Alyssa Murray

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Tommy Vietor

Hey It's Tommy from Pod Save America and Pod Save the World. Last year, 2,500 people joined us at CrookedCon for conversations with some of the smartest organizers, least annoying politicians and most interesting voices in politics to talk about how to fix this mess. Even President Obama made a surprise appearance. We're doing it all again, November 5th to 7th in Washington, D.C. president, with even more podcasts, panels, and workshops. Plus, there'll be drinks, which we'll need after the midterms. No matter which way they go. Get tickets@crookedcon.com if you're a friend of the pod, you get a discount, too. See you there. Mr. Chief justice, may it please the court.

Leah Litman

It's an old joke, but when I

Tommy Vietor

argue, man argues against two beautiful ladies

Alyssa Murray

like this, they're going to have the last word.

Kate Shaw

She spoke not elegantly, but with unmistakable clarity.

Alyssa Murray

She said, I ask no favor for my sex.

Kate Shaw

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

Leah Litman

Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Litman.

Alyssa Murray

I'm Alyssa Murray.

Kate Shaw

And I'm Kate Shaw. And this is our term recap episode, which means we will look back at the Court's term and take stock. Technically, the October 2025 term isn't over. It will not be over until October term 2026 begins. And given the shadow docket activity, which is always very, very significant over the summer, there will be plenty to keep the Justices busy and probably us as well. I'll just say I hope the emotional support billionaires understand that this will vacation.

Leah Litman

Yeah, John Roberts is going to be working to finally come up with a way to reconcile Slaughter and Cook, or maybe even settle on what the legal standard for cause is. Work Bitch, ferc.

Alyssa Murray

Bitch. That said, listeners, since the Court has finished releasing opinions in argued cases, we think it's important to step back and analyze the bigger picture rather than focusing on particular opinions as we do during the regular termination. As always, the Court made this so difficult for us to do because they didn't release the final opinions until the absolute last day in June. And indeed, they consolidated some of the biggest cases right at the end. The one exception, of course, was Louisiana versus Calais, which it released at the end of April, just in time to throw the midterm primaries into chaos. But all the other bangers, those came out right at the end.

Leah Litman

Yeah, there was also the terrorist decision. But all of that means that we are recording this recap only a few days after the Court finally finished releasing opinions, which means this is just a first pass at surveying the wreckage of October term 2025. Probably going to be circling back to this bad decision season as we brace for October term 2026.

Kate Shaw

But per usual, on this term recap episode, we will highlight some themes, offer some roses and thorns in the process and do our level best to try and wring at least a little bit of levity out of the shitst that was this term. That's gonna be hard. Honestly, things are pretty bleak. And we'll conclude by discussing our summer plans, or really rather the podcast plans for the break.

Alyssa Murray

All right, so listeners, I think it's time to pour yourself a stiff Susan Collins and buckle up for the term recap. And I'm just gonna say this was such a doozy of the term, I don't think it's going to be a one cocktail kind of enterprise. So we have something else for you beyond the standard Susan.

Leah Litman

If they want to do drunk history, let's do drunk podcast listening. So when you've finished your Susan Collins, we have another summer cocktail for you. In honor of our ever expanding executive, we offer this one, the Reflecting Pool. Thanks to the enterprising mixologists and listeners who came up with this one, the Reflecting Pool is a refreshing mix of rum, blue Curacao and pineapple juice. Obviously, you make this first by coating your glass with the blue Curacao. Make sure you procure this liquor through a no bid process to ensure the lowest quality possible. Then add a dash of rum and a healthy dollop of pineapple juice to give it that green tint. Garnish the cocktail with a blue fruit roll up to mimic peeling paint. And if you're feeling especially adventurous, you might include a pinch of matcha and blue spirulina, because algae, I'm not gonna

Kate Shaw

lie, that sounds delicious.

Alyssa Murray

Okay, it does sound refreshing. And for those of you who think that a second summer cocktail is unnecessary, our only rejoinder, and I think it's a very good one, is that if SCOTUS is going to do drunk history with the Const, or at least the second Amendment, we all should be reaping the benefits of the founding frat boys rich history and tradition of getting hammered. So this is an invitation to you listeners. Let your freak flag fly.

Kate Shaw

All right, bottoms up. And now that you have your preferred libations in hand, let's get started. Before we lay out some themes that we thought emerged throughout the term, we wanted to first make a couple of points, slash observations about just how bad things are.

Leah Litman

First, it struck me that none of us, literally no one, was surprised that the court overruled a near century old decision, a decision that multiple Congresses and Presidents have relied on since it was announced in 1935. And the fact that we weren't shock that it was of no moment to us and to much of the mainstream media suggests how broken this Court actually is. That's where our expectations are. This, of course, is a reference to Humphrey's executor, which the Court may have overruled in a shadow docket decision earlier, or it definitely overruled in its final decision in Trump vs.

Kate Shaw

Slaughter.

Leah Litman

Slaughter wasn't just about overruling a decision decision. It was about invalidating almost 150 years of practice in how our government is structured and functions. Slaughter held that because the President is the head of the Executive branch and all executive power resides in his office, he may remove the heads of independent agencies whenever he likes, unless it's the Fed. As we said at various points in this term, the Court was gunning for Humphrey's executor and the independence of administrative agencies. We knew this was going to happen. And the fact that this again was both predicted and predictable gives you a sense of just how broken things are.

Alyssa Murray

I'll offer another point here. We really need to play out the implications of the fact that The Supreme Court divided 5 to 4 on the constitutionality of the Birthright Citizenship Executive Order. And I'm just going to say that again, five to four. I know that there are some people in the media and Supreme Court appellate lawyers who want to sane wash it and say that this was a 63 decision. And anyone who calls it a 5 to 4 decision is doing bad fear mongering. There are four members of this Court that believe that the Constitution does not say what it says, that Reconstruction did not do what it did. And that's honestly a little too close for comfort, at least for me. This was a 5 to 4 decision. Don't let anyone tell you differently. Yes, 6 to 3 that they can't do this with this Executive Order, but not that they can't do it at all. And not that the Constitution means what it says in plain language. There are four people who are like, I don't think so.

Leah Litman

Right, Exactly. Because four Justices said the Executive Order was not unconstitutional in its entirety. That is the 54 split. Even though six justices concluded the order was illegal. Not going to rehash everything here, but plain language of the 14th Amendment provides that persons born in the United States and subject to its jurisdiction are citizens. The challenged Executive Order insists that some people born in the United States are not citizens, specifically those born to undocumented immigrants or people with temporary legal status. Executive Order clearly and obviously contradicts the text of the 14th Amendment and also this country's history, precedent and long standing practice.

Alyssa Murray

So the upshot of all of this is that this Court divided five to four on whether the Constitution means what it actually says and whether this President, with an assist from the Court, can sua sponte wipe away a signature feature of the post bellum American constitutional order. Again, the postbellum constitutional order to which I refer is evinced in the Reconstruction Amendments. These were intended to eradicate the racial caste system that the Supreme Court's decision in Dred Scott v. Sanford codified in the Annals of the US Reports. The Court in Dred Scott held that despite the common law rule of use soli citizenship that had been the default in the United States since the colonial period, those born in the United States but of African descent could never be citizens. That was the Dred Scott decision. It was one of the most infamous and infamously racist decisions in the history of the Court earning pride of place in the Court's anti canon. And yet this 5 to 4 decision on the constitutionality of the EEO suggests that some members of this Court are okay with returning to the pre Civil War status quo. So I guess we're making Dred Scott great again.

Kate Shaw

Although we're pretending that we are the ones who actually are correctly interpreting the 14th Amendment and its relationship to Dred Scott. And we have to consider the fact that the Court was one vote shy of erasing a foundational part of Reconstruction in tandem with the Court's already successful efforts to eviscerate many features of the post Civil War constitutional order. So consider Louisiana vs Calais, in which the Court concluded that Congress's powers to enforce the Reconstruction Amendments were was pretty limited and that Congress could not enact a law prohibiting actions that disempowered black citizens by diluting their votes. Also side note is that Coach Kavanaugh's position seems to be that Congress cannot enforce the Reconstruction Amendments by enacting the Voting Rights act, but that Congress can enact laws that enable the Executive, or maybe Congress just outright can rescind birthright citizenship. The incongruity is just mind boggling and is maybe actually the point.

Leah Litman

Allen vs. Milligan is another example of this Court's zeal to water down the Reconstruction Amendments and more general post bellum constitutional order. In Allen, the Court watered down the prohibition on intentional racial discrimination by allowing Alabama to use a set of maps the state had adopted in defiance of the Supreme Court's own decision previously in Allen vs. Milligan. Those were maps that in an earlier stage of the litigation had been deemed discriminatory because they diluted the political power and opportun for black voters.

Kate Shaw

We should also mention in this vein, Mullen vs Doe, where the court went to even greater lengths to blind itself to intentional racial discrimination and therefore apparently to condone it. In Mullen, a majority of the court concluded that the President's vile racist smears of Haitian nationals were not in fact racist. In doing so, it adopted a legal test that would render much of Jim Crow segregation legal. The Court apparently now believes that plaintiffs, and specifically racial minorities can only establish racial discrimination if first it is intentional and second, no other non racial motive might exist for the action they are challenging as racist. This test is virtually impossible to satisfy, which again is I guess the point.

Alyssa Murray

All right, so back to the fear mongering. If you are among the people who think that birthright citizenship is protected and sacrosanct and this was an unalloyed victory with the court standing up for the President and the rule of law, you need to wake up. This is your wake up call. If you think that there is no danger of this court or some other government actor in the future suspending or nullifying birthright citizenship, this is your wake up call. This court has already erased essential parts of Reconstruction. It has, for years, decades, hobbled the Reconstruction Amendments by narrowing Congress's authority under Section 5. In Trump vs Anderson, they basically rendered Section 3 of no Moment and now they're doing it with the rest of the Reconstruction Amendments and in particular this bedrock principle of birthright citizenship that has literally been in place since the colonial period with the one interregnum of Dred Scott that Section 1 of the 14th Amendment was intended to repudiate and all of that, the fact that they are repudiating Reconstruction and that they are doing it with their whole chest, that is what makes this five to four lineup in Trump versus Barbara so terrifying.

Leah Litman

I also wanna take a moment to analogize Barbara and the response to it with another decision, another 5 to 4 decision that reaffirmed a key settled constitutional principle. That decision, Planned Parenthood vs. Casey. Casey, by a 5 to 4 vote, declined to overrule Roe vs. Wade and end the constitutional protections for abortion, even though it did water it down. What happened in the wake of Casey? Progressives and the legal left celebrated. They treated the issue as settled and Casey as a win. Casey definitively resolved this issue for all time. They slipped into the mindset that the court as an institution would always protect rights like the abortion right recognized in Roe. And for their part, conservatives used Roe and then Casey to galvanized and Energized their movement. They doubled down, made their ideological litmus test harsher, and 30 years later overruled Roe.

Kate Shaw

I just want to jump in and say I did that Hassan Minaj podcast. We recorded it like a month ago, but it, it came out last week. But he asked me in the podcast about, like, do you think that birthright citizenship is going to become like a new litmus test for potential SCOTUS nominees? And I was like, I hope that this is the kind of thing where Trump takes a swing at this, loses big, and moves on to like another shiny ob. And I honestly think there is a chance that if this decision had been 90 against him, that might have been the case. 72 may be harder, but 90 certainly, and maybe even 72, but absolutely 5, 4. I now think he was completely right. And, and it will be. And I also think that Judge Ho in the fifth Circuit who we said, I don't know if he's like aged out of consideration. He was like a very early adopter

Alyssa Murray

of this theory despite himself being a naturalized citizen. Correct.

Kate Shaw

So I, I wonder whether that, that puts his odds better than we had assigned them the last time we had

Alyssa Murray

this conversation to that point about, you know, this being the next row. There has been some commentary about how we shouldn't worry about birthright citizenship becoming this next galvanizing issue, because there isn't a bottom up grassroots movement to end or curtail birthright citizenship as there was with Casey and Roe. The movement to overrule Casey and Roe was, was engineered in large part by the Republican Party. It wasn't an organic, grassroots, animated movement. It was created and concocted in much the same way. I think this can be created and concocted. And case in point, if you listen to Fox News, as I know all listeners of this podcast do, you can already see this effort coalescing. So please take a listen to our sofa king. J.D. vance.

Tommy Vietor

This was only a five to four decision, Laura.

Leah Litman

How many times did we hear people

Kate Shaw

say that this was going to go

Alyssa Murray

8 to 1 against the administration?

Tommy Vietor

We made some very compelling arguments. We have the better of the case. We've just got to keep fighting at this.

Alyssa Murray

And this drives home, Laura, why the

Tommy Vietor

midterms are so important because it's the senators who ultimately vote on those Supreme Court justices. Imagine if one of the five justices who made a bad, bad call today, if they left the Supreme Court. We want to make sure we get somebody good on there in the future.

Kate Shaw

I mean, yeah, they certainly think the difference between 9, 0 or 81 and 54 is significant and so do we. So yeah, there's no question they are going all in right now on birthright citizenship. They are trying to turn it into what abortion was as kind of a political galvanizer in the 90s and 2000s. These discussions that have such prominent place in Justice Alito's dissenting opinion of so called birth tourism will I think pretty clearly fuel incremental immigration restrictions. As this movement, like the abortion opposition movement, is rooted in anxieties about demographic change. It builds slowly, but it is clearly going to be a decades long effort to galvanize the end of birthright citizenship. And we know how the story ended in the courts when it came to abortion. And it's just really important that everyone learn the lessons from that.

Alyssa Murray

So I will just add, I think this really reveals the impotency of John Roberts, because in this moment, John Roberts probably wanted to be the Regina George to Donald Trump's Gretchen Wiener, like, stop trying to make birthright citizenship happen. It's not going to happen. But then you have his unruly conservative caucus of men of frat bros basically saying, no, I think we can totally make this happen. And here we are. We should also say something about the speed of this. And Kate, I think you mentioned this in the emergency episode that we did on Trump versus Barbara. They widened the Overton window on this cockamamie theory of limited birthright citizenship, making this completely off the wall theory that was literally birthed by one rando law professor. They took this off the wall theory and made it mainstream in such an astonishing rate of speed. That part, I think is actually the most terrifying thing, like the quickness, the alacrity with which they did this.

Leah Litman

And also for those people who were saying, well, it was only in dissent the Supreme Court reaffirmed birthright citizenship. Have you seen how this Supreme Court treats dissents as the law? They have been using Justice Scalia's dissent in Morrison vs. Olson as the law for decades. And this last term they made a bunch of Scalia, Thomas Rehnquist dissents and whatnot, the law.

Kate Shaw

And those were not even descents for four, for the most part. So yeah, like, the fact that this is a descent is very, very cold comfort.

Alyssa Murray

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Kate Shaw

Okay, so let's move on to the third point that we wanted to start with. And this is probably more of an opening salvo for the terms themes which we're going to transition to next. But you know, it's our podcast. We will take these things in the order that we want. So we need to highlight and remind of the extent to which the Supreme Court is undermining our democracy. And we are not just referring to the chaos it has engendered in the upcoming midterms. That's significant, but that is a small piece of the larger picture. The Court is engaged in a sustained attack on the democratic legitimacy of institutions and elections and also the democratic capacity to govern. And I think our list of evidence in support of this broad thesis is very, very long. So let's tick through some of what SCOTUS did along these lines.

Leah Litman

So the Voting Rights act decision, in tandem with the Court's decisions on racial gerrymandering and intentional racial discrimination, nullified what remains of the nationwide ban on discrimination in voting. As a result, states, especially those in the former Confederacy, raced to redraw districts that would lock black voters out of political power by entrenching often white Republican incumbents and eliminating districts where black voters had the opportunity to elect elect their preferred candidates.

Alyssa Murray

And that's not even all right, so this is the same court that allowed Texas to proceed with what was perhaps one of the most transparent racial gerrymanders in recent memory. And I know listeners, it's been a long term, so we'll catch you up again. This was when the Department of Justice's Division of Civil Wrongs in Harmeet Dillon directed Texas to engage in mid cycle redistricting in order to eliminate majority minority districts in Texas. And specifically they wanted them to get rid of the minority coalition districts where different groups of racial minorities can band together to give themselves greater political opportunities. A three judge district court panel, which included Trump appointees, determined that DOJ had basically laid out on paper, taking notes on a conspiracy, a plan to target these minority coalition districts districts. It seemed like a very cut and dried case of impermissible racial gerrymandering. But this court said, no, don't see it. Don't see it at all. Seems partisan to me, and that's not bad. In fact, that's exactly what we should be doing. It's totally fine. Please proceed. And then this court allowed Alabama to move forward with districts that were, for all intents and purposes, exactly like the districts the court had invalidated three years earlier in Allen versus Milliken. Which is to say that the districts as drawn only created a single majority minority district out of seven possible districts in the state where black voters comprised 25% of the electorate. More troublingly, it was evident that the legislature in Alabama drew the districts to achieve that lopsided result, and the court was okay with it.

Leah Litman

Then there is National Republican senatorial committee versus Federal Election Commission. The campaign finance decision that the court released on the last day, because it was released on the same day as birthright, citizen citizenship and the trans athletes case, it's kind of flown under the radar. But in this case, the court invalidated a federal campaign finance regulation. That's what's known as a coordination limit. The coordination limit prevents individuals who are limited in the amount of money that they can give to candidates from circumventing that restriction by instead coordinating with political parties to donate money in much higher amounts to the parties that the parties then in turn funnel to the candidates. By invalidating that anti coordination regulation, individuals now are effectively freed from the $7,000 limit on individual donations to candidates because they can instead coordinate with the party to channel more than $550,000 to candidates. This will make elections less democratic by once again giving the super rich outsized influence over candidates and officials. And it will benefit Republicans who are lagging behind Democrats in small dollar donations and would prefer if their big donors could simply pour more money into each campaign rather than being hamstrung by limits under this account of the first amendment. Free speech isn't free. It's actually quite costly.

Kate Shaw

I just want to take a beat on the chutzpah of the court. Like the massive amounts of outside money in politics that we sort of live under at this moment are because of their decisions from Citizens United onward. Those are what have led to the state of affairs. And then somehow the court tries to suggest that that is a reason that this law must fall. I think that this is what Rason calls like deregulatory bootstrapping. It's like we do a thing and then that creates some consequence and that gives us an excuse to do another deregulatory thing, and then another, and then another, like, and yet they sort of want to tell us that they're just actually responding appropriately to the circumstances that they are encountering.

Alyssa Murray

It's a race to the bottom, Kate, but it's their race and they're running it, and they're.

Kate Shaw

They're winning it. Unfortunately, the case is just the latest in a string that actually, like, very tangibly undermined democracy by making our institutions more susceptible to corruption. As to just this one, consider the comb effect of the case, this case, nrsc and slaughter, the case about the president's power to fire. Now, the super rich can effectively funnel more than half a million dollars to individual candidates, and the president can fire any independent regulator who might potentially get in the way of the super rich, their corporations, and their interests. So cast your memory back to January 20, 2025, and the array of oligarchs that flanked Trump at his second inauguration. It really does seem like they are getting their money's worth.

Alyssa Murray

Here's another piece of this I think is actually worth commenting on, because this part actually does seem genuinely insane to me. This court acts like it is just sending these decisions out into a vacuum, as opposed to the reality in which we have an administration that is or that appears to be rife with corruption and pay to play expectations. Like, that's the landscape in which they issued this decision on campaign finance. And again, to belabor the point, this week, the New York Times reported, quote, president Trump reaped a stunning windfall in his first year back in the White house, including about 1.4 billion from his family's cryptocurrency businesses. All told, the president pulled in at least 2.2 billion. That compares to a minimum of 622 million his enterprises pulled in for all of 2024 before he returned to the presidency. I don't think anyone has to be reminded that one of the things that has been incredibly deregulated since the second Trump administration started is cryptocurrency. So interesting.

Leah Litman

So is it illegal to be a successful businessman?

Kate Shaw

No, I don't think.

Leah Litman

No. Okay.

Kate Shaw

Who's also the president, right?

Leah Litman

No, no, Exactly. So with that out of the way, let's turn to some additional themes, or what we're actually calling themes. One is the Supreme Court perpetually mimicking the guy with a butterfly meme. You know, the one it seems like the court, and specifically the Republican supermajority, is always asking itself, is this law? But also, the answer to that question seems to be utterly irrelevant, because they also apparently decide not to bother with law at all. Unlike this Court's shadow docket decisions, we are happy to show and tell. So we're going to provide some examples of what we're talking about. Take slaughter. The Court overruled Humphrey's executor and restructured the government, but did not bother to explain the new law of the land and how all of this would actually work. The Court declared that all of the Executive power is vested in the President, and therefore the President has to be able to remove anyone exercising significant executive power, no ifs, ands or quasis about it. John Roberts wrote into the opinion. But then in Slaughter itself, the Court provided some ad hoc exceptions, suggesting that the broad new removal power doesn't apply to adjudicatory bodies within the Executive, such as the Tax Court.

Kate Shaw

But the majority conspicuously said nothing, like nothing at all, about whether the decision called into question the independence of the Civil Service. That is, does the President, who now has the authority to fire the heads of independent agencies, also have the authority to fire civil servants who are hired based on merit, who are permitted to keep their jobs if they perform competently, and who by statute are protected from being summarily removed at the President's whim? These are the people who do the work work of government that impacts all of our lives in countless ways, from food safety to environmental protection to mail delivery to weather. The opinion says literally nothing about whether these members of the Executive branch are also removable at the pleasure of the President, though the decision's logic suggests there's at least a very real chance that they are in previous cases where the Court made these overtures toward unitary executive theory, even if not the full embrace that was reflected in Slaughter.

Alyssa Murray

That's foreplay.

Kate Shaw

It was, yeah, I would say, more foreplay than flirting. It was beyond flirting, but it wasn't the kind of full consummation that Slaughter reflects in just a tip. Earlier encounters. It would at least the Court would at least adopt a conclusory sort of caveat that the Civil Service wasn't implicated in. Its reasoning didn't do that here, and I don't think it's because they didn't think about it. It was also, this is, I think, think to my mind, a little less important in terms of the impact, but also just in terms of the kind of responsible law making, or lack thereof, the Court is engaging in. It wouldn't even tell us whether Humphrey's executor had been overruled already or it was being overruled in Slaughter, you know, seems pretty basic and yet they gave us no clarity.

Alyssa Murray

Well, because, duh, you're supposed to know. Read my mind. Like, that's the Dion Warwick school of originalism. Read my mind. I didn't know what I meant. There's also the fact, Kate, that on the very same day that the court released Slaughter, saying that there's no ifs, ands and quasies about the President's executive power to remove individuals who are the heads of agencies, it also released Trump vs Cook, in which it said everything we said in Slaughter except the Fed. Not the Fed, the Fed, as we have talked about ad nauseam on this podcast, not just this term, but in earlier terms, when they have tried to dismantle certain administrative agencies like the cfpb, for example, they've always made these feints toward the distinctiveness, the uniqueness of the Federal Reserve. And they reiterated these themes in Trump vs Cook, saying that the Fed is a uniquely structured quasi private entity with a distinct historical tradition. And so again, this is me doing the guy with the butterfly meme. Is this quasi? I don't know. Like, is the Fed quasi? And if there are no ifs, ands and quasi's about it, what does that mean for the Fed? And the Cook decision didn't really provide a great answer for it. The chief could not be bothered to explain why the Fed was different from every other independent agency. Besides gesturing with a kind of word salad that he had inserted, and it was now citing from an earlier opinion, Wilcox, that the Fed is just unique. It's a quasi private entity with a distinct historical tradition. But what does that even mean? Like, how? Explain it to me. Like, I mean, show, don't just tell. Like, show us how it is different and tell us how it's different. Do something, but not this. Even Amy Coney Barrett, who I think ordinarily can get in line with some of these things, seemed to be deeply, deeply disturbed about the incongruity between the Slaughter decision and the Cook decision. So she wrote in her dissent, incorporated Cook, quote, the court's holding is in serious tension with Trump versus Slaughter, which we also decide today. How can history support both a categorical rule and a carve out? It's a great question. These are the questions. Indeed it is right up there as a question with, is it racist to describe Haiti as a country where people are poisoning America's blood? I don't know.

Kate Shaw

But can we go back to Barrett and her descent and Cook? It's just part of what is so maddening about her is that she's so close. Right. Like she's asking, she's saying. It seems like there's real tension here. And the obvious next step is slaughter is crazy and wrong. And could, if you could just look around that corner.

Alyssa Murray

No, I think she's like, there's real tension here. Cook is crazy and wrong. Get rid of the black woman too.

Kate Shaw

Right?

Leah Litman

Sure.

Kate Shaw

That's where she comes down because she dissents. But it just feels like the question she's at least identifying suggests that she should be able to get to the right answer as opposed to. To the wrong one.

Leah Litman

But in Cook, the court also could not be bothered to adopt an actual legal test to tell us under what circumstances a president can fire a governor of the Federal Reserve Board under the statute. Instead, the chief declared, quote, we need not fully demarcate the contours of cause today. And followed it up again just by reciting this word salad quote. It is sufficient to observe that any definition of cause must reflect the Federal Reserve's unique historical status and role. And of course, the administration immediately seized on the court's failure to be clear on this point because it is suggesting that it may take another run at trying to fire Federal Reserve Governor Lisa Cook. Love to imperil functional government on the basis of some half baked and yet also very dumb ideas.

Alyssa Murray

Well, Leah, this isn't just about a half baked dumb idea. This is. When we return to Lisa Cook's firing, we'll get to decide if it's permissible or not. I mean, that's what that said to me. Like, it would be in our discretion whether there. It's going to be actual cause here.

Kate Shaw

Yeah, completely. And just kind of back to the, the word salad, which is like the key source of authority. Like his own previous word salad on which Roberts relies in his Cook opinion. It is, we should say, to be fair, it is not just the Chief who does this. So here is what passed for legal analysis in Justice Barrett's majority opinion in Cisco v. Doe, which held that the alien Tort statute does not allow victims, victims of human rights abuses, to sue the companies that allegedly abetted their torture. Barrett wrote, quote, our starting point is Sosa's key insight. The ATS is a jurisdictional statute creating no new causes of action. Put differently, as enacted in 1789, the ATS gave the district courts cognizance of certain causes of action which bespoke a grant of jurisdiction, not power, to mold substantive law. Justice Scalia would have stopped there. Okay, close quote. That's the quote from Sosa. That seems to be the reasoning of the opinion. I feel like what we need there's like, you know, what are the justices in this sort of like whatever the version of originalism they claim to be practicing now is like text, history, tradition. It's also just like their own, like gibberish, word salad precedent. It's not even like the holdings of their previous cases. It's like the musings of their previous cases. Like, that's what our law is made of right now. And it is terrifying.

Alyssa Murray

Well, I think we could also talk about this as a kind of sub theme. I mean, she talks about the sort of, of, you know, adverting to history. They were always talking about history this term. And the theme seemed to be like, history's written by the winners and the winners, that's us, we're going to be the winners here. And they often were just like doing history in the most insane way. Like, is this history, Is this tradition, Is this originalism? So there was Hamani, where we literally had drunk history of the founding frat bros, courtesy of Justice Gorsuch. And then the court apparently was just getting warmed up with Hamani because it really hit its stride with Wolford vs. Lopez dropping new Bruin factors, including one whether the proffered historical analog was anti racist and woke. And if it was racist and unwoke, we definitely can't consider it new bruin factor. And was the historical analog widely accepted and very popular? And if it wasn't, if other people did not cotton onto it and it wasn't wildly popular and get five different prom dates, we can't accept it either.

Leah Litman

It wasn't historical, but it definitely fell into the category of is this law Kind of like the but the Fed thing. And that's Justice Kavanaugh's effort to think through the equal protection question In West Virginia vs. BPJ, the challenge to a state trans sports ban. It's not an exaggeration to say that his reasoning, such as it was boiled down to because sports, the sports context, a phrase that is repeated ad nauseam so many times in this opinion, like, are you there, law? It's me, Brett Kavanaugh. And taken together, it seems that these justices think the law is whatever they the six God kings in robes speak into existence. And I couldn't help but wonder, I say in my Carrie Bradshaw voice, am I the only one who cares about law? But I do wonder, is this laziness or is it a flat?

Alyssa Murray

It can be both.

Kate Shaw

There are still three of them that do.

Leah Litman

Leah.

Kate Shaw

There are still Three of them that do.

Alyssa Murray

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Kate Shaw

Checkout.

Alyssa Murray

Just head over to JonesRoadBeauty.com, use the code strict at checkout. After you purchase, Jones Road will ask you, where'd you hear about our products? Please support strict scrutiny and let them know that we sent you. Let's go on to a second theme. And I think this theme is basically, let's cuck Congress or, or separately, is Congress a cuck? The answer is always yes. So in an effort to complement its expansion of presidential authority, the Court also made sure to completely emasculate Congress. Although, to be fair to the Court, Congress was doing a pretty good job of emasculating itself. But this Court effort to further emasculate Congress came across very clearly in the birthright citizenship case, with one exception. We'll get to it. As we discussed in our emergency episode. As Leah noted in that episode, it wasn't enough for the Court to say what the President can do. It also said what Congress cannot do. Or sometimes, and again, implausibly here, what Congress absolutely did not do. And that's important because at the same time, the Court was empowering itself and the President, or at least this President, it is incapacitating Congress in a number of different ways. And empowering less democratic branches is always a recipe for entrenched minority rule. Maybe it comes through oligarchy. Maybe it comes through kakistocracy. Maybe it comes through kleptocracy. Maybe it's through aristocracy. Who knows? It's all unclear. But we do know that when those branches are empowered, nothing good happens. So, yeah.

Kate Shaw

All right, so let's take stock of some of the things that the Court has said that Congress cannot do.

Leah Litman

Do.

Kate Shaw

First, Congress can't make spending clause statutes enforceable against the Officials who carry them out. The officials have to opt in to the statutory scheme. Sounds very efficient and normal, which is to say totally unworkable and just going to mean spending. Spending clause statutes like just actually can't be enforced. Okay. Second, while Congress is permitted.

Leah Litman

Right.

Kate Shaw

They're allowed to pass laws. Court hasn't yet said they can't do that, but is permitted to enact legislation under the Reconstruction Amendment Amendments. When that legislation departs from the Court's understanding of what the Reconstruction Amendments require, Congress actually can't legislate. So, for example, if Scota says the Reconstruction Amendments prohibit only intentional discrimination, then Congress can't bar unintentional discrimination, even though Congress in the actual text of the Reconstruction Amendments, is given the power to enforce their provisions. There's one.

Alyssa Murray

There's one exception to this, Kate, and that has to do with second section three of the 14th amendment, where the court's understanding of section three was very different from everyone else, but it was actually a congressionally empowering understanding where Congress was empowered to enact legislation to disqualify Donald Trump from the election. And they hadn't done that. So, you know, thank you.

Kate Shaw

That fair correction. Yes, yes, I want to be fair. So that one was about handing tons of authority to Congress.

Leah Litman

And as you said earlier, Kate, in fairness to Brett Kavanaugh, he also thinks Congress can rescind the first sentence of the 14th Amendment.

Kate Shaw

So Congress actually.

Alyssa Murray

Okay, that was the exception I was

Kate Shaw

referring to earlier, that the court actually did embrace this term. And yet there were many, many places where they seemed really to curtail congressional authority. Just to name the other big one, which I've already mentioned, but to make it explicit in this context, Congress can create agencies, but. But it cannot impose conditions of the removal of agency officials that might make these agencies independent, really, to any degree of the President.

Leah Litman

I just had a thought, which is we are being told over and over how this Supreme Court is actually empowering Congress. And I just wonder if they have adopted their approach to sex discrimination to Congress. They are putting Congress on a pedestal, but actually a cage. They are destroying Congress in order to save it, et cetera, et cetera. Does the analogy work?

Alyssa Murray

Protect.

Kate Shaw

I talk a lot about how to, like, explain what is so insanely internally inconsistent about this sort of faux Congress empowering Congress, disempowering Supreme Court. And I think pedestal cage actually is a very good candidate.

Alyssa Murray

This is the Mueller vision of congressional authority.

Leah Litman

Yes, that's reference to Mueller vs Oregon, the case that upheld a minimum wage law protecting women. But we're not even done listing all the things the Court told Congress it can't do when it comes to campaign finance. Congress can adopt anti evasion, anti circumvention laws to ensure the integrity of other limitations it did enact. And who could forget how? Earlier this year, the Court in the United States Agency for International Development case also suggested that Congress couldn't really enforce course at least some of its appropriations decisions against the President. And so at the same time, the court is fashioning an unaccountable presidency. A President who can't be subject to criminal laws, at least for official acts, a President who can fire officials in violation of federal law. The court is also disabling the branch that could check the President. They simultaneously rendered various congressional laws not real laws in the sense that the laws aren't enforceable against the executive branch.

Alyssa Murray

In addition to the spending clause statutes that we just mentioned that Leah just took through, the Court also rendered unenforceable various protections for immigrants that Congress had created. So these were protections that limited actions that the Executive could undertake. For example, Congress passed laws requiring certain protocols when the executive seeks to rescind, say temporary protected statuses. Now the court has concluded in Mullen v. Doe that those limits, limits aren't actually reviewable by a court, which means that they aren't really enforceable in a court. So another example is the court's treatment of the laws that protect lawful permanent residents entry and admission into the country. Despite the fact that Congress wrote a statute that included those protections, this court decided that those protections don't really apply at the border. And instead what does apply is the discretion of executive officials to decide whether or not or not the LPR has engaged in a crime of moral turpitude. And on and on and on. Other laws have giant truck size loopholes that we think are likely to be exploited going forward. I think it's pretty sure that they will be exploited going forward. So take for example the asylum protections that Congress has enshrined in law. Apparently those statutes don't apply when the Executive decides decides to create workarounds to them, like for example, a metering policy that effectively blocks people from crossing the border into the United States. In those situations, they're not really in the United States, therefore those protections don't apply.

Leah Litman

Another theme is the importance of timing. That is the time frame on which the court agrees to take up these issues and decide them. As with most things at 1 First street, the decisions involving timing are often at the core court's discretion where they make all the rules. And one thing is it is a choice to empower presidents, especially now with this president, and it's also a choice to do so on an expedited schedule. They took Trump versus Slaughter, where the court, in a shadow docket ruling, allowed the president to fire a Federal Trade Commission commissioner and then granted cert before judgment in the case so they could decide the issue before it made its way to the court in the normal appellate process. After the Court of Appeals did so, the court also granted cert before judgment in the temporary protected status cases and more generally. It's just curious that they seem unable to recognize that we have a problem right now with executive power. And they have justified reversing previous decisions and attacking previous theories on the ground that those theories produce horrible consequences. For example, when they explain why they have adopted Justice Scalia's dissenting opinion in Morrison vs Olson, they talk about the fact how Ken Starr was Justice Scalia's parade of horribles walking down 1600 Pennsylvania Avenue. And I just want to ask, do you not recognize that all of the parade of horribles about the unitary executive theory has been constantly on display for the last 18 months?

Kate Shaw

There is no sign that they're recognizing it at all.

Alyssa Murray

That's the history and tradition part.

Kate Shaw

Pretty wild. But back to timing. The court manipulates timing, I think, in a bunch of different directions. Consider Calais, where the court could have decided the case on narrower grounds when it first heard it argued back in 2025. Instead, it asked for briefing on the much broader question of whether the legislative districts at issue violated the Constitution and then heard arguments this past fall and waited until April of this year to decide the case when primary elections were just weeks away in many places like that was a choice.

Alyssa Murray

Well, not just a choice. Nobody asked those questions. The court asked those questions. So, I mean, not just manipulating the

Leah Litman

timing, just asking questions. Melissa, he's just asking questions.

Kate Shaw

In addition to the timing manipulation, there is also the problem of the Court deciding issues that are not live. That was, I think, the case in the asylum case where DHS had ended its policy of metering asylum seekers at the border. The policy change likely should have rendered the case moot, but the Court wanted to get to. It was eager to announce that the administration could use this policy if it wanted to, and so it ruled anyway.

Alyssa Murray

Another issue involves the Court issuing rulings when the factual record below remains under developed or even undeveloped. In some cases. This happened In West Virginia vs. BPJ, the trans athletes case case. The Court decided the question of whether the West Virginia Ban on trans athletes violated the equal protection clause of the 14th Amendment while there was still an outstanding factual dispute in the litigation that had not yet been resolved. I will say just one more thing about the court's timing. It's not just about when they decide cases. It also is about what cases they decide to grant cert on. So they move very quickly, I think, in granting cert on certain cases. I think this was more evident last term where we saw them take a bunch of cases and then dig some of them. There are a lot of digs last term. I think there's only one dig this term. But it is relevant and I think it sort of is one of the consequences of this super majority. They only need four. They clearly have four for almost everything. But I don't know that they vet as closely the vehicles that they are accepting as they pursue their agenda such that it is.

Leah Litman

The court also manipulates timing in ways that I think bank are designed to help it bolster its own agenda and standing. So it issued Slaughter a massive triumph for the President, together with other decisions that were less favorable to Trump, including a denial of certiorari in Trump's appeal of the E. Jean Carroll judgment, the decision in Cook, and the decision in Watson where it refused to change the rules on counting of mail, in absentee ballots, and on Cook itself. They put Cook on their oral argument calendar when it arrived at the court as an application of a statement day. And in that decision, the justices didn't even prohibit the President from later firing Cook. Based on this, Bill Pulte concocted mortgage fraud, fraud theory. They also packed so many decisions into the final week, it is virtually impossible to cover the significance of all of them in any finite period. They issued Birthright on the final day, going out with the bang. And of course, they were the ones who created the circumstances necessitating Birthright to be brought back to them by refusing to decide it in the case last year on nationwide injunctions. And who also during that oral argument demanded that the federal government bring the case back to them. As you can hear here, when you

Alyssa Murray

lose one of those, do you intend

Kate Shaw

to seek cert if we lose?

Leah Litman

Yes, absolutely. And just one more thought on timing, the extent to which they are so insistent on injecting all of their own views now and taking all of these issues, issues now, they can't wait for litigation to unfold. It has to happen immediately. And they are just deciding so many of these big issues. It's wild. Yeah.

Kate Shaw

Okay, let's move on to theme. I Think it's four now, and that is trying to remedy racial discrimination and exclusion is the real racism. By contrast, real racism is not racism. So this is a culmination. It could be xenophobia, it could be partisanship, it could be a few other things. But I mean, I, I do think that, that this is the culmination of sort of developments we've seen in recent terms. But I also think that things went significantly further in this term than they ever had before. And I want to provide a little bit of context, which is that once upon a time there were justices on the Supreme Court who took the position, you know, very explicitly that in evaluating race conscious government action, it mattered a lot what the reason for that action was. And it should be scrutinized differently depending on what the reason for that action was. So Justice Stevens has this pretty famous dissent in a case called Adoran, which in which he says explicitly there's a world of difference between a government program that makes race conscious decisions to include members of a minority race that has long been excluded by discrimination, and a program that makes race conscious decisions to exclude members of a disfavored race. Okay, so we might look at those two things differently. Justice Thurgood Marshall wrote very similarly in the Bakke case. Quote, it is because of a legacy of unequal treatment that we must now permit the institutions of, of this society to give consideration to race in making decisions about who will hold positions of influence, affluence and prestige in America. Okay, obviously sounds like this is like they're speaking from like some distant, like, galaxy and era, but that position did not carry the day. And this Court, in recent terms, purported to embrace the idea of a colorblind Constitution. It doesn't matter why you're taking race conscious action. It is all subject to equally searching scrutiny. Okay, that was apparently the rule until this term. This term, I think the Court basically went beyond race blind and fully embraced the inverse of the position that Justice Marshall and Justice Stevens had advocated. In the quotes I just read, they seem to enshrine into the law basically the view that some government uses of race should be scrutinized more skeptically. Only now it is measures designed to facilitate the voting power of racial minorities that should be viewed more skeptically. And actions taken to injure or disadvantage on the basis of race get a very light form of scrutiny, well, depending

Alyssa Murray

on who the victims of said racism are. So I think that's an important caveat. But to your point, Kate, I think Louisiana vs. Kelly bears this out. So this is where the districts were drawn to facilitate minority participation and political power. The court decided to take a very long, very skeptical look because must police the racism and ultimately the districts fall because you know what? That was a problem. That was the racism. The actual drawing of the maps in the first instance, that was just partisanship. That is just fine. In a follow and case Allen vs. Milligan, same thing. Ditto the shadow docket order in the New York case Malleotakis, where the court struck down a New York map on the grounds that it was drawn to protect the police political power of black voters. But in cases where the government action is race conscious in ways that adversely impact racial minorities, the scrutiny is much, much lighter. So in the Texas gerrymandering case, for example, despite the fact that a three judge court which included Trump appointees found that the new map was drawn on the basis of race, specifically to eliminate minority coalition districts, the court said, I think it's just partisanship here. And Justice Alito in that case wrote separately to say but actually it was quote, partisan advantage, pure and simple. He knows. He knows because he can tell racism when he sees it. Or can he? Because in the TPS case where the government action was one that would have a devastating effect on hundreds of thousands of Haitian nationals, and in the face of the administration's rapid rank racism around Haitian nationals and the country of Haiti, the court basically said this is just the rough and tumble of politics. Or maybe it's xenophobia, but it definitely isn't racism. Clock it. Strict scrutiny is brought to you by LifePro. Guess what, folks? You know what everyone's talking about these days. It's not the Supreme Court in court reform. Well, not all the time anyway. Way lots of people are also talking about lymphatic drainage. I would like to do some lymphatic drainage on this court personally. But here's what I'm hearing about lymphatic drainage. Influencers are always talking about debloating. At first it sounded kind of like another random wellness trend, and I'm not immune to those. But then when you listen and you hear all of the research, you realize that a lot of people are dealing with a lot of the same things that you may be dealing with, like puffiness and swelling and a heavy sluggish feeling or stiffness in your joints. And that is why I have become newly obsessed with the LifePro Waver vibration plate. The wellness world is charging hundreds of dollars for manual lymphatic drainage sessions, but this is a one time investment that does the same thing at home anytime you want. It's not just a theory. Clinical studies have shown that vibration therapy makes manual lymphatic drainage work better, and there's actual science behind why it works. I use my LifePro waver vibration plate after I work out. LifePro is America's number one vibration plate brand with over 2.5 million people already using LifePro and they offer risk free 30 day returns and a lifetime warranty so you know that they stand behind their products and for a limited time, strict scrutiny. Listeners can get $20 off the waver vibration plate plus free shipping with code strict@lifeprofitness.com that's lifeprofitness.com using code strict for $20 off and after your purchase they'll ask you where you heard about them. Let them know you support strict scrutiny and tell them that we sent you

Tommy Vietor

hey, it's Tommy from Pot Save America and Pot Save the world. Last year, 2,500 people joined us at CrookedCon for conversations with some of the smartest organizers, least annoying politicians and most interesting voices in politics. Politics to talk about how to fix this mess. Even President Obama made a surprise appearance. We're doing it all again November 5th to 7th in Washington D.C. with even more podcasts, panels and workshops. Plus there'll be drinks which we'll need after the midterms no matter which way they go. Get tickets@crookedcon.com if you're a friend of the pod, you get a discount too. See you there.

Leah Litman

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Alyssa Murray

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Kate Shaw

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Leah Litman

Fifth theme which is going to overlap with some of what we have already said with the whole episode we made in individual episodes but still important to spend a few minutes on. And that is the galling hypocrisy on display this term. This is a non exhaustive list of the wild internal contradictions just involving opinions from this term. Justice Alito in Calais wrote for the court that drawing the second Black Opportunity District in Louisiana was race based discrimination that the Constitution forbids. Concurring in the shadow docket case Malliotakis, which Melissa just mentioned, he said it was super racist to draw a congressional map for the express purpose of ensuring that minority voters are able to elect the candidate of their choice. He even elaborated that that was unadorned racial discrimination and inherently odious activity that violates the 14th Amendment's equal protection clause. And then in Allen vs. Milligan, court overrode a lower court opinion in that quote, drawing every inference in the legislature's favor, found that the record compelled the conclusion that the state intentionally entrenched the racial discrimination in drawing its legislative districts. But again, in the TBS cases, Alito held that the president's description of Haiti as a shithole country, which is filthy, dirty and disgusting, and his accusations that Haitians, among other things, were poisoning the blood of our country, were, according to Justice Alito, not overtly racial and all express policy views that could rest on race neutral justifications.

Alyssa Murray

So that's a new theory of constitutional interpretation. It's called saying the N word with a hard R. Once you do that, then you might be in the overtly racial category. Maybe, possibly, maybe he might try to

Kate Shaw

find his way out of it there. You know, the list of examples of hypocrisy is long, but here's a few others. First, also involving Justice Alito in the Hawaii case Wolford vs Lopez, Alito really kind of of like disdainfully dismissed the relevance of what he called the spirit of aloha to the second Amendment. He wrote local attitudes can neither shrink nor inflate the meaning of fundamental bill of Rights guarantees that apply to the states through the 14th Amendment. But of course, in Trump versus Barbara, the birthright citizenship case, he had no trouble telling us that the advent of what he kept referring to as, quote, birth tourism changed the meaning of the 14th Amendment. Obviously, you know, we've already talked about this. Robert's insistence in Slaughter that the president had has full ability to fire, no ifs, ands or quasis. But then his reliance on this bespoke exception that's all about the quasi to carve the fed out from that. Okay, here's a Kavanaugh sort of example. His learning resources descent, which Melissa, I think you've rightly focused on in a couple of conversations, was largely about his view that there is a foreign affairs exception to the major questions doctrine, but also just took a pretty broad, maybe unlimited view of presidential power, maybe only in the foreign affairs context, maybe broadly. But then he had no problem joining the Cook majority opinion ruling against the President's power to fire. And then also on Kavanaugh, this is a terminological point, but I think an important one. Do you guys remember that during the BPJ oral argument, he used the terms transgender women, transgender girls, to refer to those impacted by the Idaho and West Virginia bans at issue. So fast forward to his authorship of the opinion in that case. And he uses biological males again and again. I, I felt like I was being stabbed in the ear as I read it. And I can only imagine how, how appalling that was to the plaintiffs in the case, to individuals who are, who are themselves or are parents of trans athletes. Like, it was horrifying and it was a choice. He understood how to use, like, baseline level of respect in language, and he chose not to do that in this opinion.

Alyssa Murray

Well, I, I think the galling hypocrisy of Brett Kavanaugh relates directly to his unwavering need to be liked by all sides. So at oral argument where anyone could be listening, he's using preferred terminology, like maybe more progressive terminology in the opinion, which is likely to be read only by dyed in the wool people who may have real feelings about it. He uses these other terms. I will also say I am now thinking about his dissent and learning resources in light of the concurrence, descent and birthright citizenship. And this is such a play. To be the Chief justice, to be the next chief Justice. This is Brett Kavanaugh. Like, pick me, pick me. I will give you unlimited presidential power, not just in the domestic arena, but also in foreign affairs. I will give it all to you. Like, that's what this is.

Kate Shaw

I think you're probably right.

Leah Litman

And then one last example is the chief going back and forth on whether Confederate sympathizer and virulent racist Andrew Johnson is a good guy and whether we should definitely model government around Johnson's views. Slaughter said one thing. Barbara suggested another.

Alyssa Murray

I mean, you know, six, seven on Andrew Johnson.

Kate Shaw

Yeah.

Alyssa Murray

One last theme from me, this one I'm calling blinkering reality. And it's kind of a doozy. The way this court and many court watchers blinker reality really sets my teeth on edge. And I'm going to say that this blinkering of reality works in two ways. The first is the way that court watchers try to sanewash what the court is doing. So this I think came across most clearly in the birthright citizenship case and the response to it. So many people, both in the media and court watchers who have podcasts and whatnot or, you know, work in court adjacent milieu's were all talking about how this was a 6 to 3 decision. It was a 6 to 3 decision. I was actually on a panel with someone, someone who accused me of fear mongering Because I kept insisting that it was a 5 to 4 decision and she kept saying that it was 6 to 3. So that's sanewashing. This is a 5 to 4 decision. It's a real problem. The 6 to 3, whatever, that's a facade, a Potemkin village. The real stuff is behind that 5, 4 decision. I also think this blinkering of reality works in another way and a more invidious way, which is to say that both the court and some of these court watchers seem stubbornly blind to the environment in which these decisions come. So the trans athletes cases, for example, it is a relatively modest decision, all things considered, but it is going to have a maximal impact because it's going to be harnessed by this administration to prosecute the campaign against trans people. So the fact that the court can't see what is going to happen, especially when they're great exemplars. I mean, SFFA has been harnessed and ridden like Seabiscuit to dismantle dei, even though it says nothing about DEI in private context. So it would be great for the court to kind of acknowledge what the environment actually looks like. And I think we are in an environment where we can no longer take the court on its own terms. We have to understand their decisions in the context of a landscape, which is insane, where there is no presumption of regularity. And I just wish the court and other court watchers, not just washers, although they are washing. I wish they would grapple with that, too.

Kate Shaw

The court watchers and the sanewashers.

Leah Litman

Yes, yes, yes.

Alyssa Murray

The court washers who are sanewashing the court.

Leah Litman

Exactly. Okay, this is getting a little bleak. Can I ask you two to play a quick game with me just to lighten it up a little?

Kate Shaw

Absolutely.

Leah Litman

Okay, I'm going to ask you to blind rank several explanations for what has happened to Sam Alito's brain besides being pickled by marinating in Fox News. So I'm going to give you a reason. I'm going to give you SAM 7. And you have to pick what number it is before you know the others. Okay.

Alyssa Murray

Okay.

Leah Litman

Remembering them. Yes.

Kate Shaw

I wish I had a cocktail.

Leah Litman

One is most likely. Seven is least likely. Okay, so very first explanation. What has happened to Sam Alito's brain? The same thing that happened to Mitch McConnell's chin.

Alyssa Murray

That's very specific.

Kate Shaw

Six or seven, I would say.

Leah Litman

Okay, five. Six. Five. Okay, six. All right, we'll split the difference. Exactly. Okay. Same things that happened to Mitch McConnell's chin. Number six. Next reason it was a failed experiment by the Heritage Foundation. Four.

Kate Shaw

Three. I'll go. We can do four.

Leah Litman

Okay. Failed experiment by Heritage Foundation. Don't worry. I'll read you the total list at the end. Next explanation. It was a successful experiment by the Heritage Foundation.

Kate Shaw

Two, more likely. Yeah. Two.

Leah Litman

Okay. You want that at two? Okay.

Kate Shaw

Okay.

Alyssa Murray

Three. We can do three.

Kate Shaw

Let's either do which one.

Alyssa Murray

What do you think, Kate?

Kate Shaw

It seems like a pretty good theory to me.

Alyssa Murray

Okay.

Kate Shaw

I'm good.

Leah Litman

We don't.

Alyssa Murray

I don't know. We don't know what the other theories are. There could be.

Tommy Vietor

No, we don't.

Leah Litman

That's why it's always the danger. Okay, we went with two. Successful experiment by the Heritage Foundation. Next one. Flag induced homophobic dementia.

Alyssa Murray

Could be one.

Kate Shaw

I do like that one. I mean, I don't like it. I think it's, you know, has. Has potential explanatory power.

Leah Litman

One, Three, five, and seven are what you have left.

Alyssa Murray

I say five.

Kate Shaw

I'm good with either three or five. Okay, we'll do five.

Leah Litman

Okay.

Alyssa Murray

Because I. I just don't know what else is coming.

Kate Shaw

I know.

Leah Litman

Okay, so. Okay, next one. January 7th. 7th.

Alyssa Murray

That radicalized him

Leah Litman

when the coup didn't work. One, three, or seven.

Alyssa Murray

I want to say one, but I don't know. This is so hard. 3. What do you think, Kate?

Kate Shaw

Yeah, well, let's save ourselves for potentially something better coming.

Alyssa Murray

But.

Kate Shaw

But three. Yeah, it's. It's.

Leah Litman

This is.

Kate Shaw

This is good.

Leah Litman

Okay.

Alyssa Murray

I love saving yourself for something better. Coming is just like, how we feel about this court generally.

Kate Shaw

It keeps not coming.

Leah Litman

Okay, second to last reason to fill in what happened to Sam Alito's brain. A wife swap with Clarence Thomas gone wrong.

Alyssa Murray

Seven.

Kate Shaw

Okay.

Alyssa Murray

Seven.

Leah Litman

Okay.

Alyssa Murray

Because Clarence Thomas can see racism. That's the problem. That's not it.

Leah Litman

Right, final one. This is what you've chosen to rank. Number one. Oh, no, nothing. He's always been like this.

Kate Shaw

Yeah, we were right. I like that. I think. I think we played our cards pretty well.

Leah Litman

Okay, so I will now read a list in order of the most likely explanations for what has happened to Sam Alito's brain besides being pickled by marinating in fox news. Number one. Nothing. He's always been that way. Number two, a successful experiment by the Heritage Foundation. Number three. January 7th. Number four, a failed experiment by the Heritage Foundation. Number five, flag induced homophobic dementia. Number six, whatever happened to Mitch McConnell's chin. And seven, a wife swap with Clarence Thomas gone wrong.

Alyssa Murray

I would only change two of those on. I would. I would have put gin. On reflection, knowing what all the choices were, I would have put January 7th second. And success, successful experiment third. And I would have swapped Mitch McConnell's chin. Six and seven. And.

Kate Shaw

Yeah, six and seven. Yeah.

Leah Litman

Yeah.

Kate Shaw

But I think. But I think very well. I think we did pretty well.

Alyssa Murray

I think we did a great job.

Kate Shaw

He's always been this way.

Leah Litman

Yeah.

Kate Shaw

Is regrettably.

Leah Litman

A few. A few other trends. We just wanted to note now that we injected some levity. One is a trend that was raised by ProPublica, which found that this term, quote, the Supreme Court passed an important milestone. For the first time, it decided more cases by secret ballot and with few signed opinions. That is on the shadow docket than it did for cases argued in open court.

Alyssa Murray

Can we have a round of applause for a lack of transparency?

Leah Litman

Yeah.

Kate Shaw

Can we have a round of applause for our friend, the great Steve Laudock, who just stays on this beat. The court would like us to think, and I do think that in the later part of the year, they have, you know, in terms of the term, they have slowed down. They have done a lot less, like, enormously destabilizing stuff on the shadow docket, but over the course of the term, like, this was a huge part of what they did. And it's just important not to let them memory hold that.

Alyssa Murray

Okay.

Kate Shaw

The next sort of thing we wanted to mention was about this kind of subtle but important feature of Supreme Court opinions, which is whether they do or do not respectfully dissent. Right. Whether they modify their announcement of their dissent with the term respectfully. And our amazing intern Jordan actually took a look at the use, or lack thereof, of respectfully in opinions this term and found that the Democratic appointees only omitted respectfully or with respect from their dissents once all term, which is Kagan's emphatic dissent in Calais. Meanwhile, Alito withheld his respects twice, once kind of unexpectedly in RICO versus United States, which is a case we definitely haven't talked about on this term. Recap. Because it wasn't one of the biggest cases of the term affirm. But he solo dissented and ended simply with, I would therefore affirm. Was he, like, trying to make a point of how upset he was or did he just kind of forget? I have no idea. But he definitely didn't accidentally forget his respectfully in Chatri versus United States, which is this big fourth Amendment case he was big mad about. And he ended his introduction to his dissent with, quote, I cannot support this irresponsible escapade. And he concluded his full opinion with today's decision, all but guaranteed guarantees that we will be cleaning up debris for the foreseeable future. Both of those would be great T shirts.

Alyssa Murray

I, too, cannot support this irresponsible escapade,

Kate Shaw

sir, or we will be cleaning up debris for the foreseeable future. I mean, all so great listeners, if

Alyssa Murray

you are down for a shirt that says, I cannot support this irresponsible escapade with just a picture, the Supreme Court below, please let us know.

Leah Litman

No, yeah, yeah, yeah, yeah, yeah.

Kate Shaw

I would wear that for what it's worth.

Alyssa Murray

All right, let's do a lightning round very quickly. Best descent of the term. You first, Leah Littman.

Leah Litman

I refuse to just name one. So I will say Justice Jackson's in Landor on rendering public benefit statutes, spending clause statutes unenforceable, or FS credit, where she did a full throated defense of something other than textualism. Justice Kagan's dissents in Mullen v. Doe, the TPS case, or Louisiana v. Calais, and Justice Sotomayor's dissent in Allen vs. Milligan or Al O Torlotto. I just think those were all phenomenal writings that really met the moment, just in various ways. I did want to insert another one just so people understood I was being fair and balanced. And I wanted to nominate for best separate writing Justice Kavanaugh's concurrent occurrence in Cook. Why? It's because he admitted in Cook. We have joked about how the explanation in Cook is but the economy, but my stock portfolio, but my emotional support billionaires. And he writes, quote, I agree with the court that we should not leave open the question whether the Federal Reserve can remain an independent agency in the wake of slaughter. Even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the president could immediately remove multiple governors at will, as well as turmoil in the US and world economies. I would not risk destabilizing the US Economy. Thank you, Brett. Thank you.

Kate Shaw

I do think you have to give him credit for the candor. Right. Like that is what is motivating me

Leah Litman

and I won't pretend otherwise. What he was doing.

Kate Shaw

Unclear, right? Very unclear. Okay, so those are all great picks. I am going to mention sort of of a deep cut. But Justice Jackson's dissent in Bost vs. Illinois, which goes back to earlier in the term, and it was kind of this, like, random candidate standing case, but it was excellent. I think it was for her and Sotomayor, but not Kagan. And it just had like some pretty profound, like, meditation on whether rights to participate in sort of democracy is really something candidates or really the voters actually, like, should be able to, like, invoke the jurisdiction the federal courts to protect. And I thought it was really profound and. And sort of connected to some of her writing, actually, in dissent in the Trump versus United States immunity case from two years ago. Anyway, so those. I thought. I agree. Sotomayor had a ton of really sort of banger dissents, in particular in the immigration cases that you already mentioned, Leah. I also thought she had a great dissent in Slaughter, which I was very surprised, honestly, that Kagan did not get that one or write separately. She is, like, dissented in the court's really big recent cases about presidential removal power and kind of, you know, institutional structure kinds of questions. But Sotomayor was great.

Alyssa Murray

Yeah. So my choice for the best dissent is really, actually, I think technically a concurrence. It was KBJ's concurrence in the birthright citizenship case, but it is a descent to Clarence Thomas, to his existence, not

Leah Litman

to his writing, to him, I think. And I think you're onto something.

Alyssa Murray

I do. I mean, I do kind of love it when. And she sort of, like, makes clear to him, like, no, we're not gonna do it this way. Like, you're not the only black person on this court. We're gonna. Here's some real diversity of thought, and we're gonna do it this way. So I loved when she really took it to him, like, hey, tell me more about the 14th amendment being race conscious. Like, let's talk about it again in some other context, shall we? Just bang, banger. And honestly, I read the concurrence in that kind of voice, like, hey, playboy, what are we doing here?

Kate Shaw

Oh, okay. All right. It totally reminded me of you, Melissa, predicting when she joined the court, that they were going to clash. And it was like the kind of. The most intense of their. I mean, obviously, as well in sffa, but this was even kind of more pointed, the sort of joining issue. And also just like, like, obviously, I guess this is what we're going to think. But, like, to my mind, it wasn't a close question who prevailed. When you look at the full sweep of his jurisprudence, like, he looks insane and ridiculous to like to say this is. We're going to.

Alyssa Murray

You're stealing my thunder.

Leah Litman

You're stealing my thunder in the US Reports.

Kate Shaw

Yeah, that's great.

Leah Litman

Okay, next category. Under the radar. Worst opinion could be majority concurrence or dissemination.

Kate Shaw

Okay. So, yeah, I actually did think that kind of the Kavanaugh in learning resources,

Alyssa Murray

the Tariffs case, Curtis Wright 2.0.

Kate Shaw

Yes. And he also brought that energy to his majority opinion in ExxonMobil, the Cuba expropriation case. But it was just a pretty, you know, I don't know where the rest of the court is going to be in like the kind of big future executive power cases. But it scares me that Kavanaugh is on the court with the vision of the presidency that he has. And I thought that it was really on display in his dissent in the Tariffs case. And obviously Trump noticed it. He was like, atta boy. And I don't think it was an accident that Kavanaugh wrote something that was going to get him noticed by Trump. And you know, as Melissa already said, I think it is pretty clear he would like to be the chief someday. I don't know when he hopes that will materialize. But I really fear in the same way that watching Todd Blanche audition to get the actual job of Attorney General has been wildly corrosive to the the rule of law, I worry that we're going to see something similar play out with Brett Kavanaugh.

Leah Litman

Get therapy. Right? Like, you do not need to turn your job as a Supreme Court justice into a popularity contest for a pick me. Okay. Just as Sam Alito cannot support the irresponsible escapade that is Fourth Amendment rights, I cannot support the irresponsible escapade of listing only one under the radar worst opinion. And so here are my nominees. Justice Kavanaugh writings in both Barbara, the birthright citizenship case and bpj, the trans bans case. So in Barbara, this is going to be a little in the weeds, but it was just so dumb it blew my mind. So he writes that the Constitution should be applied in ways where you apply the underlying principle to new factual circumstances. And it's like, okay, fair enough. But originalists do that by first identifying what's called the semantic substantive content of the underlying provision. He never does that. He just says, and I'm going to go ahead and identify free floating exceptions without telling us what principle he is applying that is in the text. Okay, then there's bpj. Both of these writings are both dumb and evil. And so I wanted to highlight one particular quote in BPJ where toward the end of his opinion he writes, quote, no student athlete on either side of the issue, whether a biological, female or transgender deserves to be ostracized or vilified. End quote. This is peak. There are good people on both sides. Like, you need to also consider the fact that people discriminating against trans people are being discriminated against and are being called out for discrimination. It just encapsulates that under the radar Trump versus or the previous shadow docket decision where they allowed the Trump administration to move forward with requiring State Department to issue passports that reflect sex assigned at birth. Circular logic. Just horrific.

Alyssa Murray

We talk about this in our Scarmetti paper.

Leah Litman

Yes, Kate, and I do. Yeah, yeah, yeah. So I won't go on there, but did want to recall that one. And then Justice Thomas's separate writing in Al Otro Lado where he hypothesizes that even if Congress hadn't authorized the president to to decline to admit asylum seekers under certain circumstances by blocking them from crossing the border, maybe the president could just do that anyway.

Alyssa Murray

All right, those are all great. So mine might be slightly surprising, maybe not just depending on how well you know me. I really hated Justice Thomas's separate writing in Hamani where he's again, as you said in an earlier episode, Leah Jonesing for some Commerce clause came in case you didn't know, listeners, this court and earlier courts, the Rehnquist Court really did a number on the Commerce Clause. So we basically kind of whittled that down already, but not enough, it seems, for Justice Thomas, who wants to take us all the way back to EC Knight, which is a case from the Gilded Age in which they took a very formalist understanding of commerce effectively to eliminate any prospect of federal regulation of the economy and markets and production. So Justice Thomas, again, like he is so instrumental about just pursuing his own pet projects. And there was no this was just not necessary here. But he put it out there so it'll get farmed off to the 5th Circuit to be husbanded into some kind of usable theory to further dismantle the prospect of government regulation. So good on him. I will also say Neil Gorsuch's concurrence in the Learning Resources case, that's a good pull. Fucking banger, right? I will just say John Roberts wrote the majority opinion. It's actually a very spare majority opinion, kind of gets through it. He does advert to the Major Questions doctrine. Note that Justice Kagan says that case could have been decided as a straightforward statutory interpretation question. No need to get into the Major Questions doctrine. That is your tell that the real winner in Learning Resources was the court, which got to double down on the Major Questions doctrine. But that win didn't seem to be enough for Neil Gorsuch, who had to write separately to explain why the Major Questions doctrine was such a great idea. And I'm not Sure. He succeeds in vindicating the Major Questions doctrine. He does succeed in reminding me of why I don't like him.

Leah Litman

I just want to remind our listeners that in a rejoinder to that separate writing, Kagan had one of the more savage footnotes where she. She accused him of suggesting that she was actually applying the Major Questions doctrine and said something like, given how strong he wants there to be converts to Major Questions, I almost regret to inform him that I am not one. It was just.

Kate Shaw

Yeah, I can't believe that was this term. I know. I feel like that was so long ago. It's been a lifetime. Yeah, okay. But it was like, what, February? My God.

Leah Litman

Okay, so this. This recap is approaching a lifetime. So we should now switch to just discussing some summer plans for the podcast, just so you know what to expect. Obviously, we are still going to be in your ear holes with the court, not regularly hearing oral argument or releasing opinions and argued cases. The episodes will cover legal news, what's going on. A lot of it may involve the court, and there will also be some additional special segments. We're not all necessarily going to be on the. All the episodes as is usual over the summer. So we get to do strict scrutiny and Friends, which we're always very excited about. And you should stay tuned for some bonus episodes in August and September. So not just one episode per week, but two. And we're super excited about these. Are we allowed to tease that one set might be about hot SCOTUS reform summer September? Because we just teased that.

Alyssa Murray

Okay.

Leah Litman

And then one other note, just on summer plans, you know, obviously there is this uncertainty and prospects that Sam Alito might retire. We scatter for the summer. We try to take some vacations. So you might not get something immediately from us and. Or something from all of us. But don't worry, you will hear from us, all of us at some point. So for now, while we are waiting news about a potential Supreme Court retirement, we'll just highlight some of the ongoing discourse surrounding potential Supreme Court nominees. Here's one take on what to look for in a possible Supreme Court appointment.

Kate Shaw

I just want dumb justices who will.

Alyssa Murray

Who will fall in line.

Kate Shaw

Right.

Alyssa Murray

And not justices who think they're the smartest people in the room, like Amy

Kate Shaw

Coney Barrett, or justices who care only about their image, like John Roberts.

Leah Litman

Yes, that nugget is from former clerk to Neil Gorsuch. Mike Davis, current leader of the Article 3 project. Also just wanted to note the horrific, absolutely horrific vitriol that the right is directing at Trump. Justice Barrett over birthright citizenship. One example is Matt Walsh posted on the Bad Place that the worst Supreme Court justices of all time have all been women. That's just a fact. Republican presidents should take the hint on

Kate Shaw

the Barrett sort of taking incoming. This is. I can't remember if we said this in our emergency episode, but we definitely talked about it offline. It's one of the many things that is. Makes it so wild that Brett Kavanaugh decided to include his idiotic concurrence on the constitutional question. Like he could have given her some cover, Garrett, some cover. And he chose not to. And I hope she remembers that.

Alyssa Murray

I think she will.

Kate Shaw

Should we do our favorite things?

Leah Litman

Yes, let's do it.

Alyssa Murray

Sure. Okay.

Kate Shaw

Well, I think it's probably good to end on something of an uplifting note. This was a bleak conversation and a very bleak term. And unless there's some major change in the composition of the court, that's going to be the case for some time. So we got to find our inspiration and joy and comfort. Comfort elsewhere. And for me, that has been you, both, Leah and Melissa, in addition to our team, Melody and Michael, our incredible intern, Jordan. The live shows we got to do this year in California, in New York. I guess D.C. was. I guess that was this term.

Leah Litman

Yeah.

Kate Shaw

D.C. chicago for CrookedCon Chicago. The amazing Sophie who coordinates All Things Tour, and then all the listeners we had a chance to meet. Like, that really was like a source of great joy this year. And I'm grateful for it. And I found it sustaining. And I also have found great peace in the last three days when I've been on the shores of Lake Michigan going for long runs and searching for beach glass, which is sort of my meditative happy place. And I'm here for another couple days and so happy to do it. That's why I have this like sort of treehouse background. Lake Michigan is yonder right behind me. So those are my favorite things for now.

Alyssa Murray

This is your own Tom Lake. Kate makes.

Kate Shaw

It is. It is.

Leah Litman

So I echo all of that. Working with all of you and our larger team is just one of the both ways of coping, but also genuinely positive things about this timeline. I also want you to note that we have kind of expanded our YouTube presence and video output. So we've been working with Eric Schutt, Johanna Case, and Kenny Moffat just to help us get more video content out. And so that has also been great. And then I guess the other thing I would say is it genuinely feels to me like there is a possibility that the needle is truly moving on the Democratic officials and Democratic establishment understanding about what is needed to address some of what ails our constitutional democracy, including on Supreme Court reform and getting to hear and see right. The evolution in some people's views I think has been very encouraging.

Alyssa Murray

So I will plus one. I guess it's plus two now for our incredible team. Melody, Michael, all of the folks at Crooked Jordan, who has just been amazing Jordan. We literally talk about how lucky we were that you crossed paths with us. It was just truly fortuitous and amazing. You all make doing this so much fun and make all of these trains and there are a lot of different trains. We got a lot of trains going on and you all managed to make it work out seamlessly. So. So that is one of my roses for all of this. I guess we all heard what the thorns were because this term was a banger. I agree that the needle is moving on court reform. That is really exciting to see. I would like to see more of it in the actual discourse around the midterm elections. I think that is coming. And I also wanna shout out the folks I've met just this year traveling for the book. Very excited that the book is back on the New York Times bestsellers list this week. Thank you to all of those who bought the book in celebration of America's 250th anniversary. My favorite purchase, though, came from a listener named John, no last name, who wrote to me to say this. Thank you for writing this fine book and your contribution to strict scrutiny, to which I listen regular. After buying a copy for everyone in my circle, I racked my brain as to who would be another deserving recipient. You, of course, deserve all of these royalties for your support of civic understanding. But I thought you would be amused that I came up with the perfect recipient. You can now cross him off of your Xmas list. Please see attached. And John included an Amazon receipt for the book the United States Constitution, a comprehensive and annotated guide for the modern reader that was sent to 1 1st street to the chambers of Samuel Alito. Thank you, John.

Leah Litman

Was it from John Roberts?

Alyssa Murray

I didn't want to out him, but thank you to listener John for sending the book as a gift to Justice Alito. Justice Alito. I hope you enjoy it. Maybe you will have more time to read the Constitution if you have more spare time on your hands. Just maybe spitballing here.

Leah Litman

And speaking of John Roberts, we know this fucking guy quite well. Chief justice of the Supreme Court, John Roberts. Nothing says I'm not political like spending the last two decades Remaking American Politics on the latest episode of this Fucking Guy, comedy writer and Hysteria host Aaron Ryan dives deep into the origin story of Roberts, the man who brought us the Citizens United ruling, gutted the Voting Rights act, and has spent his career moving our country toward oligarchy, all the while claiming he's above politics. Watch on YouTube now or listen in your Hysteria feed.

Alyssa Murray

Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Gold Smith. Jordan Thomas is our intern. Our team includes Matt de Groat, Ben Hethcote, Johanna Case, Kenny Moffett, Eric Shoot and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East.

Tommy Vietor

Hey, It's Tommy from Pod Save America and Pot Save the World. Last year, 2,500 people joined us at CrookedCon for conversations with some of the smartest organizers, least annoying politicians, and most interesting voices in politics to talk about how to fix this mess. Even President Obama made a surprise appearance. We're doing it all again November 5th to 7th in Washington, D.C. with even more podcasts, panels and workshops. Plus there'll be drinks, which we'll need after the midterms. No matter which way they go. Go get tickets@crookedcon.com if you're a friend of the pod. You get a discount too. See you there.

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