Melissa, Leah, and Kate recap oral arguments in cases about unhoused people, immigration, and Starbucks unions. Then, it’s our second annual listener mailbag episode! What’s the best way to fight against usage of the Comstock Act? Should liberals be using law suits to troll conservatives? Why don’t the Democrat-appointed justices speak out about their colleagues’ poor behavior? You asked, we answered!

• Strict Scrutiny will be live at the Tribeca Film Festival on June 13th! Tickets are on sale now. Learn more and get tickets at tribecafilm.com/strict

 

TRANSCRIPT

 

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Show Intro Mister Chief Justice. May it please the court. It’s an old joke but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. 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.

 

Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it, we’re your hosts, I’m Melissa Murray.

 

Leah Litman I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw, and this week is our annual listener Grab Bag episode, where we answer questions and cover topics that you submitted. You can think of it as a strict scrutiny office hours, sort of like an ask me anything for law professors. So we will go through and answer some questions that you submitted. But before we do that, as promised last week, we want to give you our brief takes on the major homelessness case and immigration and labor cases that the court heard last week. We went very, very long. And I’m not sorry, but we had do on the cases about Am Tyler, the case involving emergency room care for pregnancy emergencies and also Trump immunity aka a democracy emergency. So those were our focus last week. So we didn’t get to these cases and we didn’t want to skip them completely. So let’s dive right in. Last week, the Supreme Court heard oral arguments in Department of State versus Munoz. Leah, want to tell us about this one?

 

Leah Litman Yes. This is the important immigration case we have briefly noted before. It is about whether the government has to provide reasons for why they have excluded someone from the country. This particular case involves Sandra munoz, a United States citizen who is married to Luis Cordero, an undocumented man from El Salvador. They have a child and have lived in the United States together. The Department of Homeland Security gave her a provisional indication that they were likely to approve Luisa’s request for an adjustment of status, that is, grant him legal authorization to be in the country. But then subsequently, the consulate denied Luisa’s request, and the only reason they gave was that Luis might commit crimes in the future. Luis has therefore been in El Salvador for eight years, while Sandra munoz tries to contest that determination and seek more information about how DHS, the consulate came to this conclusion and that it’s forcing her to live in the United States without her husband, or alternatively, to leave the country. The consulate later said that Luisa’s tattoos indicated a gang affiliation, but an expert report subsequently debunked that notion. So that gave rise to the legal question in this case, which is whether Sandra has a liberty interest in the marital relationship such that the federal government has to provide some process here, a more detailed explanation of their reasons for infringing on that liberty interest. The case is somewhat complicated by some procedural details, specifically the fact that the federal government eventually provided more information allowing them to, you know, debunk it and contest it, but didn’t do so in a timely manner, which complicates their ability to ask the federal government for reconsideration of the adjustment of status decision.

 

Melissa Murray I’m going to think about this as a family law case, because.

 

Leah Litman Yes, you should. Yeah.

 

Melissa Murray Yes. Thank you and I will. The government really asked for the moon here. Basically, the government is asking Scotus to say that federal courts have no jurisdiction to review consular determinations about entry. Consular non review ability is generally about non-citizens not having a right to seek review of entry determinations. But here it’s complicated by the fact that the statutes afforded citizens the ability to initiate an adjustment of status. The non-citizen has a citizen spouse here, and previous Scotus cases have required some explanation in situations that seem perhaps less serious than this, like when a non-citizen is excluded but was going to speak at a university. So again, here the liberty interest in the marital relationship may provide that kind of additional bolstering for requiring some kind of explanation for his denial.

 

Kate Shaw And just to kind of underscore what Melissa was saying, this is a very aggressive argument that the Biden federal government is making in this case, it you know, they have been aggressive in a lot of both immigration and criminal justice cases. So as much as we love to, I think, correctly sing the praises of Elizabeth Prelogar, the positions taken in some of the cases that the federal government is arguing in the Supreme Court are very troubling positions. And the case that underlies this kind of contemporary version of this consular non review ability doctrine, Kleindienst versus Mandel, was essentially the basis on which the Trump administration predicated its travel ban, executive orders and later proclamation. And that’s essentially what the court is being asked by the federal government to apply here. So just let that sink in. All that said, it was a little hard to get a read on where the court was leaning on this case. The three Democratic appointees seemed receptive not to the federal government, but to Munoz’s argument. Not surprisingly, Thomas Alito, the chief justice, did not seem inclined to take it very seriously. Gorsuch actually did seem to think there might be some kind of problem here, but wasn’t sure what to do with the fact that this information was later provided some of the kind of procedural complexity that the case involves. But it seems like it may be best to hope for the Supreme Court to go small or narrow here, not making any broad pronouncements about the review ability of these kinds of decisions. Which I feel like no good could come from.

 

Melissa Murray The next case the court heard is. Grants Pass versus Johnson. And this is a major case challenging a city ordinance aimed at the unhoused. And the law forbids sleeping in public places with any bedding. The Court of Appeals, Ninth Circuit said that the law violated the Eighth Amendment, which prohibits cruel and unusual punishment. The Ninth Circuit reached that conclusion because it said the law criminalized the status, being unhoused with no option of sleeping elsewhere. The City Grants Pass does not operate its own shelter, and the private shelter, which doesn’t have the capacity to house all of those who are unhoused, requires attending religious services and doing work that some of those who are unhoused may not be able to do so.

 

Leah Litman The Supreme Court’s decision to take this case was concerning, because the court could be on the way to chipping away at the distinction between conduct, you know, here sleeping in public and status, the status of being unhoused. The court’s Eighth Amendment decisions have said it is okay to criminalize and prohibit conduct, but you can’t prohibit certain statuses. Those cases are how the Ninth Circuit Court of Appeals concluded that ordinances like grants passes, which again prohibits sleeping in public places and cities that don’t have shelters for the unhoused, criminalize a status against being unhoused because of the other arguments the court heard during the sitting. We’re just going to give a high level recap. It seemed to us like there was no chance of a straight up a it’s that is the court is not going to say yes. The court below was completely right to enjoined the enforcement of this law.

 

Kate Shaw But neither was it totally obvious that the court was going to reach the merits and just say, the law is completely fine and no issues here. So there is a chance the court could either give a narrowing construction to the statute, maybe saying it couldn’t be used in certain cases involving people without houses who don’t have somewhere else to go, or that the Oregon law, by providing a necessity defense, hews to that line. Gorsuch seemed especially interested in this. Or perhaps the Supreme Court could ask the Court of Appeals to narrow the injunction against the law in certain respects, that is maybe to tailor it to people who are homeless or maybe make additional findings. So all those things at least seemed potentially on the table.

 

Leah Litman Yeah. And if that happens, that is the court goes smaller and more narrowly than just upholding the law in its entirety. That would be in no small part because of the stellar advocacy of Kelsey Brown Corcoran, who is the Supreme Court director of the Institute for Constitutional Advocacy and Protection at Georgetown. Corcoran argued the case on behalf of the plaintiffs who challenged the law. Here she is explaining what laws like this do and what makes them so problematic.

 

Clip The ordinances by design make it physically impossible for homeless people to live in Grants Pass without facing endless fines and jail time. The only question under Robinson is whether there’s any meaningful difference between a law that says being homeless is punishable, and a law that says being homeless while breathing or sleeping or blinking is punishable.

 

Melissa Murray She also has some very strong co-counsel on the bench. And we’re not going to play all of the clips that we could play here, either of Kelsey’s terrific argument or some of the assists that she got from her, quote unquote, supreme co-counsel. But we’ll note a few and play one especially memorable exchange. But it is worth noting here that Justice Sotomayor opened up the argument by questioning the lawyer for Grants Pass DNA evangelist, asking whether the law has ever been applied to people with homes again getting out, whether the law effectively criminalizes the status of being unhoused versus conduct, that is, whether this was a law that was targeted at homeless people rather than camping or sleeping publicly more broadly. And Justice Sotomayor prosecuted that aspect of this case very effectively.

 

Kate Shaw And one really striking exchange along these lines came when Justice Kagan questioned the lawyer for Grants Pass and just straight up asked her whether, under the city’s view, the city could just straight up criminalize homelessness. And the lawyer didn’t say no. As you will hear in this exchange.

 

Clip Could you criminalize the status of homelessness?

 

Clip Well, I don’t think that homelessness is a status like drug addiction. And Robinson only.

 

Clip Well homelessness is a status. It’s the status of not having a home.

 

Clip I actually I disagree with that, Justice Kagan, because it is so fluid. It’s so different. People experiencing homelessness might be one day without shelter, the next day with the federal definition contemplates various.

 

Clip At the period with which in the period where you don’t have a home and you are homeless, is that a status?

 

Clip No.

 

Clip Could you criminalized that?

 

Clip No, it’s. Not. So Robinson talked about addiction.

 

Clip Like a judge. You, you you could criminalize just homelessness.

 

Clip So I want to say first a couple of things. So I think that for.

 

Clip The I mean, that’s quite striking to.

 

Clip No I don’t think you think that you can criminalize just homelessness.

 

Clip No, we’re not saying that homelessness is a status. But most importantly, I think the Eighth Amendment, you’re not saying.

 

Clip Way to focus on this. It’s really a simple question. Can you criminalize homelessness? And you are suggesting yes you could.

 

Clip No, we do not criminalize homelessness. I’m not saying.

 

Clip Could you criminalize homelessness? Not tell me what you do. Do what you don’t do, could you?

 

Clip So I think there would be due process problems and vagueness problems. I don’t think there’s an Eighth Amendment problem in the sense.

 

Melissa Murray That is in some respects the logical end point of the city’s position, because trying to distinguish the statute on the ground that it prohibits conduct rather than being unhoused is a really tenuous argument to make. But it seemed like if the city was going to prevail, it was going to be on a kind of specious distinction, like the distinction between conduct and status. And this court, as we know, is not above making specious distinctions after all. So that seems like a real likelihood. So instead, the lawyer dug in on the idea that the Eighth Amendment doesn’t really have anything to say about criminalizing homelessness. And this led to this kind of spectacular colloquy with Justice Kagan.

 

Clip Also, the federal regulations.

 

Clip Sleeping is a biological necessity. It’s sort of like breathing. I mean, you could say breathing misconduct to. But presumably you would not think that it’s okay to criminalize breathing in public.

 

Leah Litman It was surprising to hear the lawyer make this argument because it is completely unnecessary. You know, they can win on a narrower ground. And to my mind, I wasn’t sure why she elected to make this argument. And in some ways, it underscored how a 6 to 3 supermajority Republican court changes the Overton Window and litigants incentives because they can ask for completely wild propositions like, yes, we can criminalize being unhoused and know that is not going to sufficiently undermine their credibility that when they offer a fallback, specious distinction, the court is going to be fine with that. But that exchange between Justice Kagan and the Grants Pass lawyer led to this follow up from Justice Sotomayor.

 

Clip Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?

 

Leah Litman And Justice Jackson asked whether if a city could criminalize being unhoused, a city or state could execute someone for being unhoused, in part because, you know, at the evangelists cities, lawyer kind of invited the question by opening her argument with the claim that the Eighth Amendment prohibits only certain punishments and does not limit what states can criminalized. But after that bomb of question from Justice Jackson, the lawyer seemed to be willing to concede, though only with an assist from Justice Gorsuch, that maybe the Eighth Amendment would prohibit executing people who are unhoused. And Justice Barrett came in later to try to get her to take back her position that cities and states, you know, could criminalize being unhoused, as Justice Barrett has done in other cases where lawyers make what should be case ending concessions, like in theory or through creative or the EMTALA case Moyle.

 

Melissa Murray I think another sort of point to raise here is just how much the real politic of this situation, in this context, is sort of framing the debate and certainly seem to frame it at the court. And, you know, if you live in some of the western states like California, Oregon and Washington, there is a major problem regarding homelessness. And the cost of living out here is just inordinately expensive. It’s very easy for individuals to slip into being unhoused. And, you know, there are lots of public places where homeless encampments have erupted. For example, I worked at Berkeley for years and People’s Park, it had been known as a very prominent encampment for those who were unhoused. And there are some real issues with that, including questions about the safety of those who are in those encampments, as well as questions about, those who pass by. You know, at one point, I think in 2016, a baby was playing in People’s Park and like, ingested a tablet of what had been like some kind of narcotic and was seriously ill. So these are real questions that, Grant’s past raised. And a number of the amici weighed in on. I’ll note that California Governor Gavin Newsom filed a brief. But what struck me in this argument, and what was so disconcerting, was the absolute empathy gap by some of the Republican justices. I mean, like, you can be a resident of these cities where these issues are happening and understand that this is an undesirable situation for everybody. And it’s a real question about this income inequality that is rising and growing, about affordable housing, which is becoming increasingly scarce and still have compassion. And there’s just just startlingly little compassion. It just seemed like NIMBYism run amok.

 

Kate Shaw Yeah. Well, on the part of the conservative appointees.

 

Melissa Murray Yes.

 

Kate Shaw I don’t think that was true across the board.

 

Melissa Murray But, you know, like, I don’t mean like Justices Kagan, Sotomayor and Jackson were emphasizing that, like you, these aren’t throwaway people. They’re people. And this could happen to anyone.

 

Kate Shaw Yeah. But neither were they. Some caricatured, like a just all empathy like vessels. They were very much acknowledging some of the dynamics that you just mentioned. Also, these are hard policy problems, and we don’t want the court or the law to. String cities abilities to to tackle policy problems, but that appreciation for both sides of the issue was completely, conspicuously lacking on the conservative.

 

Melissa Murray And also, I think what was really evident from the conservatives is just how inconsistent they are about when there are questions that are specifically geared toward legislative processes and where courts should intervene. I mean, like they were discussing, like, why should courts intervene here? This should be exclusively for the legislature. And, you know, like, where is this energy around climate change or anything else? Yeah, yeah. Anyway, so I think we know where that’s going.

 

Kate Shaw Yeah, yeah. All right. So maybe we’ll just briefly mention another case the court had argued last week Starbucks versus McKinney. This is an important labor law case about the National Labor Relations Board’s authority to obtain preliminary injunctions, that is, injunctions that prevent an employer from, say, firing people or requiring reinstatement after the NLRB has made an initial determination that the employer engaged in an unlawful labor practice. So the employer here wants to make it harder for the NLRB to obtain preliminary injunctions generally, and it wants to do that by requiring the NLRB to have to make additional showings before granting any kind of preliminary relief. The case arises out of the push to unionize Starbucks, and the way Starbucks responded to one such unionization effort that is, by firing seven employees, known as the Memphis Seven, who say they were fired in retaliation for trying to unionize. The union then went and filed a complaint with the NLRB, which went to federal court and won a preliminary injunction.

 

Leah Litman During the course of the argument, it felt like the issues were narrowed such that it is possible the court is going to say perhaps two smallish things about the extent to which courts need to take more consideration of the likelihood of success on the merits, and how to view the NLRB initial assessment that there was an unlawful labor practice here, and then also possibly take into account a broader assessment of the public interest than the Court of Appeals may have done here. But there was something quite striking to me about the fact that this case was argued the same week as Grants Pass and just about the state of the Supreme Court vis-a-vis wealth and income inequality, just with where their sympathies were lying and the extent to which, you know, they were not really concerned about the situation and circumstances of employees who had been let go of their jobs and the importance of protecting them during ongoing litigation, with the NLRB, as they were similarly unconcerned with the situation of the unhoused. And yeah, so we are awaiting a decision here, but it’s possible. I am hoping it will be on the narrower side.

 

Melissa Murray Okay, obviously this is not a sports podcast. And as you know, I care very little about sports other than the Golden State Warriors. But this development is actually Scotus related and therefore worth a mention. So many of you listeners will remember that Reggie Bush, the celebrated tailback for the University of Southern California Trojans, was the 2005 recipient of the Heisman Trophy. However, in 2010, Bush returned his Heisman Trophy following an NCAA investigation that found that he and members of his family had received what were then impermissible benefits during his time at USC. I say at the time, because during this period, college athletes weren’t allowed to accept certain payments or gifts if they wanted to retain their amateur status and athletic eligibility. But all of this changed in 2021, when Scotus issued its decision in NCAA versus Alston, where Neil Gorsuch, writing for a unanimous court, concluded that the NCAA rules regarding benefits that college athletes could receive were not reasonably necessary to distinguish college sports from professional athletics. It is also worth noting that in a very scathing concurrence, Coach Kavanaugh made the point more explicitly, arguing that the history and traditions that colleges and their alumni favored, quote, cannot justify the NCAA decision to build a massive money raising enterprise on the backs of student athletes who are not fairly compensated. Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate and, quote, see, Starbucks. The NCAA. I’m sorry, couldn’t help it. And then he continued, the NCAA is not above the law and quote.

 

Leah Litman Unlike the president.

 

Melissa Murray Again. It’s it’s nice to have these callbacks. But yeah, this just happened in 2021, but it really did change the landscape of college athletics. And in fact, the Heisman Trust cited all of these new developments that this decision put in motion in its decision to reinstate Reggie Bush as the 2005 Heisman Trophy winner. So I just wanted to flag this because it seems like here finally, the court’s reading of history and tradition and a developing landscape has actually worked out in favor of a person of color who is not Clarence Thomas. And perhaps that is a silver lining of sorts.

 

Leah Litman Definitely worth marking the occasion.

 

Kate Shaw I feel like the only way to claw back like.

 

Melissa Murray This is going to be like pardon day. We’re going to remember this day. We’re going to like celebrate this. Reggie Bush day.

 

Leah Litman I love new national holidays.

 

Leah Litman [AD]

 

Melissa Murray Now it is time for what you came for, the listener questions. So we are going to delve into all of the major, major questions, the real major questions that we want answered.

 

Kate Shaw And should we introduce our special guest to read some of them?

 

Melissa Murray Yes. Stepping out from behind the curtain.

 

Kate Shaw The woman behind the magic. Our fabulous producer Melody Rowell is actually going to join us on screen and in your ear holes to read some of the listener questions that you submitted. So hey Melody, so good to see your face.

 

Melody Rowell Hi.

 

Want to say more Melody?

 

Melody Rowell Ugh. I didn’t I didn’t prepare a speech. So, this is why I’m not on the mic.

 

Melissa Murray Okay. So how are we doing this?

 

Kate Shaw Melody, you just. Dealer’s choice.

 

Leah Litman Yeah.

 

Kate Shaw Start us off.

 

Melody Rowell Okay, so we got almost 350 questions from our Google form, from our email and from Instagram. So we’ve picked out a few. I’ve tried to organize them by theme. So understandably we got a lot of questions about reproductive rights. So I thought we could do those first because they’re going to be depressing. Then we’ve got a bunch of questions that are about some other issues before the court, other big legal issues in our country and then.

 

Melissa Murray Fascism, fascism.

 

Melody Rowell Fascism, authoritarianism, all the isms. And then our last section are going to be a little lighter, a little more grab bag of the grab bag.

 

Kate Shaw I’m excited about that.

 

Melody Rowell So this first question, is from Eric, and he says, do you think non conservative municipalities and groups should be passing more trol legislation to call out Supreme Court hypocrisy? For example, why hasn’t California passed a law that copies Texas Speight’s language but applies it to gun control or religious liberty or some other similar topic?

 

Leah Litman So in my view, I just don’t think that is helpful. Because it is possible to point out the hypocrisy of this court without having to generate kind of fake cases to do so. Also, you know, you’re not going to win these cases. And so it is just expending political energy and time when it feels like it’s not going to move the ball to do so. And so there are more important and I think efficient ways to focus energy on the Supreme Court and call out what the court is doing. Right. Like they took up the case. We should be talking about that. They blew up student debt relief. And we should be talking about that. And I just don’t know that we need, you know, experimental trollish legislation in order to underscore all that is wrong with the court.

 

Kate Shaw I agree, and I think another set of reasons. I mean, these are, you know, these vigilante laws are truly vicious, destructive, you know, modes of governance. And I just I think there’s an argument that the left and Democrats and progressives do sometimes unilaterally disarm in that sort of, you know, rough and tumble of, of political disagreement. And I think that there are places where emulating some of the tactics of the conservatives is worth considering, but passing laws, kind of weaponizing the use of the legal process by private citizens against other private citizens is not, I think, on the list of things we should emulate. And, you know, I understand the impulse, but I really feel like that’s there have to be better ways.

 

Melody Rowell Okay. Our next question was submitted on Instagram. And they say, can you explain to me like I’m five how row was overturned? And yet we could still end up with a national abortion ban if it should be left to the states and not the federal government.

 

Leah Litman I’ll start with a super basic thing, which is I think that when the court said we’re overruling row in order to return the issue of abortion to the states, that was really a shorthand for saying they are returning the issue of abortion to the political process, i.e. elected legislatures and executive branches, possibly elected state courts as well, but not the unelected federal courts, who in their view, they were saying are outside the political process. So they were saying courts are not going to protect the right to abortion and state legislatures, i.e. the political process. But the political process also includes the federal legislature. They can restrict abortion.

 

Melissa Murray Well, let me elaborate a little bit, and I will explain it like you are five or like you are a member of the 6 to 3 conservative super majority. So here we go. In his opinion, in Dobbs versus Jackson Women’s Health Organization, Justice Alito essentially said that Rowe and the right to abortion is not explicitly discussed in the text of the Constitution, nor is it part of the history and traditions of the United States. So it’s an argument about the Constitution itself, and about what we historically have understood to be a set of fundamental rights. But there’s also a long part of the opinion that really focuses on the idea of democracy and the idea that an issue like abortion, which he argues is fraught and divisive, these sorts of issues are the ones that are sort of tailor made for democratic debate and deliberation at the state level. So Roe is overruled, Casey’s overruled. And arguably, the question of abortion is sent back to the states for democratic deliberation so the states can decide what they want to do about abortion. And you’ve raised an important question how then, can we have a national ban on abortion, if in fact, this is supposed to be a question of federalism? Well, I think one thing that you can note is that Justice Kavanaugh, in his concurrence, notes that the people can debate in all kinds of fora in. Including state legislatures, but also Congress. So that might be one aspect of this. That kind of democratic deliberation isn’t necessarily confined to the states. And it is also the case that we have sort of lingering around zombie laws like the Comstock Act, which is a federal law that prohibits the transmission in interstate commerce of any articles that can be used to provide an abortion, and that law could be reinstated under a Republican administration or Republican DOJ to criminalize the transmission of any implement or medication that is involved in abortion. So that’s one way that you could get a national ban. You could also get a national ban if the Republicans win the presidency and both houses of Congress and pass a national debt. And again, that is sort of what Justice Kavanaugh teed up in his concurrence when he noted that the people could do this through Congress. It’s also worth noting that if the Democrats retain the white House and when control of both houses of Congress, you could have legislation on a national scale that does more to protect and preserve abortion rights. So, you know, this question of democratic deliberation can go in a lot of ways, but I hope that will explain why this decision in Dobbs doesn’t necessarily confine the question of abortion to the states.

 

Kate Shaw And can I think one more thing, more so at the end of your answer, you were talking about, it’s, you know, the question of federal legislation could be of either a national ban or federal legislation that seeks to codify Roe, as the Biden administration sometimes puts it, but essentially to protect access to abortion as a matter of federal law and as to what national ban look like. You were saying when Roe and Casey were on the books, Congress couldn’t ban abortion because the Constitution protected some right to access abortion. With those cases gone, there is that obstacles removed. But Congress still needs affirmative constitutional authority to do anything to pass any kind of law. So there is a genuine question about, I think, whether Congress even has the constitutional authority to pass a nationwide abortion ban. It would need to identify a constitutional basis. Presumably it would be the Commerce Clause. But the court has never answered a question about whether the Commerce Clause authorizes Congress to regulate abortion. There was a federal abortion law that purported to ban a particular type of late term abortions. The court upheld that law in a 2007 case called Gonzalez versus Carhart, but actually didn’t address the question of whether the Commerce Clause actually supplied the authority for Congress to act because it wasn’t raised in the case. So I think it’s a genuinely open question whether Congress even has the authority. Of course, I also think it is likely that the Supreme Court would answer the question of constitutional authority differently. If we’re talking about a law prohibiting abortion nationwide versus a law protecting abortion nationwide.

 

Melody Rowell Not totally sure. Those were all words that a five year old would understand, but maybe like a 15 year old. So you did your best. We also got a couple questions about the Comstock Act. So I’m going to read you two and you can answer them together. So, the first one is another one we got from Instagram. They want to know what is the best legal way to fight the Comstock Act. And then the second one is for Michael, who asks. The Comstock Act has been in the news lately as a way to prohibit medical abortions. Do you think our Supreme Court should argue that drugs like Viagra and sex toys designed for men’s pleasure are actually wholesome and pure, and shouldn’t be banned for being lewd and immoral? Could they also use this opportunity to prohibit pornographic magazines and streaming services? I think magazines were previously exempted, but who cares about precedent?

 

Melissa Murray I’m going to do the one about the best way to fight the Comstock Act. I think the best way to fight the Comstock Act is to get into a time machine and go back to 1873 and catch chronic masturbator Anthony Comstock in the middle of the act and make him stop, like, just like make him stop whatever he’s doing, but also make him stop with The Comstock act.

 

Melody Rowell Throw some cold water on him.

 

Melissa Murray Exactly. I’m seeing all of this as a joke.

 

Leah Litman Show him a picture of Sam Alito’s face.

 

Melissa Murray Exactly. I mean, just again, all to say, like the Comstock tax is literally from 1873, it is a zombie law that is on the books that literally some Democratic Congress years and years ago should have taken care of and didn’t. And just it’s just a warning that we actually have to be quite vigilant about these laws that are languishing and destitute, that stay on the books. But what’s the best legal way to fight a Comstock Act? I think related to Michael’s question, there actually might be a lot of equal protection grounds to challenge the Comstock Act going forward, simply because many of the implements that are and materials that are being challenged as prohibited under the comic actor, things that women use, like so, you know, condoms are not necessarily prohibited. This has long been the case around bans on contraception. They typically only applied to, quote unquote, contraception, not necessarily contraception. That also functions as a prophylactic, like a condom, for example. So they have historically, limited women’s use of these products while allowing men more license. So I think one way that it’s promising is the equal protection clause.

 

Kate Shaw But also, like we still, at least for now, have Griswold on the books.

 

Melissa Murray Well for now

 

Kate Shaw Mean, we still have constitutional liberty protections for the access to contraception. And since 1965 like and well before that because it just wasn’t being enforced. But I think it’s been quite understood that at least that part of Comstock is obviously unenforceable with Griswold as an obstacle. But of course, Griswold, I don’t know, maybe is vulnerable based on the reasoning. You know, despite the hollow protestations to the contrary that Alito offers in the Dobbs opinion. It definitely, I think, throws the Griswold opinion into question. I do think we’ve mentioned this article before on the podcast, but Comstock re this forthcoming article by Reva Siegel and Mary Ziegler has just, like, pretty astonishing history on the early enforcement of the Comstock Act. I mean, it was literally used as a tool of political oppression to prosecute people who were trying to just provide anatomically correct instruction to, you know, teach people about pregnancy, like teach people about sex like it was, you know, all a lot of the stuff was like very anodyne instructional material. And these unbelievably puritanical ghouls use this law in also in violation, obviously, of our contemporary understanding of the First Amendment to target people trying to just do instruction and provision of information. And so I also think not just liberty, but current First Amendment understandings absolutely can’t coexist with an actual enforcement regime that looks like the earlier enforcement regime. So I think those are, Melissa mentioned, equal protection, Liberty speech. All of these I think are should be fatal obstacles to the enforcement of Comstock. And yet I don’t know that I can confidently say they will.

 

Leah Litman I just want to say two quick things. One is the best legal way to fight the Comstock Act is to campaign on repealing it and just get it off the books. I just don’t have a ton of faith in the Supreme Court’s willingness to recognize legal theories that would actually limit its reach and really serious and problematic cases. The second as to whether, you know, Democrats are potentially others should float the possibility of the Comstock Act being applied to other things like drugs like the agora and sex toys. I mean, to my mind, this kind of goes back to the previous question. I don’t think Democrats, progressives should adopt the kind of unhinged, anti libertarian authoritarian tactics that the Republicans are and try to leverage the law by showing it can be used for untoward purposes, to actually use it for untoward purposes and threaten people with criminal liability. So I don’t think people should go around pushing the theory that, yeah, like, let’s try using the Comstock Act against, you know, people who distribute Viagra or sex toys or pornography because like that is antithetical to, you know, a regime of free people and liberty. And we just shouldn’t be floating that boat and going tit for tat there.

 

Melody Rowell One more question about Comstock. From Robert. If the Comstock Act is used or abused to ban sending materials for abortions can also be used or abused to prevent the shipping of AR 15 style guns.

 

Kate Shaw See, this is the kind of flipping the kind of valence that I actually could get on board with contra, you know, I agree with what Leah just said.

 

Leah Litman The court is never going to endorse it. And so I don’t understand, like pouring in the kind of effort and order to launch these cases and try to make it happen, you know, like it is an interesting theory, but like, it’s not going to happen. So, like, if you want to have a good time, win elections and appoint people to the federal courts and the Supreme Court, and then we get to have a good time.

 

Kate Shaw Amen.

 

Melody Rowell We got a question from Hillary about what might be coming after the Stone case, given the recent conservative move to take mifepristone off the market. What are the chances their next frontier is trying to get birth control from being over-the-counter, as it is now available in retailers without a prescription?

 

Kate Shaw Oh, I think Sam Alito would love nothing more. And I don’t remember if project 2025 actually has this on its list. I don’t remember seeing it, but if not, this will be a, you know, the like 3 a.m. drop of that volume. Because I think. Yeah, absolutely. And if, if the mifepristone playbook like litigation template just gets rerun here, you can go to the FDA history and find something that you think they should have done slightly differently and get in front of a judge like Matthew Kacsmaryk and who knows, I, I the sky’s the limit. So I would think there’s reason to be very, very worried about that.

 

Melody Rowell We got a question from Aaron that I feel like we’ve gotten a lot in the past, so hopefully we can kind of clear it up once and for all. Aaron writes can fetal personhood be objected to on religious grounds? Judaism, for example, does not consider fetuses people and puts maternal well-being above all else.

 

Melissa Murray I think we’ve talked about this on the show, and I think we’ve also noted the fact that the tenants of Judaism does prioritize maternal well-being over, the well-being of the fetus. I’ll also just note that, you know, there was a recent Indiana case that also raised these questions of religious liberty in the context of abortion. And there are a lot of people, including Micah Schwarzman at Virginia, who’ve done a lot of writing on this question. So, yes, I think fetal personhood could be objected to on religious grounds. I think the real question, though, is how it would be received at the court when those claims are actually raised. We speculated that 2 or 3 creative was actually framed as a speech rather than a religious case, perhaps to avoid the religious liberty question or laying more groundwork for a religious liberty challenge to an abortion law. So, you know, that’s something to think about. But I do think the real question is like, is this court just generally receptive to religious liberty, or is it receptive to religious liberty claims that are raised by certain faith groups. And I’m thinking specifically of Christian evangelicals, and I think that is a real question. And we’ve already had some conservative scholars and pundits, like Josh Blackman, for example, suggesting that, the tenets of Judaism that do require prioritizing maternal well-being are somewhat selective or itinerant and not really sincerely held, or that those who believe that are not really sincere in their religious beliefs. So, I mean, there’s just a lot of inconsistent, selective adherence to these questions of religious liberty and solicitude for faith.

 

Melody Rowell Our next question comes from Alex with EMTALA you’ve talked about federal law having supremacy. How does or could that apply to states that have legalized marijuana even though it’s criminalized federally?

 

Kate Shaw Yeah. I mean, you know, basic principles of federal supremacy do mean that federal law controls, the reason that marijuana law has been allowed to, you know, flourish in the states is largely just federal forbearance, right? Like the federal government has not chosen to enforce any of its federal marijuana laws against individuals in states that have fully decriminalize marijuana. But that doesn’t mean that they couldn’t in some future administration.

 

Leah Litman Yeah. And so maybe just to, expand on the differences a little bit. So, when federal law prohibits something like, say, a drug, that means states can’t bar the federal government from enforcing that law. But it also doesn’t mean states have to implement and carry out the federal law. So that is like the federal government says, marijuana is prohibited. They can have federal law enforcement officers out there investigating, arresting people or prosecuting them and putting them in jail, but they cannot require states to go out, investigate federal marijuana offenses, prosecute those cases, and put people in state jail, and prosecute them under state law. But that is a little bit different than the posture of the case, where federal law says you have to be able to do this thing and state law is trying to prohibit it. They are state law is prohibiting something that federal law requires. So just like states can’t legalize something that is prohibited by federal law and prevent the federal government from enforcing that law. So two states cannot prohibit something that federal law requires.

 

Melody Rowell Next question comes from Ethan. We’re sort of moving away from questions of reproductive freedom into some other issues before the court. So Ethan asks, what is the likelihood that the Chevron doctrine ceases to exist after this term?

 

Melissa Murray Very likely. Thank you. Ethan.

 

Kate Shaw A little South 100%, but not that far south.

 

Melissa Murray I mean, I think the real question here is whether the court will explicitly overrule Chevron or do that thing it does where it sort of ignores it and this and says that, you know, we’re just.

 

Leah Litman Abandons it.

 

Melissa Murray Yeah.

 

Leah Litman So it is a few choices, right. Like it could, it could do could Dobbs it could do what it did to Roe and Casey and Dobbs explicitly overrule it. It could do it. It did to lemon versus Kurtzman in the praying Koch case, Kennedy versus Bremerton, which is to say that it has already been abandoned. Recognize, just recognize.

 

Melissa Murray Without noting that they were the ones who abandoned it.

 

Kate Shaw Correct. It also could just, like, do the thing that the court in the affirmative action case, SFFA, versus Harvard and UNC did with Grutter versus Bollinger, the case from 2003 that allowed limited use of race in admissions at the University of Michigan Law School. It doesn’t write the sentence gruters overruled. It doesn’t write it. It doesn’t even say it’s abandoned. It just obviously overrules it without saying it. So it’s done. Absolutely. But the sentence doesn’t appear, nor does this weird abandonment formulation of here. So it could has many paths before it. All of them, I think, functionally mean the same thing. But I actually think rule of law values are sort of thwarted in different ways when the court refuses to forthrightly just acknowledge what it’s doing. I think that the public reacted to the overruling of Rowe, maybe somewhat differently, because Dobbs was so explicit about it. I don’t think this was the entire this is the entire reason, by any stretch that the reaction to Dobbs has been what it is. But I think the court might have tried to blunt public criticism and response by doing something slightly less explicit and overt if it had wanted to. And I think it’s actually much better that it didn’t, because the effects would have been the same with or without the explicit acknowledgment. But I you know, it’s possible they have taken the lesson from that, that it’s better to be sneakier. And so they might do something similar with Chevron.

 

Melody Rowell Or like, remember in the Muslim travel ban case, when the chief justice said that Korematsu had been overruled and then the court of history.

 

Kate Shaw Yeah, yeah.

 

Melissa Murray I wish this court was the court of history.

 

Leah Litman Indeed.

 

Melissa Murray As in like it’s in the rearview mirror.

 

Melody Rowell Okay. Our next question comes from Raven. What is the legal role or weight of concurring opinions versus dissenting opinions versus partial concurrence says how are they applied in the immediate ruling and used in precedent?

 

Kate Shaw That’s a great and hard question. It’s a hard like it’s just a question that we could talk for a long time about. I think that the unsatisfying answer is it depends a great deal. I mean, a concurring opinion that supplies the fifth vote. So actually makes the difference between what would just be a plurality opinion and an actual majority opinion if the court is really powerful. And so that that kind of concurring opinion is different from a concurring opinion where you already have five all on board with a full majority opinion, and then you have a sixth or seventh or an eighth, say some other things about why the majority’s right, or how they might have approached the question differently, or where they part ways with the majority. So, you know, a concurring opinion where it is the deciding vote is very powerful, and other concurring opinion is much less so.

 

Melissa Murray Examples of that would be Justice Powell’s concurrence in Berkeley, which became the prevailing opinion on affirmative action, was. Reaffirmed in greater Versus Bollinger, which Kate just mentioned. Another example of that might be the Chief justice’s opinion in June, medical services versus Rousseau, which again was the determinative fifth vote, but also kind of became the direction of the court going forward. So those are some examples, you know, and then there is some concurrence is that are not about the determinative vote, but nonetheless come to be the determinative opinion and reasoning for a particular issue. And the paradigmatic example of that is Justice Robert Jackson’s concurrence in Youngstown, which is the seminal case on executive power in domestic context, and that concurrence is the law.

 

Kate Shaw It basically is. It’s it’s you know, that’s a 6-3 opinion. But the Jackson concurrence is way more important than the black majority opinion, although I will say I am a frankfurter. Stan, in terms of his concurring opinion in Youngstown.

 

Leah Litman That’s a good one.

 

Melody Rowell Our next question comes from Kim, who writes, I don’t understand how one judge can dictate the law for the entire country. I think it’s called a nationwide injunction. I’m not a lawyer. Can you recommend any resources to learn more about this? Was it ever used for good and not evil?

 

Leah Litman So a few thoughts. Just descriptively, a nationwide injunction can refer to one of two things. One is where you have a federal judge somewhere in the country. Order the federal government not to do something on a nationwide basis. So they, you know, say some policy, right, is unconstitutional and can’t be carried out anywhere. Another context in which it’s arisen is in cases challenging what administrative agencies do. So imagine you have an administrative agency that, say, approves a drug like mifepristone. Then a judge, if they revoke what the administrative agency has done, that is they make it so that administrative rule or regulation or decision just doesn’t exist, then that too can have an effect on a nationwide basis because it just rescinds the rule. So those are two kind of scenarios in which, a single judge’s ruling can have nationwide effect. Ever used for good and not for evil? Sure. Lots of instances. Just recently thinking about the travel ban. So their district judges enjoined President Trump’s travel ban, in part for administer bility reasons on a nationwide basis, because if it banned entry into any airport or any way of entering the United States, they couldn’t just, like, apply it in their state because the individuals who were suing to challenge the travel ban in that state or jurisdiction were injured by the exclusion of people arriving at many different places within the United States. And so in order to remedy their injury and in order to again, like, not have it on an airport by airport basis, then district judges were doing that on a nationwide basis. So the I personally think there are some circumstances in which nationwide relief could be warranted. But there’s no question that it has been abused and used by judges in cases where it is unnecessary. So, as far as you know, looking at resources to learn more about this, I think, Melissa, Joan, who is at San Diego Law School now about to join the faculty at Stanford Law School, has several pieces about court’s authority to award nationwide relief. These are, you know, scholarly articles, long law review, treatment of them. But I think, you know, the most comprehensive Sam Brey at Notre Dame has written the, you know, skeptical account also in a law review article. But those are kind of two comprehensive sources.

 

Kate Shaw I also think your colleague Nick Bagley has, who was a skeptic about nationwide injunctions. I feel like he’s done some more popular kind of facing writing maybe in the Atlantic as well about that. So in addition to and Miller’s Law review articles, The Lost History of the Universal Injunction. And it’s already had a couple like very well written and readable. So if you have, you know, 100 pages of reading in, you would definitely check that out.

 

Leah Litman [AD]

 

Melody Rowell Okay, so our next question comes from Anna. What is stopping our liberal queens from just speaking their minds to the public about the current state of the court? What’s stopping them from advocating for court reform or calling out their colleagues.

 

Kate Shaw By liberal queens? Do you think that they mean not us, but sit American.

 

Melissa Murray Like we’re doing this all the time? Correct? Nothing stopping us, Anna. In fact, we’re always speaking our minds. So you’re welcome.

 

Leah Litman Calling out their colleagues, made it clear that this was a reference to the Democratic appointees on the court.

 

Melissa Murray I thought it was about faculty politics.

 

Kate Shaw No, no no.

 

Leah Litman No. Girl.

 

Melissa Murray Sorry. Let me step back.

 

Leah Litman I could start. And I’ll just throw out a few. You know, one is obviously like, we do not want to overly lionize, any Supreme Court justice, including the Democratic appointees. They are human. They are fallible. You know, we like celebrating when they are showing up to fight in cases, because it is important to underscore the differences between the Democratic appointees and the Republican appointees in order to make clear the stakes of presidential elections for Supreme Court appointments and the different kinds of appointees that they are appointing to the court. But, you know, the reality is, like Democrats appoint institutionalist, these are not rabble rousers. They are not going to be on the forefront of pressing the case against what the court is doing. Nor could they, again, because they are in some respects kind of captives and hostages to the current court. You know, they have to obtain the votes of their colleagues in order to prevail in any cases so they don’t have the luxury. Again, given their role of basically calling out their colleagues for every time they do something horrendous, hypocritical and disastrous for the country because they would be alienating them and risking, you know, again, their petulant bro colleagues basically refusing to play ball with them in a future case. And we know how much Sam Alito hates criticism. We know the same for Brett Kavanaugh. You know, the chief justice has written in opinions that he thinks Justice Kagan has been too mean to him in dissent. So those are, you know, justices Justice Barrett has done as well. So those are justices who are conceivably in play in a lot of cases, and they are not okay with their Democratic colleagues openly and harshly criticizing them. And I think in part for that reason, they feel constrained in what they are able to do, even putting aside whether they would constitutionally be inclined to do that.

 

Melissa Murray I agree with everything Leah just said, but I also think those considerations are what makes their concurrence, which is really a dissent in Trump versus Anderson, so shocking and like momentous, because in that writing, they essentially call Donald Trump an oath breaking insurrectionist and say to the country that the conservative supermajority is basically in the bag for Donald Trump.

 

Leah Litman And they were right, given what happened. And they were like, immunity argument. Right? So like, yeah, right. If you know kind of what to listen for and the register against which to judge their remarks. Right. I think they are doing some things, but, they are not going to do it in the way that we who are outside the court are able to.

 

Melissa Murray When they do do it. I mean, that should be instructive to the public that like, oh, this is really a big fucking emergency because ordinarily they would not.

 

Kate Shaw Yeah. And there’s an article that we’ve mentioned before on the podcast. It’s called Establishment Clause Appeasement, which is by Nelson Tibi from Cornell and Schwarzman from UVA. And it really criticizes the liberal justices for what they term a strategy of appeasement in Establishment Clause cases. And there may be broader lessons there. This isn’t really about the kind of, you know, going public with their critiques, but just in terms of how the justices interact with their conservative colleagues, they could always call them out, or they could try to find common ground and limit the damage of the rulings that the majority will reach. And those are always, I think, hard questions of strategy and tactics. But I thought, I think that’s a very convincing kind of refutation of the idea that that appeasement ever yields any long term benefits.

 

Melody Rowell So this is a perfect segue into a question from Vincent, who asks, how do you think the media can more accurately portray Scotus cases? It seems like they always take certain cases as wins, but then I listen to strict scrutiny and it obviously isn’t a win. It’s just a little frustrating on the media’s part because so many people rely on it for their information.

 

Melissa Murray I think most mainstream media are not inclined to cover the court unless it is a landmark case or some big case, and this is true of all of the outlets. Like they have a list every year in June of like the cases they’re going to cover. And I think if you only focus on the so-called big cases, you miss bigger trends that sort of signal where the court is going. And that’s actually perhaps even more important. And that’s something that we try to do on the podcast. But, you know, I just want to sort of put out there as a marker. It’s not, I think, the case that the media is either interested in covering the court with any level of specificity, nor are all of the people who provide. Commentary on mainstream media’s equipped to do so. I mean, it’s a very specific beat. It can be very highly technical. It helps to be a lawyer, but even that is not always enough. I mean, I give a lot of credit to folks like Poppy Harlow at CNN who have gone back and gotten an MSL at Yale. I think in order to be better equipped to discuss some of these questions that do sound in the register of law and require more specific and, pointed expertise. So I think that’s a big question here. Not everyone is a lawyer. Not everyone can sort of understand the interstices of some of these cases. So, you know, they often framed cases in the way that the various sides framed them. So, you know, I got a lot of shit because I, along with Steve Vladeck, railed against the Milligan decision as not a victory. That’s not how LDF was framing it. It, and I think rightly so, like it was a victory in certain respects, for voting rights. And it was a hard won fight for LDF and do well Ross who argue that case. But if you’re thinking about voting rights in the big sweep of things and where the court is going, I think it was a much more mixed bag. And, you know, that’s why I’m not an advocate. I am here as a law professor, as someone who thinks about the court to give perhaps the slant on it that advocates cannot and should not. And so I think, you know, maybe the bigger lesson here is you can’t rely on just a diet of mainstream media. If you really do want to understand what the court is doing, and you’ve got to supplement it with, strict scrutiny. Chaser. And that’s why we’re here.

 

Kate Shaw Let me just give one recent example, which is the recent immunity argument. I got a bunch of questions. I talked to a bunch of press about it, and I got a few questions that were that ask me about like a compromise or middle ground solution. And I really tried to tell everyone who would listen that any recognition of absolute immunity for any, for from criminal liability for official acts would not be a compromise, but an enormous win for Trump and an enormous break from existing precedent in terms of how we understand the president to be subject to law. And so I do think that there is an inclination to sort of understand two positions and then anything between two positions as a compromise or a middle ground solution. And I think that is an extraordinarily dangerous framing in some cases. And I don’t have a kind of solution to that. But I do think that just be really wary and skeptical of claims that the court seems to be looking to a middle ground or compromise. It usually isn’t when framed that way.

 

Melody Rowell Okay. Do you want to move on to some of the more fun questions? Okay. From Ben is General pretty lawyer too smart and awesome to ever hope to end up on the court?

 

Leah Litman No. See, the current Democratic appointees, I think there would be something incredible about a world in which Justice Kagan retires under a future Democratic administration, and Elizabeth Prelogar, or her former law clerk, is nominated to replace her. There are some other, you know, people who have been confirmed by Biden as court of appeals judges who I think would also be, you know, amazing Supreme Court nominees. But I can imagine that happening.

 

Melody Rowell Okay. So related to that, Garrett asks if Justice Sotomayor or any of the other justices were to retire, who would be your pick to replace them, and or what qualities or demographics would the successor possess?

 

Kate Shaw Okay, so Prelogar as we just talked about is grade. Can I throw in two of the fabulous ladies of the Wisconsin Supreme Court Jill Karofsky and Rebecca Dalit who are both amazing justices. I think a state Supreme Court justice. I think someone who has run for office would be so good for this court for his health as an institution. There are great people sitting on the federal appeals courts, but I would love not to have the next opening on Scotus. Go to one of them.

 

Put Jill Karofsky on that court, and watch Sam Alito try and play in her face.

 

Kate Shaw He’d retire immediately, I think.

 

Leah Litman Yeah. Yeah. So a few other people who would not be coming from Court of Appeals, I have to add in Dale ho, you know, Premier voting rights, a lawyer confirmed to the Southern District of New York, I think Nina Morrison, who was a lawyer for the Innocence Project, another district judge out of New York, Nusrat Chowdhury, you know, another district judge from New York, a lawyer.

 

Melissa Murray Natasha Merle

 

Leah Litman Natasha Merle. Those New York senators know how to appoint district judges. And I think any of them could be really exciting. Potential Supreme Court nominees. I realize it would be unconventional to elevate someone from the district courts to the Supreme Court, but I don’t think there’s any reason not to. And all of those people are exceptionally qualified. I just want to throw out, like, 3 or 4 other quick names. Brad Garcia, who was nominated, confirmed to the D.C. circuit. I think he is. You know, young was an executive branch lawyer, practice at a law firm. I think he would be a great Supreme Court justice. Rachel Bloom Katz on the sixth circuit. I think she would be a phenomenal Supreme Court justice. She has litigated on behalf of employees. And I think having a public interest lawyer who is actually represented plaintiffs on the court would be incredible. I think getting someone with defense side work. In the criminal legal system would be amazing people who have done work on behalf of incarcerated people. I think Judge Jackson-Akiwumi on the seventh circuit.

 

Melissa Murray I was going to say her.

 

Leah Litman Okay. Yeah. So she is, was the other name that I was going to name. I am definitely, you know, omitting people. But I think any of them would just be fantastic nominees. I think, you know, a possible nominee, honestly, from a future Democratic president, if Republicans control the Senate, could be Toby Hayden’s, out of the Fourth Circuit. You know, he was confirmed with, like, very broad bipartisan support in the Senate. And he wrote, you know, the fantastic concurrence in the Thomas Jefferson admissions case, that I think honestly helped cert proof that case. So that that could be a possibility.

 

Melissa Murray So I also wanted to raise Kandace Jackson-Akiwumi, who is terrific. I also think there are so many good people both on circuit courts and district courts. Araceli Martinez O’Quinn, you know, from the West, she is Chicana. She’s also from a state law school, Berkeley, which is terrific. Lucy Koh would be fantastic, also from the Ninth Circuit. But I also want to just put a pin in if we’re going to be, oh, Carlton Reeves on the Southern District of Mississippi. And this is why I’m thinking of it. If we’re going to be doing history and tradition all of the time now, let’s put someone who’s actually trained as an historian like, and there are lots of people who have gotten joint degrees as lawyers and have history training who I think would be worthwhile. Again, maybe not judges, maybe not even practicing lawyers. Maybe that doesn’t matter since we’re really just cruising on vibes right now.

 

Kate Shaw Put Karen Tani on the Supreme Court.

 

Melissa Murray Karen Tani for the Supreme Court?

 

Kate Shaw Absolutely. Yeah. Historian. Good as they come. Yeah. Can I throw two more names in if we are considering federal appeals court judges Ali Nathan in the Second Circuit. Amazing. And would be the first openly LGBT, nominee. Vanita Gupta, not, you know, somebody who served in the executive branch and lots of different interesting roles and also has been an advocate.

 

Melissa Murray Lisa Monaco also Kristen Clarke.

 

Kate Shaw Yes.

 

Melissa Murray Sherrilyn Ifill.

 

Kate Shaw Yes.

 

Melissa Murray I mean. Don’t you think we need someone on the court who is clearly a friend of the pod?

 

Leah Litman Yes.

 

Melissa Murray Who can drop those Easter eggs in.

 

Leah Litman Oh, yeah.

 

Kate Shaw Oh, there’s so many reasons to be great to have, Sherrilyn. Yeah, absolutely.

 

Melissa Murray Okay. All right. I think we’ve given enough for the next Democratic administration to proceed.

 

Melody Rowell Okay. Our next question comes from Instagram. It is just five short words. Why is Alito like that?

 

Leah Litman That question is above my pay grade. And requires some advanced degrees that I don’t have.

 

Melissa Murray I just think he’s like that because he can be. Because when you have a 63 conservative supermajority, you can do whatever you want. And he was a lot more contained in the earlier part of his career when the conservatives had a bare 5 to 4 majority. So, you know, this full throttle lido that we’re seeing, I think is a direct result of being emboldened by a 6 to 3 conservative supermajority.

 

Kate Shaw Agreed.

 

Melissa Murray Next.

 

Melody Rowell Okay. Two more questions from Chelsea. What books have you read and loved lately?

 

Kate Shaw I just read Help Wanted. Have you guys heard about this? It’s gotten a lot of buzz. It’s Adele Waldman’s new book. She wrote, The Love Affairs of Nathaniel P, which was a huge book some years ago in Brooklyn. It’s so good.

 

Melissa Murray Brooklyn. What does that even mean?

 

Kate Shaw It’s it’s about the like it’s a send up of this, like, Brooklyn literary scene. And this guy Nathaniel, he and his like escapades, literary and romantic and otherwise. And this book is just, like, an amazing kind of workplace story, set in, like, a big box store in upstate New York. That is really pretty incredible. And she did a little bit of like, a Barbara Ehrenreich thing where she is a novelist and moved upstate and just, like, worked at a retail store and wrote about her coworkers. And it’s really amazing.

 

Melody Rowell Sounds good.

 

Kate Shaw Yeah. It’s great. Help wanted, Terrace story. I recently read, which is a really weird and great book, and I will mention two other novels, The Deluge, which is an incredibly long climate fiction book I’ve mentioned before on the podcast. I really like the genre of climate fiction, climate disaster fiction, and it’s like a thousand pages long. But I listen to it and it’s excellent. And then Burnham Wiid, I think I read at the end of last year, I might have even mentioned it in our, Favorite Things episode. And I finally read Parable of the Sower by Octavia Butler, which I’ve never read, which is really, really good in a classic. So those are my recent faves.

 

Melissa Murray So my favorite recent book, it’s been the Trump indictments, the historic charging documents.

 

Kate Shaw Oh, I’m sorry, I omitted that. That was obviously top of my list too.

 

Melissa Murray I’m just joking. I actually started reading James by Percival Everett, and, I think in our Favorite Things episode last holiday season, both Kate and I had Barbara Kingsolver is Demon Copperhead, which is a sendup of Charles Dickens’s David Copperfield. And if you like that twist on a classic novel, you will really like James by Percival Everett, which is, reworked. Gang of Huckleberry Finn from the perspective of Jim, who is the enslaved person who traveled all right with Huck Finn. And I think it’s absolutely terrific in the same vein of sort of inverting the story and switching the lens. Another book that I think is absolutely fantastic. I think at one point it was going to be a movie and someone had purchased the rights to it was Longbourn, which is by Jo Baker, and it’s basically a sendup of Pride and Prejudice, but from the perspective of the servants. And it’s just absolutely fantastic. I it’s like one of my favorite books of all time. And if you want another book that, I’ve read recently, I reread it recently and it’s just trashy and I love it. It is called. The Thorn Birds. And if like, this is a big mini series back in the 80s and it still holds up, it’s by Colleen McCullough, and it’s basically about a hot priest and all of his doings with this family down in, I think it’s Australia in like the period before and after World War two. So love it.

 

Leah Litman So I recently made my way through the Bosphorus. Everything by Sarah Moss

 

Kate Shaw Started that, I started before.

 

Leah Litman I am obsessed with the Court of Thorns and Roses series. I think a court of Silver Flames in a Court of Mist and Fury are definitely my favorite books. And there, I also read the Crescent City series. I loved. Book one was kind of not as high on books two and three. Nonfiction. I read the book on the, Philippines drug war. It’s called Some People Need Killing by Patricia Evangelista. And I found that extremely eye opening.

 

Kate Shaw Melody. You should share yours this morning.

 

Melody Rowell I just finished reading Emily Henry’s new book, Funny Story. And, Leah, have you read it yet?

 

Leah Litman No.

 

Melissa Murray It just came out about a week and a half ago. It is so good.

 

Leah Litman I loved Happy Place.

 

Melissa Murray Oh, also Legacy by Che Blackstock, which is a whole book about race and medicine and what it’s like to be a black physician, I highly recommend.

 

Melody Rowell All right, last question. What Taylor Swift era do you think each justice is in? I like to think Elena Kagan is in her reputation era.

 

Kate Shaw Each of them. Oh, God.

 

Leah Litman We can just name some of them. We don’t have to give them all Taylor Swift eras.

 

Kate Shaw Well, I hope that Thomas and Alito are in the midnights of their career, which is to say, the very final moments. And they’ll be gone soon.

 

Melissa Murray You know, if we get a king for a president, that’s literally fucking treason and you’re going to go to a do a lot for that.

 

Kate Shaw I think that we are joking about this. And actually the danger that the Supreme Court doing the most in that case poses cannot be overstated. Like really going after political adversaries is on the table. Also, like we are obviously joking about this because it’s one coping mechanism, but I think this is also deadly serious. I like just the titles or the vibes or individual songs. This is so hard. I mean, I think that KBJ is, fearless at the moment, and that is great. I think she’s just like saying it all. She kind of started off that way. I don’t think she’s, like, really even grown into it. Neil’s obviously a tortured poet.

 

Leah Litman Yeah. So a few additional thoughts. You know, I think when we did this question last time, I suggested KBJ was in her red era. And I do think that is, like, still partially like the vibe of just like, kind of like joy, mirth and like energy she brings. But I do think that her colleagues and, general fuckery at the core is starting to get to her. So I would put her in her reputation, or at least like the reputation segment of the eras tour, like that kind of energy. If I had to assign someone tortured poets department right now, I say this as a fan of the album, I might give it to Elena Kagan. I just feel like she has some real, like, daggers that she has been throwing, and she has a burn book that she needs to write. Whether it’s telling the lawyer for Idaho a little too humble for women’s health, or the lawyer for Donald Trump, like, that sounds bad, doesn’t it? You know, I just get the tortured poets kind of vibe from her. Justice Sotomayor, I think I would have given her fearless.

 

Melody Rowell I mean, for me, it’s still weird that Justice Thomas is asking questions and arguments. So he’s in his speak now era.

 

Melissa Murray That’s a good one.

 

Melody Rowell Thank you.

 

Melissa Murray I maybe, like. I don’t know, I think Justice Barrett, maybe also Justice Kavanaugh like, like in their lover era, like just, you know, they’re happy with where they are, like, everything’s good. You know, the lover era, I think.

 

Leah Litman Yeah.

 

Kate Shaw I’m forgetting the name of the case is like a weird, really deep cut. But the first case that John Roberts ever argued before the court, he was facing off against Michael Rubin. Who is that lawyer representing the Jack Smith special counsel team. It’s a 1989 case, United States versus Halper. Roberts was a. Because like, that’s how you know, I don’t know. A lot of supreme former Scotus clerks get their first break is there. You know, just as a point to them and that literally that’s what it is. And so he was a rank was Clark got appointed to do the United States versus Halper. And that was 1989. So I don’t know I guess we give him 89.

 

Melody Rowell That’s a good one. Yeah.

 

Kate Shaw Thanks

 

Melissa Murray So I think we got everybody.

 

Kate Shaw All right. Well thank thanks so much. Oh I that was really awesome to get those questions. Yeah I’m sorry that we didn’t get through everything. There were way too many.

 

Melissa Murray It’s so nice to get your questions because sometimes the feedback we get is again, just like we can’t tell Leah and Melissa part. We really wish you all were men. Like we would listen, more if you had kids.

 

Kate Shaw Talk slower, okay?

 

Melissa Murray So all of us, it’s great to get theses questions

 

Kate Shaw That’s not for me. Sucks. Yeah, yeah. So thank you listeners for not asking us those questions during the.

 

Leah Litman And so, just to kind of give you the plan from here on out, now that the court has finished hearing arguments, our coverage and episodes are going to be tied to whatever decisions, Supreme Court releases in West End, because it is about to be time for some really bad decisions. So what that means is we’ll still have regular Monday episodes, but may have occasional bonus episodes on big decisions. So stay tuned for those as well.

 

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Leah Litman Strict Scrutiny is a Crooked Media production hosted and executive produced by me. Leah Littman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell with help from Bill Pollack. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps, especially if you want to leave a review that doesn’t suggest that we become men. Or I stop talking in my voice or other things like that.

 

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