're right.

Kate Shaw

Yeah.

Leah Littman

Also, like, let's run that back again.

Kate Shaw

Yep. Just one day for your anniversary. And. And we will do more of that. So we're going to focus in this emergency episode on about the administration's termination of temporary protected status programs for Haiti and Syria, and then the case about an asylum procedure that would allow the administration to avoid processing asylum seekers as required by law, so long as immigration officials stop a person at the border. As we said, there were two other cases today. We will say at least a few words about those in our regular episode that will be in your ear holes on Monday morning.

Leah Littman

And despite what you may hear about this very non ideological, nonpartisan court, both of These opinions were 6, 3, and both of them were about as bad as can be.

Melissa Murray

Yeah.

Kate Shaw

Okay, so we'll start with the asylum case, Mullen versus Al Utro Lado. Okay, so as you said, 6:3 decision authored by Justice Alito, and the court basically gave the administration in this case a get out of the law governing asylum free card. The specific question in the case is whether an individual who has been stopped at or outside the border, quote, arrives in the United States for purposes of asylum law, which would mean the individual has to be allowed to claim asylum and have their asylum claim assessed.

Leah Littman

Here, the court held that for purposes of the relevant asylum statutes, an alien arrives in the United States when the non citizen crosses the border into the United States. As the majority reasoned. You don't say a running back is in the end zone when they are standing outside of it. Yes. This was Sam Alito's legal analysis of complicated immigration law.

Melissa Murray

I think he got an assist. I think he got an assist on that one from. Yeah, you know who.

Leah Littman

Entire logic here requires divorcing the word in from the entire structure of immigration law, its context, the fact that this provision exists in a broader statutory scheme, why this provision was enacted, and so on.

Melissa Murray

We should talk about the broader context of all of this right now. So in 2016, the Department of Homeland Security responded to a surge of asylum seekers at the southern border by implementing a metering system that imposes a daily limit on the number of asylum seekers that can be processed in a given day. And to enforce that policy, DHS officials would stand on the US Side of the border, and if the allotment for the day had been met, they would stop asylum seekers from entering into the United States in order to be processed. So if you reached your limit for that day, people had to stay on the other side of the border, even if they were presenting themselves, even if they were interacting with officials from the United States, despite the fact that asylum law exists and requires them to be processed. So there's this artificial limit. And even when you're right on the border interacting with US Officials, if they've reached the limit, you're out of luck. The metering policy, however, was rescinded in 2021. And if you're wondering, doesn't that make this case moot? Well, good for you. You could be a lawyer, but not for the Supreme Court. This is all to say that the court deciding to take up this challenge was totally a choice because this issue isn't really live anymore, because this policy is no longer extant.

Kate Shaw

But evidently the court just could not let pass the opportunity to tell the administration what it could do if it wanted to, say, revive a policy like this. And it is essentially handing through this very tortured reading of this statutory term arrives or arrives in an insane loophole to the administration. If you are two feet from the US Border in Mexico. That should not give the administration the authority to deprive people of human rights, like the right to claim asylum or to ignore asylum protections under, like putting aside international law under US Statute. But right now, the administration, under this reading, may be able to circumvent a bunch of laws protecting asylum seekers just by physically obstructing, preventing their entry at the border.

Leah Littman

And I want to situate this case within a broader trend of just rendering legal protections, at least the ones these guys on the court don't like, completely unenforceable. So again, we'll talk more about this on our regular episode. But another decision issued last week said protections for legal permanent residents at the border. Those don't actually apply at the border because lol. Second, the terms of spending programs, those can't be enforced against state officials that are obligated by them. Because why? We said so and we made a fun little analogy. International human rights law that can't really be enforced in Cisco. Why? Because Justice Scalia didn't want to state court suits in Monsanto. That was an opinion decided by today. Those can't proceed because that would allow corporations to be sued. And we'll talk about that in our regular episodes. So just greatest hits.

Kate Shaw

Lots of bangers denying access to courts and severing rights from remedies. And also just like big wins for the Trump administration. I think those are the two big themes. And corporations, right, who are obviously on the same side of these cases. Those are two big themes, I think, of this week's decisions.

Melissa Murray

Well, I also think another theme here is we do what the fuck we want to do. Like, who gonna check me, boo? Like, I mean, to reiterate, the court didn't have to make this decision. Like, the metering policy is no longer in effect. The Trump administration, however, asked the court to take up this case and made moves about how maybe it could revive this policy. Therefore, there was not a mootness issue. Again, they wanted this case before the court because they wanted the go ahead for basically obliterating what exists for protections for asylum seekers. And the court was like, yeah, bet that sounds great. Let's do that.

Leah Littman

Hashtag, yolo, YOLO court.

Kate Shaw

We started off by referencing a line from Justice Sotomayor. She was not going to go quietly in dissent in this case. We were not in the courtroom on Thursday. So when the court issues decisions, they take the bench and the author of a majority opinion typically reads a summary. And when the dissent feels really strongly about the case, then they will sometimes also read what's called a bench statement, but I have never heard of, like a reply from the author of the majority opinion, a rebuttal. What I there, there's no name for it because it doesn't happen. But evidently Alito on the bench responded to Justice Sotomayor.

Leah Littman

Yeah. So Chris Skiner at Law dork Lawrence Hurley at NBC reported that Alito countered Justice Sotomayor with a further statement from the bench because he is the saddest, whiniest little man, never beating the allegations that he is nothing more than an angry 80 year old grandpa whose brain has been addled by Fox News and needs to tilt at the wind. Sorry, Melissa.

Melissa Murray

So we do have a readout from the Hill on what happened in the courtroom. So as you just recounted, he first briefly read the majority's position. Justice Sotomayor then read her dissenting opinion when she criticized the majority opinion as egregiously wrong. The Hill reports that Justice Alito leaned forward in his chair, propped his chin on his hands and said, stared up at the ceiling. Okay, that's such a picture. Then when Justice Sotomayor commented about the majority opinions, reference to the language of arrival in the context of immigration, and briefly used the example of landing at Reagan National Airport, Alito briefly set his gaze on Sotomayor. Then after she concluded, he softly cleared his throat before issuing a rare off the cuff response to a dissent. Not just rare. I think kind of unprecedented.

Leah Littman

I think unprecedented.

Melissa Murray

The conservative justice appeared testy as he said that there was much more that he would have added if he'd known that Sotomayor would read her dissent aloud in full.

Leah Littman

What a fucking sore loser.

Kate Shaw

It also is a sore winner.

Leah Littman

Sore winner.

Melissa Murray

It's just.

Leah Littman

What are you talking about?

Kate Shaw

This is just like, remember, obviously, the, is it the 2010 State of the Union address? Right? When he, when he shakes his head when Obama describes Citizens United and he just like cannot control himself. This is, I think, that energy. And it's possible that he was stirred to taking this perhaps unprecedented step because Justice Sotomayor was unsparing in her dissent and evidently from the bench statement too. So she said the court's opinion kind of amounted to, well, we said never again. But that turned out to be yes again after 80 years because as she notes, in international humanitarian law, including protections for asylum, emerged after the Holocaust and the international moral reckoning it provoked. That's what this opinion largely dismantles.

Leah Littman

Yeah, so she recounts, quote, one infamous incident when the voyage of the Ms. ST. LOUIS In 1939, over 900 Jewish refugees attempted to flee persecution in Nazi Germany and were turned away only for many of them to be murdered. And Congress passed the refugee act in 1980, quote, because it did not want this country to repeat the mistakes of its past, being able to turn away refugees only for them to die horrific deaths. And again, this is what the Court's opinion allows the administration to do, to just effectively deny anyone asylum protections, even if they have very meritorious asylum claims. And the administration would otherwise be required to consider them under federal law and international law because they just managed to block them at the border.

Melissa Murray

Can I go back to Justice Alito? I'm sorry. I definitely appreciated the history lesson both from you and from Justice Sotomayor. And I think it's really useful context for people who aren't familiar with these statutes. There is a provenance here and one worth remembering. But I will just say Justice Sotomayor has a history of calling out her conservative colleagues on just like, the batshit things that they do. So if you'll recall, in Trump versus Hawaii, which I'm going to come back to at another point in this episode, in Trump vs. Hawaii, she basically talked about the travel ban and analogized it to the Court's infamous decision in Korematsu, which was the case that basically greenlighted the internment of Japanese people of Japanese descent and Japanese Americans during World War II. And the chief justice, you know, I felt like it almost felt like he went back to the original opinion he'd wrote and just like, oh, by the way, that's not true. And we are dismantling Korematsu right now, where it's no longer good law. It was never good law. And yeah, and so there he says,

Kate Shaw

the reference to Korematsu gives us an opportunity to make explicit what's already been, like, written in the annals of history. But we're gonna do it ourselves, right?

Melissa Murray

I mean, it was a more decorous kind of way to respond to her, but it's basically what Alito is doing.

Kate Shaw

Totally.

Melissa Murray

Right. Called on their shit like Alito's is just more bitchy and mean spirited and petty. But yeah, and petty. They're all doing. They hate being called on this. They hate being told.

Leah Littman

Can I say on that, all of them? Because as the Hill suggests, apparently the Hill says that the other conservative justices display little reaction to Justice Sotomayor, with several of them, like Barrett, Gorsuch and Thomas staring down at their papers and Kavanaugh staring directly at Justice Sotomayor throughout her speech from the bench, as if she was the Problem?

Melissa Murray

Well, I mean, so again, remember that remark that Justice Sotomayor made for which she later apologized about? You know, I have a colleague and he's got rich parents and he doesn't know anyone who works a day job and he's just out of touch. And then she apologized for it. I mean, I, I think there's, there's a lot of stuff going on here. Um, yeah.

Kate Shaw

And yeah, they don't like to be called out. They don't like to be called up by her. And they also must have the last word. Um, so whether that's in the form of an opinion or this kind of final statement, it's pretty wild. They just won six. Three. Like, you can't let her.

Leah Littman

But it's not enough to win. You must be celebrated as the most amazing justice who is doing perfect law and no politics as well. No one can criticize them on that tip.

Melissa Murray

Do you remember after Dawes, when the Chief justice issued his year end report to the federal judiciary and he was like, you know what this all reminds me of? It reminds me of massive resistance. Yeah. Where these judges stood up for the Constitution and the rule of law in the face of massive resistance, and all these segregationists came for them. Like basically you ladies who want rights over your body, you're basically like segregationists and us, we're those noble judges standing up for the Constitution and the rule of law and taking that away.

Leah Littman

Trying to segregate us from controlling your body ain't no thang.

Melissa Murray

We would like to integrate you into tradwife life.

Leah Littman

This episode of strict scrutiny is brought to you by Alloy Health. Let's be honest, aging not always awesome. I mean, take a look at Sam Alito's skin. Sleep disruptions, hot flashes, brain fog, and more. I don't want my brain to work like Brett Kavanaugh's. Menopause is inevitable, but it's also treatable. Almost half of women go more than three years before seeking relief from menopause or perimenopausal symptoms. Why would we do that to ourselves? It's because 43% of women reported that their doctors never even mentioned menopause hormone therapy as an option for treatment. Another 40% didn't know where to go for a solution. Alloy can help you feel and look your best through menopause and beyond, offering unlimited access to expert physicians and safe science backed treatments for your symptoms. Skin, hair, all delivered to your door. Everything is done online from the comfort of your home or anywhere. No waiting for an appointment or in line at the pharmacy Alloy is fast accessible and their treatments actually work. Here's how it works. Step one Complete your intake. Alloy solutions are available by prescription, so you'll need to complete an intake form and patient verification. Step 2 Receive a treatment plan from your doctor. You'll be matched with a menopause specialized physician who will create a personalized treatment plan tailored to your specific needs. Get your three month supply. Once approved, Alloy ships your prescription directly to your door with automatic refills. Easy peasy. Look, I can't function without sleep. Just a fact. So the prescribing physicians with Alloy are there to help with the hot flashes and night sweats keeping you up at night. I cannot recommend Alloy enough. Join the 95% of women who tried Alloy and saw relief in the first two weeks. Head to myalloi.com and use the code strict and tell them all about your symptoms and you'll get a fully customized treatment plan and unlimited messaging with your doctor. Plus you'll get $20 off your first order today. Head to my a l l o y.com and use code STRICT to get $20 off your first order. Strict scrutiny is brought to you by Wild Alaskan Co. We eat pescetarian at home but we don't eat fishy smelling fish. You know the stuff that doesn't taste fresh and just has that yucky smell and yucky texture ruins the meal really doesn't matter how much sauce you use and trust me I've tried but I don't want to give up eating fish at home. I basically think of myself as part dolphin given how much I swim so I need the fish to keep me swimming. Wild Alaskan Company offers the best way to get wild caught. High quality seafood delivered to your door on your schedule. Here's what Wild Alaskan Company has on each Wild Alaskan box comes with individually portioned filets, vacuum sealed, easy to prep and great for any meal no matter how quick or elevated. It makes it super easy to portion, size out the meals and everything is pre cut for you. And all their fish is quick frozen fresh from the Alaskan waters which helps lock in its freshness, texture, flavor and key nutrients like omega 3s and and and it's fish you can trust. Unlike some guys on the supreme court with no GMOs, antibiotics or other additives. Every order supports sustainable harvesting practices and Alaskan fishermen whose history is tied to the region and practice. Some of my favorites from the Wild Alaskan Company are the Pacific Halibut. Halibut is firm but not too overpowering so it holds up well with thicker sauces like the sheet pan fish, tikka masala or Gojujang's motherfish. I also like the Pacific Rockfish. That's more of what I use for lighter sauces like more of a Mediterranean flavor. Wild Alaskan company is so confident that their fish is the best that they offer a 100% satisfaction and money back guarantee. So you can try your first box risk free. Go to wildalaskan.comstrict for $35 off your first order of premium wild caught seafood. That's wildalaskan.comStrict for $35 off your 1st order. Thanks to Wild Alaskan Company for sponsoring this episode. Should we do the TPS case?

Kate Shaw

Yeah, because if you thought it was bad, it somehow gets so much worse in the TPS case. Yes, because this is another six three Sam Alito authored decision and here the court basically said one immigration statutes, or at least some of them, maybe all of them. Those aren't real laws that are actually enforceable against the Trump administration. Specifically here the court said that the federal statutes governing this temporary protected status or TPS designation, and the kind of revisiting the designation either to terminate or extend it, that those statutes which require certain procedures be undertaken before any modification is made, and specifically before TBS status is canceled, or these statutes and their requirements are basically not subject to judicial review. Full stop.

Melissa Murray

Just to be clear, that's really important that the court is sort of hanging its hat on. These are just not reviewable because there is very little question that the Trump administration failed to comply with the letter of the law here. As we discussed in our live show in New York City last week, the New York Times has reported and emails confirm that the Department of Homeland Security canceled the TPS program for Haitian nationals without waiting for the required statutory consultation with another department, in this case the Department of State. But don't worry, the Court manages to avoid that unfortunate factual and statutory wrinkle by concluding that the statute doesn't permit review of the Secretary's determination that TPS should be rescinded. And to be very clear here, the majority gives the term determination a very broad meaning that includes not just the decision to rescind tps, but basically the quote, chain of events that leads to that decision. And this again sparks the man with the butterfly meme. Is this textualism?

Leah Littman

Oh, for sure, for sure. As Justice Kagan said, quote, very broad would be one description for that reading of the term determination. Very strange would be another. But in addition to rejecting the statutory claims the claims that the executive branch had not followed the laws as far as the required procedures they had to follow.

Kate Shaw

Can we, before we go on to the constitutional. Can we just, Can I say one more thing about the statutory. Because, right. Those are the two arguments in the case. Right. That the statutes weren't followed. It's like statutory argument. And then there's a separate constitutional argument that also fails. Leah, we'll talk about in a minute. But I just, I was trying to figure out whether. Because in the oral argument, I thought the plaintiff's attorney, you know, tried, I think, very kind of savvily to say if you guys accept this no judicial review argument, then literally anything goes. So administrations could cancel everybody's tps. They could like, grant TPS to every country in the world. And like, they were trying to appeal to the conservative sensibilities of the majority by saying, what if a Democratic president decides to, like, let everybody in the world in using TPS designation? And I just couldn't tell whether Alito tried to be like to leave a little crack open so that if there is a future Democratic administration that uses TPS in a way that is too expansive or too generous, they might still say, well, we didn't say no judicial review, just not much judicial review. Like, I don't know if you guys had a read on that, but it felt like there might have been some effort to kind of like see around that corner and make sure that if it came to actually reining in, well, expansive use of this authority, then they

Melissa Murray

were very able to do. That's never going to happen. We're never going to have a Democratic president because we're going to fuck up the election so hard, change these districts so incredibly that it's going to be Republican rule forever.

Kate Shaw

Yeah, but just, but they may be just belt and suspend ring in case they are unsuccessful somehow in doing that. So anyway, I just wanted to throw out that possibility. But sorry, Leah, you're going to talk about the other. The constitutional equal protection argument. Yeah.

Leah Littman

So the court also rejected the claim that the cancellation of TPS for Haitian nationals was the product of unconstitutional animus and racial discrimination. So I think in one of the more cowardly and craven moves Sam Alito has made, which is saying something, he refuses to even quote, and include the foul, racist remarks that the president made about Haitian nationals before his administration canceled the TPS program for Haitian nationals. To my mind, like, he kind of goes, see no evil, hear no evil, speak no evil, and applies that to the horrific blatant racism which included the grotesque remarks from the president about how Haitians have aids, where eating cats and dogs would poison the blood of the country, and how Haiti is a shithole country when according to the present, we should really be taking people from Norway and Sweden. This, apparently, to Sam Alito's delicate eyes, ears and pen, who could not even recite, this is not racist. Which means, I think the effect of this ruling is to legalize racism. You know, as Justice Kagan noted in her dissent, the majority declines to put these statements in print. Like, they apparently find the statements so repellent and racially inflected that they don't go in the opinion. And just to situate this case kind of in some context of the court's other jurisprudence, talking about poisoning the blood of the country isn't racist. But you know what is racist? Enforcing the Voting Rights act and multiracial democracy. Also from the pen of Sam Alito.

Kate Shaw

Yeah, not from his pen, but also trying to ensure a modicum of diversity in institutions of higher learning. Also relying on state laws from Reconstruction to justify restrictions on gun rights. We'll get to that in our next episode. That, too, is racist. I mean, those laws were racist, but the reliance on it being racist is sort of a, an innovation of this majority. Yeah. So there's lots of examples, but Trump's words, those aren't among them.

Leah Littman

Yeah. And also, you know, what is evidence of animus? Again, not saying that Haitian nationals will poison the blood of the country, but talking about how if someone wants to do business in a state, they might have to comply with laws that go against their religious beliefs. That is animus.

Kate Shaw

Yeah.

Leah Littman

Rule of law.

Kate Shaw

Yeah. I mean, so Alito actually has the gall to basically say, you know, he won't actually reproduce verbatim any of these statements. And then he has the gall to basically say that this rhetoric is just the rough and tumble of politics. Like he says, quote, unquote. I, I almost can't even believe that he put this in the opinion that he did.

Melissa Murray

Just read it.

Kate Shaw

I will. Political discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago. And the statement cited by me out respondents, the plaintiffs in the case in the Haiti case, especially those concerning Haiti and Haitian immigrants to this country, exemplify this development. It's just the coarsening of the culture, ladies. Everyone does it.

Leah Littman

Well, also, one additional thing he says about this. Them, he says, quote, the respondents, that is the federal government, identify a strong race neutral explanation of these official statements. The present administration's general stance on immigration and its obvious antipathy toward past administrations. TPS policies. I'm sorry, is their general stance on immigration racist? And also, did they not like the previous administration's TPS policies because they admitted black people? Like, what the fuck?

Kate Shaw

Their xenophobia completely cleanses the racism. Like, it's just wild reasoning.

Melissa Murray

Well, I mean, are you surprised by. I mean, like, this is kind of like partisan versus racial gerrymandering. It's not racism if it's xenophobia. It's not racial gerrymandering if it's partisan gerrymandering.

Kate Shaw

Completely.

Melissa Murray

Duh. Again, I think all of this smacks the court's decision in Trump vs. Hawaii, which upheld the third iteration of the travel ban, the one that had been sanitized to some degree. And I really think, although it's against type, you should read these cases in tandem with Calais and the other Voting Rights act cases where the court is, I think, giving birth to a new understanding of discriminatory intent. And basically it's this, like, no one white is ever being racist when they say blatantly racist things or when they organize extant government structures to disadvantage racial minorities. That's not racism. Like, the intent isn't there that that can be explained by other race neutral criteria or events. Instead, as Leah alluded to before, what actually gives rise to racism is thinking about diversity, thinking about equality and equity, suggesting that the nation's history may be punctuated by episodes where we disadvant and even subjugate certain groups. And I'm thinking here specifically of the recent 3rd Circuit case that clears the way for the National Park Service, at the direction of the president, to eliminate all references or many references to slavery in a public exhibit on Independence Mall. That's the real racial intent here. That is discriminatory and subject to judicial censure. The rest of this, it's all fine. There are perfectly plausible race neutral explanations for all of these things.

Leah Littman

Yeah, I can't tell if it's like, plausibly race neutral or the coarsening of our politics. Like both or. Right. Yeah, or both. Anything but racism.

Kate Shaw

Yeah.

Melissa Murray

Yeah. I mean, yeah.

Kate Shaw

Okay, we are gonna do some quoting from Elena Kagan's dissent, which I think sums all of it up pretty well. She says the plaintiffs are entitled to stay in the country while these suits go forward. Remember this case, these cases came up like, way early. Like, there was. There have been some discovery, but the cases were still ongoing. So she says that. And then she says, respectfully, I dissent from the court's decision that they may instead be put on the next plane. She kind of goes out of her way. It's interesting. At one point she says, you know, she does call the majority out in refusing to actually reproduce the racist statements at issue in the case. But then she also says that those actually contrast with the majority's quite respectful discussion of the conditions in Haiti. And it's like the majority's refusal to denigrade Haitians as a group. I'm not quite sure she goes out of her way.

Leah Littman

The bar is literally in hell. Way too nice to her colleagues. Yeah, yeah.

Kate Shaw

I mean, it's, this is why it's, it is so hard. And Melissa, you said this, you know, calls to mind Trump versus Hawaii. Like, absolutely. I have a piece that I think will be out by Monday. I think this is just so much worse because in Trump v. Hawaii, I at least read it as having. There is this, like, through line of a. The president's. There is at least a distaste that the Roberts opinion is. Is able to muster about the statements which you don't have in the Alito opinion because, like, he won't even explicitly talk about them. So it's not enough. But it's more. But I do think you also have, at least on my read of Trump versus Hawaii, this, like, the tenor of the opinion is, okay, the President said some crazy stuff, but there was this interagency process and like, those experts, like, cleansed the process of like, whatever it was, discriminatory taints.

Melissa Murray

The president's statements might have way better at this than Sam Alito, I hear you saying.

Leah Littman

And he assigned him this opinion. He assigned both these.

Kate Shaw

And staying silent, not writing anything separate, I thought was a very revealing choice because, yeah, he doesn't have, you know, even if he wanted to call the administration out in the way that he did in the census citizenship case and the DACA rescission case, he doesn't have the votes to do it, but he all. He does have his vote. And he decided to give his vote on fully and without a separate writing at all to Sam Alito.

Leah Littman

And this appalling Melissa says, see, which got your voice. Slash pen. John, like, what's going on?

Kate Shaw

Yep.

Melissa Murray

Well, I mean, the best part is Samuel Alito is only too happy to carry water for the Chief justice to do this. I mean, like, I mean, have you ever seen a more willing foot soldier? Yes, sir. I'll jump into the racism. Yes.

Kate Shaw

I'm sure he asked for these opinions. He wanted to write these cases.

Melissa Murray

No, no, I'm sure he did. I mean, but I mean, like, my point with regard to, you know, it's gotten so much worse. Like, I don't absolve John Roberts of it. I mean, like, I think he just makes it look more decorous in Trump versus Hawaii. He's better at it. He's better at making it look just, you know, okay. It's not total. Like, there are reasons, and here's why. Even though we know that Trump said those things, and of course, they inflected the process by which that executive order was promulgated. Of course it did. But now they don't even care about just sort of like, okay, we're going to deal with this. But there are actually these other reasons now. They're like, you know what? There's no racism here, because what there really is is xenophobia. And that's okay. That's like, that's a choice. I mean, it's the same way we used to hate partisan gerrymandering. We wrote a whole decision about how unseemly partisan gerrymandering is. And now, you know, I. John Roberts, I'm going to cede the pen to Sam Alito to talk about how partisan gerrymandering is your birthright if you're a Republican.

Kate Shaw

Completely.

Melissa Murray

You know what? Even though this is a short episode, I think we need to have our evergreen segment. We need to talk about Justice Clarence Thomas. Do we?

Kate Shaw

I think we do, yes.

Leah Littman

Because you know what? He would go further. Shocking.

Melissa Murray

I'm shocked.

Leah Littman

These Alito opinions not far enough for Clarence Thomas.

Melissa Murray

No. How far does he want to go, Leah?

Leah Littman

He would make it a fish. A fish. He would say that the equal protection guarantees actually don't apply to the federal government. Also, even if it was racial discrimination, that wouldn't be unconstitutional.

Melissa Murray

Fifth Amendment. You in danger, girl. Yeah, that's where we're going. Invitation to basically rescind the Fifth. Fifth Amendment, which includes a due process clause that has been interpreted by this court in Bolling vs Sharp, a companion case to Brown vs Board of Education, to include an implicit equal protection guarantee that applies to the federal government as much as the states. And apparently Clarence Thomas takes that personally.

Leah Littman

Well, if Justice Thomas has to live through the indignity of seeing the Court enforce the first sentence of the 14th Amendment, he really wants to take the Fifth Amendment out to the woodshed. You know, he needs a little consolation prize.

Melissa Murray

Anyway, folks, if in the next couple of weeks, probably next week, when we get the court's decision in birthright citizenship and you hear all of Those hot takes talking about how decorous this court has been, how they really stood up for the rule of law, how they stood up for the Constitution, and they went toe to toe with this president and did not blink. I want you to come back and run this episode back and just think about all the things the court did on immigration before it did that. One thing that it actually could have done a year ago but didn't.

Leah Littman

Yeah. Please do not forget everything that happened this week, including how the court again enabled a lot of the racist, xenophobic elements of Trump's immigration agenda. Sometimes gratuitously.

Melissa Murray

Right.

Leah Littman

Just telling them they could do something they weren't even doing at the time.

Melissa Murray

Yeah, yeah, yeah.

Kate Shaw

All right, ladies, till next time. Opinions coming down. Well, we will reconvene tomorrow. We will have an episode in your ears and eyes on Monday. The court will have more opinions. There are eight to go. So probably Monday and Tuesday. Is that what we're assuming?

Leah Littman

Definitely Monday. And Monday will not be the last day. I am hoping it's Tuesday and it won't go into July because what is

Kate Shaw

taking them so long? I know.

Melissa Murray

Girls are fighting. No, I'm the most right wing. No, I'm the most right wing.

Leah Littman

Is this racism or are we saying racism is legal? We need to mull over that a little bit longer.

Melissa Murray

I would go further and overrule the whole Constitution, actually.

Kate Shaw

All right, well, we got a couple days of suspense until we figure out which of the above it actually is. Why not.

Melissa Murray

Stick? Scrutiny is a crooked media production. Our show is produced by Melody Rowell and Michael Goldsmith. Jordan Thomas is our intern. Our team includes Matt de Groat, Ben Hethcote, Johanna Case, Kenny Moffat, Eric Schutt and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East. At Fred's Appliance, we know that real life is piles of never ending laundry, especially during fourth of July. But relief can happen for those who shop at Fret's Appliance. We don't do gimmicks, just clean laundry and everyday low prices. Right now, all laundry is on sale from ge, L, LG Maytag and more. Save big on top load and front load washers and dryers. Plus save up to $800 in rebate. When you buy more, save more. Shop the largest supply of in stock. Get it today inventory in the region this fourth of July only at Fred's Appliance. When you're a maintenance engineer in a

Kate Shaw

beverage manufacturing plant, you keep production lines

Melissa Murray

moving and quality on track because there is no room for slowdowns. With Grainger's vast selection of high quality

Kate Shaw

mobile motors, sensors, belts and hard to

Melissa Murray

find parts, you can get what you need fast and all in one place, so nothing gets in the way of

Kate Shaw

getting the job done.

Melissa Murray

Call 1-800-GRAINGER clickranger.com or just stop by

Kate Shaw

Grainger for the ones who get it done.

Melissa Murray

When you're a maintenance engineer in a beverage manufacturing plant, you keep production lines moving and quality on track because there is no room for slowdown. With Grainger's vast selection of high quality motors, sensors, belts and hard to find parts, you can get what you need fast and all in one place, so nothing gets in the way of getting the job done. Call 1-800-GRAINGER clickgrainger.com or just stop by

Kate Shaw

Grainger for the ones who get it done.