This week Kate and Melissa are live from the Texas Tribune Festival with a couple of dream guests. First, U.S. Representative Jamie Raskin joins to discuss how Congress can rein in our ethically questionable Supreme Court. Then, they speak with activist Amanda Zurawski, lead plaintiff in Zurawski v. State of Texas, whose story tragically illuminates the cost of anti-abortion laws. Finally, a look at SCOTUS’s enabling of voter suppression and the latest shenanigans of the always-spirited Ginni Thomas.

TRANSCRIPT

Leah Litman [AD]

Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when 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. And today we are podcasting live from Austin, Texas. Even the applause is bigger in Texas, I love it. We are podcasting live from the Texas Tribune Festival and we are so delighted to be here. We are your hosts. I’m Melissa Murray.

Kate Shaw I’m Kate Shaw, and we are once again without our wonderful co-host Leah Litman, who is on the mend from a bike accident a few months back, hasn’t yet been cleared to fly, but we truly cannot wait for the three of us to hit the road very soon.

Melissa Murray But in the meantime, we have a great plan for today’s episode. We’re going to flip our usual order, so if you are a regular listener to the podcast, you know we often start with breaking news. We’re going to put the breaking news toward the end, because we have two fantastic guests that we want to share with you and get to them first. Our first guest is someone you may have heard of, Representative Jamie Raskin. Representative Jamie Raskin is in the House. We are going to talk to him all about how Congress could start to get serious about reining in this runaway Supreme Court.

Kate Shaw Yes.

Melissa Murray And after Representative Raskin, we are going to be joined by a true hero and an amazing Texan, Amanda, who’s going to talk with us about her efforts and her lawsuit to keep Texas safe for pregnant people. And as promised, we will finish up with our breaking news segment and spoiler alert. We are going to talk a little bit about how there are some state officials here in Texas and elsewhere who are doing the absolute most to break democracy. Perhaps you’ve heard of them. We’ll talk a little bit about that. And then, of course, it wouldn’t be a strict scrutiny episode if we didn’t have something to say about Mrs. Ginni Thomas, because she stays on her hustle, stays on it. And we’ll talk a little about that. So we’re going to have Jamie Raskin, Amanda Roski, some democracy breaking hijinx and then a little Ginni Thomas chaser, and we’ll be all done.

Kate Shaw All right, so let me introduce our first guest before we bring him out. And as Melissa said for our first segment, we are delighted to welcome to the podcast for the first time, but hopefully not the last time. Congressman Jamie Raskin, who is one of our true heroes and unstoppable champion for democracy and the rule of law, and also, from our perspective, proof positive that constitutional law professors can go on to do great things other than podcasting. To add some Texas flavor to his bio, the Texas Legislature, I just learned this has repeatedly tried to ban one of Congressman Raskin s books titled We the Students. In fact, it was banned by the state Board of Education. He has also been banned from Vladimir Putin’s Russia. So real badges of honor with that Congressman Jamie Raskin. Come on up on stage. Welcome. And thank you so much for joining us today.

Melissa Murray I could see Russia with love. Indeed. So, Congressman Raskin, you were just at the Democratic National Convention in Chicago, and I was there. You have to say the vibes were immaculate, right? People were really, really excited. And obviously nothing is guaranteed, right? There’s going to be an all hands on deck effort to not only register new voters, but to turn out the vote in overwhelming numbers so that the Democrats can win in November. But it does seem like there is a real possibility that the Democrats might run the tables and take the white House and maybe both houses of Congress as well. If that happens, what are the legislative priorities ahead for you and your caucus, and how does the Supreme Court and court reform fit in there?

Jamie Raskin All right. Thank you, Melissa, for having me. And thank you, Kate. And, yes, our, soon to be president got an immaculate reception, at the convention. It reminds me somebody from Planned Parenthood sent me, a poster saying, voting prevents unplanned pregnancies. I love it. But, you know, it’s not a big mystery because it’s everything we’ve been trying to get through, but the Republicans have been blockading. I mean, we passed the John Lewis Voting Rights Act to repair the damage that the Supreme Court did in Shelby County versus holder. We passed the For the People Act so we could abolish gerrymandering in America. And, have some free and fair elections. I’ve been traveling across the country and everywhere I go, I mean, I was in Tennessee, as in North Carolina and Texas. I mean, the Democrats are at least in a 5050 posture in a lot of these states, like North Carolina. We’re winning the statewide elections, but then we’re gerrymandered into oblivion. And a sixth grader can do that with the computer technology. Right? So, which means the Republicans can do it. So they’re so they’ve been doing it to us. So anyway, you know, I am very interested in the democracy agenda. We’ve got to get past, right away. And, you know, when we say we’re defending democracy, that’s not just a static collection of institutions and practices. Democracy is always a project in motion. It’s something unfinished. And so just starting off with, for example, the presidency, it is 2024. Shouldn’t we be electing the president the way we elect governors and representatives and senators, mayors, whoever gets the most votes wins, right? So, you know, we will be pushing hard for that. But, you know, obviously, as the party that believes that government should be an instrument for the common good rather than private money making for the guy who gets in and his family, we have a big agenda, and we want to continue to fight for health care as a right for everybody in the country. And that’s something that we’re going to get done. And, you know, so we’ve got a big agenda that everybody knows it’s what we’ve been fighting for, but we’ve been blocked from doing because of all of these anti-democratic mechanisms like the gerrymandering, voter suppression, filibuster, the Electoral College and.

Melissa Murray Like the Supreme Court.

Jamie Raskin And the Supreme Court especially. So and I think that the court is going to be central to, to, for us to deal with, because if we do our job right, and we will and we win resounding majorities in the House and the Senate and we win the presidency as I think we will, then, that just sets the table for the fight. We will pass legislation to guarantee, women’s right to choose to restore a right that women had for more than a half century in America, but that was stolen away by Donald Trump, as he’s bragging around the country by stacking and packing and gerrymandering our Supreme Court. But the thing is, is that even if we passed it in the House, we pass in the Senate and President Harris signs it. The Supreme Court could strike it down. They could say it’s outside of our powers under section five of the 14th amendment, outside of our powers, under the Commerce Clause. And certainly Sam Alito would do that, and Clarence Thomas and Neil Gorsuch. And, you know, it’s quite possible a majority would just strike it down. And that’s true of almost anything we’re talking about doing, whether it’s, repairing the damage inflicted on the Voting Rights Act. I mean, it’s been happening, in terms of the college loan work we’ve been trying to do, they, you know, pulled a rabbit out of a hat and invented that new doctrine, the major question doctrine, and if you can.

Melissa Murray The fiction, it’s fan fiction.

Jamie Raskin Fan fiction. I mean, it’s like the stork brought that, you know, where did that come from? So anyway, so the Supreme Court is going to have to be very much within our sights.

Kate Shaw And can we just drill down a little bit on the specifics? Because that was a very ambitious legislative agenda you just sketched out, and rightly so. Democracy reform, restoring a right to choose health care. But of course, any of those legislative initiatives, as you just suggested, could run into the buzzsaw of this hostile Supreme Court. Whether it’s the major questions doctrine, whether it’s a constrained view of Congress’s power under the Commerce Clause or Section five of the 14th Amendment, I mean, this court will have tools at its disposal to invalidate much or all of what you just listed. So I guess our question is how high on the kind of policy priority list is Supreme Court reform are we talking about? Should that be rolled into a democracy reform legislative package? Should it be separate? And would it be a first week, first month, first 100 days kind of priority? Where does Supreme Court reform? Because from our perspective, it is inextricably bound up with these other priorities that you just listed.

Jamie Raskin Well, I agree with that. And obviously that’s going to be up to President Harris and Tim Walz and, you know, the members of the House and the Senate to form the actual day by day agenda. But it’s a very ambitious and robust agenda. And we understand that, the Supreme Court is not some extraneous detail. I mean, this is going to be central to our ability to get anything done. And President Biden has laid it out in his reform package. I’m sure you guys have talked about it. You know, moving to 18 year terms, we’re really the only Western democracy where people have this lifelong sinecure. And we can limit their terms just as long as they can keep their job somewhere in the federal judicial system. And, you know, I feel strongly that, you know, we’ve got 13 federal circuits in America, and we only have nine justices, which means that four federal circuits are going to be left out at any point today. It’s much worse than that. The the the big majority of circuits are left out because five of our justices come from New York City alone, one for each borough. Okay. Yeah. So, yeah, I mean, I, you know, I love to visit New York like the next person, but, let’s not take a good joke too far. I think, you know, this would be an opportunity to say, the Supreme Court should be constituted in a way such that people from all over the country are represented. And you don’t get this packing of the court by Federalist Society hacks. So I think we can make a very strong argument to the country that this is something that needs to be done. And, if we don’t, then we could be looking at a sustained period of conflict between the political branches and the ultra political. Branch, the Supreme Court.

Melissa Murray To alter political branch. I love that, you mentioned cures. Can we talk about Clarence Thomas for a minute? Jessica. Good salary. Great segue way. We’ve heard over the last couple of months about some of the justices really having emotional support, billionaires who provide them with untold largesse, whether it’s private jet travel and vacations and boarding school tuition, all those things. You and Representative Alexandria Ocasio-Cortez have sponsored. Yes. Sponsored a bill. It’s called the high court grift. I’m sorry. The high court gifting. Could go either way. Honestly, the High Court gift ban that would prohibit the justices from accepting any gift valued over $50 and from accepting gifts that exceed, in the aggregate, $100 in a calendar year from any single source is not enough.

Jamie Raskin That’s the rule that applies to us in the House, and it’s the rule that applies to everybody in the executive branch. Of course, you wouldn’t know that from Donald Trump and the millions of dollars of emoluments from foreign governments he pocketed, you know, from Egypt and Saudi Arabia and the United Arab Emirates and Indonesia and so on. And you wouldn’t know it from Clarence Thomas, who has taken more than $4 million from his billionaire sugar daddy, Harlan Crow. So, I mean, from our perspective, it’s just unbelievable and outrageous that this is going on. And it is reflective of the profound jurisprudential corruption of the court, which is, of course, an even bigger deal. But they go hand in hand with each other. I mean, it’s just a, moneymaking, opportunity for them. They think that they like, Donald Trump. They’re above the law. They’re beyond the law, too. And we’ve got a neo monarchical, neo oligarchical Supreme Court.

Kate Shaw You know, so let me ask you a follow up question on ethics, not give specifically, but in the neighborhood. So you have been laser focused on Supreme Court ethics for quite some time. And so we can’t resist asking for you to comment on the latest bombshell reporting from ProPublica. And that’s kind of like an evergreen tease, because there has been so much great reporting from ProPublica. But we’re talking specifically about reporting just last week about a call with top donors to the first Liberty Institute, which, if you’re not familiar with them, is a major Supreme Court litigator responsible for big cases, including the praying football coach case, Kennedy versus Bremerton and the school funding case, Carson versus Macon. Anyway, on that phone call, the head of First Liberty read aloud from an email that a member of the group received from Ginni Thomas.

Melissa Murray She stays on her email like she’s always emailing.

Kate Shaw Sometimes texting, but also.

Melissa Murray Texting.

Kate Shaw Sometimes this is email. So in the email, Thomas thanked the group for opposing Supreme Court ethics reform, saying, quote, I cannot adequately express enough appreciation for you guys pulling into reacting to the Biden effort on the Supreme Court. And then she continues in all caps. She really likes the all caps, all caps. You guys have filled the sails of many judges. Can I just tell you thank you so, so, so.

Jamie Raskin Much today, the sailboat to the hurricanes.

Kate Shaw We have to.

Melissa Murray Be disciplined.

Kate Shaw Of the sailboat there. We have the land yacht. Yeah, or maybe a real yacht being in the offing. So I guess, what do you make of this? Who are who could be the many judges. Ginni references in that email and say, I can’t decide what to make of how brazen write an email like this is. Is it that they’re running scared or that they genuinely believe they are untouchable? Which is it? And what is your reaction?

Jamie Raskin Well, both. I mean, they believed they were untouchable. Up until the Democratic majority got awakened and enlightened and engaged. And that’s really going to be our only safeguard against that kind of judicial tyranny and political tyranny in the country. But I’m glad that Kelly Shackleford read that and that ProPublica got Ahold of it, because it tells us, you know, if anybody on our side got caught doing the kinds of stuff they’re doing. People would say, oh my God, we took $4 million. Let’s follow the rules scrupulously now. Let’s do the right thing. They just double down and they go back and like, they want to keep the grift going. And, you know, Ginni Thomas is out there saying, you know, thank you so much for defending us against the Democrats who are so brazen as to want to impose an ethics regime on the Supreme Court. Right. It’s the highest court in the land with the lowest ethical standards, the only court that doesn’t have a binding, ethics code. But that’s what we’re up against. And, you know, I don’t mean to pick on Ginni Thomas because, you know, you can pick on Martha and Alito for a while. The who has unflagging fervor for this, you know, for MAGA. By the way. You know, the the good name of, the appeal to Heaven flag has been, dragged through the mud because of her. That was a revolutionary Democratic flag that was flown against Great Britain by, radical pro Tom Paine, Democrats in the 18th century. And they, of course, have usurped it and appropriated it. But, there’s nothing wrong with that flag except the fact that they’ve tried to steal it, but, we’re we’re taking that flag back along with the American flag from these people, because it’s not safer that.

Melissa Murray So I love this energy. The energy I also love. It’s coming from none other than Joseph Robinette Biden. Because since stepping down, President Biden literally has zero FS left in the tank. Right. So he has announced his own proposal for Supreme Court reform, and it includes ethics reform. It also proposes a constitutional amendment that would overrule Trump versus the United States. That was the recent decision that gave the president sweeping immunity to crime within, you know, unity.

Kate Shaw Yes, exactly. This was this is the last line of the Sotomayor dissent. For those of you who haven’t committed it to memory with fear for our democracy, I.

Melissa Murray Dissent also available at the crooked store.

Kate Shaw Wherever you buy.

Melissa Murray Or whoever you get, your a great stuff. What do you think about a constitutional amendment? This would not only reverse that decision, it would also keep presidents from being able to pardon themselves, since that’s a gray area in the Constitution. Is that something that we need to get done? Is that a legislative priority as well?

Jamie Raskin Yes. Well, let me just say one thing about, about Kate’s t shirt, about, you know, fear for our democracy. I dissent when we talk about democracy. Now the Republicans get up in Congress and they say we’re not a democracy. We’re a republic. Yeah. And they think they said that.

Melissa Murray And it sounded better in the original German.

Jamie Raskin Yeah. Well, you know, they think they’ve struck some kind of major blow in political philosophy against us, but that a republic is just a representative democracy, that’s all a republic is. Okay. And we you know, we started as a slave republic of white male property owners over the age of 21. But through social and political movement and constitutional amendment and change, we’ve grown much more into a democracy, a more perfect union. What our last great Republican president, Abraham Lincoln, called, government of the people, by the people, for the people. And we’re moving closer to it. And we got to get back on the growth track to that. So, you know, on a, you know, a constitutional amendment is obviously, you know, that’s a tall responsibility with the two thirds vote in the House, in the Senate, and three quarters the states, the Republicans are obviously going to oppose it. I think it’s fine to talk about constitutional amendments and to plant the flag of where, where we want to go. We probably have a better chance of, changing the composition of the court to make it fair, and getting the court to reverse that outrageous, egregious decision overturning two centuries of understanding that nobody’s above the law, including, the president. But, you know, in a statutory sense, I’m going to be introducing legislation which will say that the president is subject to the criminal law categorically across the board, which, he has been for, American history. Whenever the powers are powers that are granted by Congress. So maybe we can’t do something about the organic constitutional powers that, the mega court talked about the core functions where, you know, Donald Trump can now sell pardons, undoubtedly, if he were to get back into office, which he won’t. But if he were, he would go on eBay and start selling pardons. Why not? Because the Supreme Court has said it’s a core executive function. Yeah. And he he can’t be, criminally prosecuted for, anything that he does there. I mean, it’s just utterly incoherent, insensible, doctrine that nobody thought that they would do. And.

Melissa Murray Even we were flawed. I mean, we were not predicting a decision as sweeping and monumental as the one that.

Jamie Raskin You know, I thought they were just trying to slow it down.

Melissa Murray So that’s what I.

Jamie Raskin Thought, too. There would be no, no trial. But no, they’re far more ambitious than that. They really have neo monarchical ambitions. And, they all thought that Trump was going to be president. They thought that, you know, it was inconceivable to them that President Biden would do what he did because Donald Trump would never put his country above his own political ambitions. And so let’s hear it for the great president, Joe Biden, for what he did.

Kate Shaw So some things like constitutional amendments, there’s a very, you know, high hurdle to actually getting that to happen under article five of the Constitution. But ordinary legislation, whether we’re talking about things like expanding the size of the Supreme Court or seeking to reverse at least most of the Supreme Court’s misguided decision in the immunity case, that’s something that just requires a Democratic Congress and a Democratic president and maybe filibuster reform. But in terms of thinking about other things that do require supermajorities, we wanted to ask you about your colleague AOC, who has introduced articles of impeachment, right, with respect to Justice Thomas and Justice Alito, so that two, you know, something about impeachment, actual removal requires, of course, another supermajority vote in the Senate, although just a simple majority vote in the House to initiate the impeachment proceedings. What is your comment on the, you know, utility, whether from the perspective of kind of public messaging or actually successfully seeing something happen in the Senate with pursuing impeachment against those two justices?

Jamie Raskin Well, the constitutional standard is we constantly remind the Republicans who just want to impeach people they disagree with. Is that of high crimes and misdemeanors. So the question is whether Justice Thomas has engaged in high crimes and misdemeanors, in accepting millions of dollars and then systematically failing to report it, according to the disclosure, the minimal disclosure regime we’ve got. And, you know, the I, I don’t think there’s anything remotely frivolous about that. I think it’s raising concerns of a serious constitutional dimension. Obviously, with the Republicans in control of the House, it has a symbolic quality, to doing it. And we would undoubtedly need to do a much more detailed factual investigation. And there have been impeachment drives against Supreme Court justices in the past. I mean, of course, the the right wing wanted to, impeach Earl Warren for Brown versus Board of Education. And you know how they transmogrified a Supreme Court decision implementing the Equal Protection Clause into a high crime misdemeanor is beyond me. But that’s why I’m saying AOC, has raised a serious point about being ethically compromised to the point of millions of dollars, with respect to a guy who has an actual business before the court. Yeah.

Kate Shaw All right, so we gotta let you go soon. We got a couple more final questions. And one is. So at the DNC, you and Senator Whitehouse actually did a panel that Melissa moderated. And when she asked you why there hadn’t been more Supreme Court talk on stage at the DNC, I think you mentioned that you had submitted a very long, 5000 word ish speech to the convention organizers, largely about the Supreme Court, but that, you know, time imperatives had led you to cut it down to about 500 words. Yeah. So I.

Melissa Murray Think they gave your words to Oprah.

Jamie Raskin I think Bill Clinton got. Yeah.

Melissa Murray Maybe you might have taken that. Just taken.

Kate Shaw That was not 500 words. Definitely not. So I guess, you know, two part question. One, why aren’t Democrats making more space to talk about the Supreme Court? And then two, we don’t have time for the full 5000 words, but we would be happy to be your shadow DNC and give you back some of that time that you would have devoted to the DNC.

Jamie Raskin I’ll give you all my great JD Vance material I had to drop before that, but we love it. So yeah, I mean, yeah, Melissa and I had a little tangle over this at the Democratic convention.

Melissa Murray So what’s it, a tangle?

Jamie Raskin Well, you you you were, as always, being perfectly objective and dispassionate. And I’m always looking at, like, a total ardent Democratic partizan, you know, and I mean, look, I feel that the people have put the Supreme Court back into action, because of the Dobbs decision. And the Democratic Party is all over that. I mean, freedom is the central component of our campaign, freedom and democracy. And Lincoln told us the relationship. He said that, democracy is the beautiful silver frame upon which the golden apple of freedom rests. Right? We don’t have freedom without democracy. The autocrats in Moscow and the kleptocrats and plutocrats in Mar-A-Lago, in the theocratic with Mike Johnson in MAGA, are not going to protect our freedom. The Democrats are going to do that. We are the ones who are going to do that. So I think we are talking about it, but I guess we’re talking about it the way politicians do, which is what is most of most immediate concern to people like the right to choose and whether you can cross state lines to get health care. And, you know, I guess it’s just a two step operation. Getting back to the Supreme Court, I think people understand it’s the court that is, bearing down on everybody’s liberty and freedom.

Melissa Murray You know. So. I love that. I love the contrast between plutocrats, oligarchs, theocratic, and democrats. And I love everything you’re doing. We are always happy to tangle with you, Jamie Raskin, because Ginni Thomas works hard, but Jamie Raskin works harder. Thanks so much for joining us. We know you’ve got to get back to Washington.

Jamie Raskin All right. I owe you some JD Vance jokes that you do.

Melissa Murray You do? Thank you. Okay. That’s a hard act to follow, but I am confident that our next guest is more than up to the task. Please welcome in strong, Strict Scrutiny fashion a true Texas hero, Amanda Zurawski.

Kate Shaw It’s such a pleasure to actually finally meet you in person, Amanda. Regular listeners in the pod will be familiar with your name and with your story. Among other things, you were the lead plaintiff in Zaretsky versus Texas, which is a case that you and others brought to try to make sure that other Texans would not have to go through what you went through, which is the catastrophic denial of a medically necessary abortion. We have talked about that case on the pod before with your wonderful attorney, Molly Duane, from the center for Reproductive Rights. So can you tell us a little bit, just to start about your decision to bring that lawsuit? Yeah.

Amanda Zurawski So to be completely honest, I was quite skeptical at first. Very soon after my experience, my husband Josh and I started speaking out about what happened to us just because we were terrified that this was going to happen to other Texans, other Americans and other banned states. And as we were speaking out and through our advocacy, people kept asking us, are you going to sue or are you going to sue? And I thought, well, no, why would I ever sue? You know, I’ve never had a lawyer before. I don’t I don’t know how this works. And after being connected with the center for Reproductive Rights, I said, well, you can sue the state of Texas, which sounded ludicrous. How do you sue a state? Apparently you can’t. And so we, you know, started putting together this idea of this lawsuit. And the more we talked about it, the more I got to thinking this is really a win win situation because on the one hand, we win the case. Yeah. On the other hand, we lose. But the state of Texas and Ken Paxton very publicly out themselves as being anti-women anti pregnant people, anti freedom. And we realized that if that happened hopefully people would hear about this splashy lawsuit and maybe it would start changing hearts and minds and ultimately votes. And so the Supreme Court of Texas did rule against us in May, which was not altogether surprising. But what we’ve seen since then is this real mobilization of folks not just in Texas, but across the country that are pissed off and they’re fighting back. And so I think it made an impact.

Melissa Murray It certainly made an impact on, you know, who also impacted when Hillary Clinton and her daughter, Chelsea Clinton, who were so taken by your story that they decided with their production company, Hidden Light, to make a movie called Zorro Versus Texas, which is all about your story. So where can I watch this?

Amanda Zurawski Great question. So it’s a documentary. It just premiered at the Telluride Film Festival last weekend. And it was produced by Hillary Clinton, Chelsea Clinton, and then also Jennifer Lawrence.

Melissa Murray If you’ve heard of her.

Amanda Zurawski She’s pretty popular actress. So as of today, Friday, September 6th, as far as I know, there’s not distribution, but we’re very hopeful that it will get picked up. And everyone in America can see it soon.

Melissa Murray I want to see that.

Kate Shaw And and he actually so as you mentioned, the Texas Supreme Court ruled against you this past spring. That was after a victory right in the trial court. So we actually an earlier episode of the podcast read some of the transcripts from the trial, because there was just unbelievably wrenching testimony from a number of the plaintiffs in the case who really bared their stories for exactly the kinds of hearts and minds reasons that you just listed. And it’s interesting to hear that from the outset. Maybe everybody understood that actually winning this case would be amazing, because it would make real medical exceptions to savage abortion bans like the Texas ban. But losing the case would potentially have some real value too, in that people would be exposed to some of the stories that you and the other plaintiffs brought to the court and now are bringing to the screen, which I assume will be picked up, but hopefully people will be able to hear that story. So so that’s the kind of genesis of that lawsuit and the film. And they both, I think, make clear that the consequences of the denial of a need, an abortion for individuals, for spouses, for families are catastrophic. There’s recent reporting just last week out of Texas about some of the catastrophic effects of abortion bans, like Texas says, even beyond their effects on pregnant people in their families.

Melissa Murray So there’s been reporting that after SB eight, which is the Texas heartbeat law that has that bounty hunter provision, all of the things that not only is Texas terrible for pregnant patients who need medically necessary abortions, it’s actually terrible for infants who are born in the state of Texas. Infant deaths in Texas after SB eight rose by 13%. That’s a stunning figure in a modern democracy, and seems completely antithetical to this pro-life ethos that ostensibly guides Texas AG Ken Paxton and Texas Governor Greg Abbott, who also doesn’t seem to know how menstrual cycles work. Are you there? God, it’s me, Greg Abbott. Amanda, for those who are seeking to raise a family in healthful conditions in Texas, these policies don’t seem to cohere with a pro-life for the whole life kind of mentality. How would you like to see the state of Texas respond? And what sort of public policies would you like to see the state enact to make this a healthful place for families?

Amanda Zurawski You know, it’s it’s very simple. I think that I want politicians to stay out of it. I don’t want them making decisions with me. And my doctor. It’s. It’s. It’s none of their business how and when and if I choose to have a family. I don’t want them in these conversations. You know, throughout my fertility journey and throughout my pregnancy, I spent a lot of time in doctor’s offices. And, you know who wasn’t invited? Do you know who wasn’t missed in my doctor’s office? Donald Trump, JD Vance, Greg Abbott, Ken Paxton. No thank you. I don’t want them anywhere near my doctor’s office or my family’s decisions.

Kate Shaw All right. So you just referenced your family, and we wanted to ask you to talk a little bit about the role of men in the fight for reproductive justice. So in June, we were actually fortunate enough to have the amazing second gentleman on the podcast, Doug Emhoff. You know, that’s an issue that he has recently been very, very focused on. And there was also a great piece last week in The Washington Post about how a lot of men, including men in deep red states, many who either thought they didn’t have very developed views on abortion or actually thought they opposed abortion, have become fierce defenders of abortion rights after seeing their partners really brutalized by restrictive state abortion laws like the one in Texas. So can you talk a bit about what this experience has been like for your husband? Josh has also been a real voice on this issue. Yeah.

Amanda Zurawski The second gentleman, first of all, is a great partner, a great ally in this fight. We’re very happy to have him on board. And I think my husband is too. And you might have seen him on stage with me at the DNC in Chicago. He spoke with me, and I think he did a great job. And he made he made a really good point that this isn’t just a women’s rights issue. This is about an individual and their human rights. This is about families and their rights. And I hate that it would take for someone’s family going through what I went through for men to get on board and see how it can affect them. But I think that we’re starting to see that change with folks like Doug Emhoff. My husband, Mark Hamill, by the way, is a great ally. I love how I love having the Skywalker on the team. Welcome. And so I think as we see more men speaking out and and explaining how this is an issue for every American, we’re seeing these conversations kind of trickle down into people’s, living rooms and around their kitchen tables. And while they’re watching football, like, did you think you were going to be talking about abortions while you’re watching the chips? Maybe not, but here we are. And, you know, that’s that’s what I think it’s going to take. And I think, we are really starting to see see this happen across the country.

Melissa Murray So, Amanda, when the Supreme Court overruled Roe versus Wade in 2022 and Dobbs versus Jackson Women’s Health Organization, they said they were removing this question from the national conversation and instead giving it to the states to decide for themselves. But since Dobbs, what we’ve seen is that when the people in the States have the opportunity to directly register their preferences for reproductive freedom at the ballot box, they overwhelmingly vote to protect, preserve, and even expand access to abortion. There are states, however, where intermediaries don’t seem to like all of this democracy, and they have tried to thwart efforts to put abortion on the ballot. For example, neighboring state of Arkansas, where just last week, the Arkansas Supreme Court voted 4 to 3 against letting voters decide whether to add an amendment to their state constitution that would protect abortion rights. Are there avenues here in the state of Texas for individuals to express their support for reproductive rights, beyond simply protesting and speaking out, like, what can you do as a sort of democratic vehicle to make it clear to the Texas Legislature and your elected officials that reproductive freedom is top of mind for Texans?

Amanda Zurawski Well, first of all, you can show up in November and you can vote and you can vote for pro-choice candidates. Unfortunately, we don’t have the option here in Texas to do a ballot measure. But something that a lot of folks in our state don’t know in other states is are Supreme Court justices are elected. There are three this year who are up for reelection. They are three who ruled against us in our lawsuit. And, you know, I do want to point out that these these state measures are great. And the work that people are doing in states where you can have a ballot measure, it wins. It’s fantastic work. But if we elect Donald Trump, it’s not going to matter because he will enact a national abortion ban. And this is going to be a problem in every state, no matter whether you have it on the ballot or not. And to your point, we know that this is a very unpopular opinion. Most Americans do not agree with bans. They do not agree with restrictions on reproductive health. And we’re seeing MAGA Republicans walk back their previously stated opinions because they know that it’s unpopular. But let’s be clear Donald Trump and JD Vance do not support IVF. They will impose a national abortion ban, and we have to do everything we can to make sure they don’t get reelected.

Kate Shaw And we do want to follow up an idea, but actually, just since we’re talking about the state Supreme Court, I did want to shout out an organization we actually mentioned last week on the podcast, a new organization called the Find Out PAC, whose founder, Gina Ortiz Jones, is trying to lay the groundwork for changing the composition of the Texas Supreme Court, where there are multiple justices on the ballot this fall. So that’s a long term effort, but it’s one that it’s really, really great is underway right now. So did want to shout them out since we’re here in Texas. So on IVF which you mentioned Amanda. So a lot of people will know your name because of your advocacy around access to abortion. But you have very much also used your voice to speak out about IVF. So can you talk a little bit about your experience with IVF? And you know, you’ve drawn a straight line between restrictive abortion laws and laws restricting access to IVF. How do you understand the relationship between the two?

Amanda Zurawski Yeah, so I just tick all the boxes for the freedoms that MAGA Republicans want to take away. So as a result of what I went through, there’s no permanent damage to my reproductive organs. So our doctors have advised us to go straight to IVF and to use a surrogate if we want to have biological children in the future. And when the Alabama Supreme Court ruling came out earlier this year, we saw a lot of politicians saying a lot of things that made it very clear they have no idea what they’re talking about.

Melissa Murray I believe you’re talking about Tommy Tuberville.

Amanda Zurawski Well, and our own governor, our own governor, was talking about, you know, if you’ve got these embryos, it’s a very delicate situation. You don’t know what’s going to happen. What if the couple splits up? What if one of them dies? We just don’t know what would happen. This is very delicate. Well guess what? You know what’s going to happen. Have any of you ever done an egg retrieval IVF? Okay, so let me tell you, before you even start the process, you know what’s going to happen to those embryos. You sign so much paperwork, you know exactly where they’re going to be stored. What what what would happen to them in the event that you split up, someone dies. So if Josh dies, I might not be able to figure out how to use our Apple TV. But I know damn well where my embryos are and what’s going to happen next. So it was just very clear that these politicians have no idea what they’re talking about. Yet somehow they think that they’re in a position to be able to tell us what we can and can’t do in these situations that they have no experience with. And so they’re trying to restrict us on both sides, having no information, no real personal information. And it’s just, you know, again, stay out of my business.

Melissa Murray It’s actually so searing to hear you talk about your experience in this way. You wanted desperately to have biological children, and you have this horrific experience. It’s compromised your fertility going forward. And now there’s the prospect of limiting access to IVF. And again, this is the party of life. I mean, like, I mean, let that sink in for a little bit. We are so grateful for the work that you’ve done. If you’ve been so brave and courageous to share your story with so many and so many people will learn from what’s happened to you, and we’ll share your story and hopefully use your experience to inform the way they move forward in this election cycle. And so you are truly a hero to us, and we’re so grateful to have had you here on the podcast. Thank you so much, Amanda. And. Well, we have really dragged the state of Texas for this.

Kate Shaw Deservedly so.

Melissa Murray Does it? Well, and we still have time. So there’s more. We have to give the people what they want. Okay. All right. Our breaking news segment, which we promised we would get to. And now this is that time we’re going to focus on some of the voter suppression that has been enabled, whether directly or indirectly, by the United States Supreme Court. But we really want to focus on the voter suppression efforts that are happening right here in the great state of Texas, as well as in Arizona and Nebraska. So we’re going to talk about that.

Kate Shaw We are, but we are first going to talk a little bit more about House Thomas.

Melissa Murray Oh okay. Clarence. Always good for that.

Kate Shaw So we talked a little bit with Congressman Raskin about it. There is a little bit more to say. It seems like someone might have been feeling a little Martha and FOMO because Jenny, after laying low for some time, is back.

Melissa Murray Very relatable.

Kate Shaw So, of course, we talked about the call with First Liberty Institute, in which the email from Jay Thomas was read aloud. Let’s talk a little bit more about the context. That is what exactly? First, Liberty was involved with that Jenny was praising in the email. So as Kelly Shackelford of the first Liberty Institute recited Jenny support, what exactly was the first Liberty Institute activities that Jenny was thanking First Liberty for? Well, an effort in Shackleton’s view, spearheaded by people in the progressive extreme, left us. It me, upset by just a few cases. Shackelford also referred to Justice Elena Kagan, who has voiced her support for a binding ethics code in pretty shocking language quotes.

Melissa Murray Can I can I do this in a voice.

Kate Shaw When we do live shows? Melissa does voice. So yes, take it away.

Melissa Murray So this is the Kelly Shackelford quote about one Justice Elena Kagan that is incredible, somewhat treasonous. What Kagan did, the chief justice rules the court. They’re trying to keep the other branches hands off of them. And then you’ve got Justice Kagan from the inside really being somewhat disloyal and somewhat treasonous in what she’s doing.

Kate Shaw So somewhat treasonous.

Melissa Murray So Elena Kagan, somewhat treasonous.

Kate Shaw Colleague of one Clarence Thomas. Yeah. Now, this is to be clear, not this was not in Jenny’s email, but this is the kind of tenor of the first liberty.

Melissa Murray This is what she’s.

Kate Shaw Scores that Thomas is praising.

Melissa Murray So she literally fixes her face to write an email to this group that has business before the court where her husband works, that is praising efforts to stop Supreme Court reform. And also, she is praising this group’s tagging of her husband’s colleague as somewhat treasonous, a traitor. You mean like, yeah, no decorum, no judgment.

Kate Shaw This as to what Congressman Raskin was saying? This, I think, is sort of proof positive that court reform actually really does matter, and that they are those who oppose it are very, very nervous about what it might mean. And so you have a group out here opposing Supreme Court reform. And Ginni Thomas is so buoyed by this that she actually writes a thank you note.

Melissa Murray How about her first Liberty note?

Kate Shaw Yeah. So that was really something. But that is not all from House Thomas in that Justice Thomas was recently invoked in a DC courtroom but a little like Beetlejuice.

Melissa Murray Beetlejuice. Beetlejuice. So, okay, I’m this actually seriously wowed me. So there’s a hearing last week before Judge Tanya Chuck in in the district of the District of Columbia in the January 6th election interference case that Jack Smith has brought. Again, this is the case that was really stymied by the court’s ruling on presidential immunity. Much of this hearing was devoted to how to address the concerns raised in that July 1st immunity decision from the court. But Donald Trump’s team also told the court in that hearing that in addition to resolving the questions about what were official and unofficial actions, they also wanted the chance to argue that Jack Smith’s appointment as special counsel was entirely unconstitutional. And judge Chuck can seem very skeptical of the Trump team raising this argument at literally the 11th hour. But it is worth noting the Trump team was actually successful in using this line of argument to get Judge Aileen Cannon in the Southern District of Florida to throw out the Maria Lago documents case on this ground. But in DC there is actually binding DC circuit precedent on this very issue. And to the contrary. Saying that the special counsel appointment is entirely constitutional. But and this is the big part, according to Donald Trump’s lawyer, they should be allowed to raise it now because, quote, Justice Thomas directed us to raise this issue and quote.

Kate Shaw I really. Oh, really? That’s what Justin said. Oh, really? She literally said in a lawyer’s. He directed you to raise this.

Melissa Murray I have so many questions about the Federalist Society and its reach at this point. Trump’s attorneys likely were referring to to Justice Thomas’s concurrence in Trump versus United States, which called into question the constitutionality of the special counsel appointment. But again, the language is so specific that it does give me pause.

Kate Shaw Was there an email?

Melissa Murray I don’t know, I mean, like, is Ginni Thomas going to write a note thanking them as well?

Kate Shaw Potentially eight. Stay tuned.

Melissa Murray I think this is wild. I mean, people haven’t been talking that much about it. I really think they need to.

Kate Shaw Well, John King did say they could file their brief raising this issue, but I suspect that she is going to say, you know, a big no. And, you know, they could try to take the case back to the Supreme Court yet again.

Melissa Murray And then we’ll really know if Justice Thomas Justice Thomas made me do it. Anyway. It just the fun just never ends. With House Thomas. But let’s move on from House Thomas, and let’s pick right up here in the Lone Star state where you’re governor. Are you there? God. It’s me. Greg Abbott has issued a press release bragging that the state of Texas has purged over a million people from its voting rolls since 2021.

Kate Shaw That’s right.

Melissa Murray Democracy in action. Most people have not heard of a case called Husted versus a Philip Randolph Institute in the way that they’ve heard of Shelby County versus holder, which we talked about already. But can you explain this case and its relevance to the voter rolls purge?

Kate Shaw It’s one of these under the radar Supreme Court cases from a few years back that give states virtually carte blanche to purge their voter rolls. And to be clear, federal law requires states to do a degree of maintenance of voter rolls because people move out of state and they die. And it is important to maintain voting rolls. But Ohio, in that case, was wildly aggressive and basically starting the process of kicking people off the voting rolls if they failed to vote in one federal election. And the Supreme Court said nothing to see here, and five four allowed Ohio to do what it was doing, which it has basically given a permission structure to states to ever more aggressively purge individuals for reasons like just not voting in a single election. Now, to be clear, we do not know of the 1 million plus individuals removed from the rolls that were in this announcement. How many of them are in the category of moved or passed away? But the Supreme Court has essentially allowed states to do the most on the purging front. And that is just one of the really disturbing developments out of Texas in recent weeks when it comes to access to voting.

Melissa Murray So another disturbing development, the announcement of the million voters purge followed raids that were conducted by Attorney General Ken Paxton, office that included a raid of the leadership of Lula, which is the League of United Latin American Citizens, a major group for protecting the voting rights of Latinos in the state of Texas and elsewhere. In addition to several Democratic officials, these raids targeted 87 year old Lula volunteers and other members and leaders in the group, and their homes were ransacked. Their electronics were seized. All of this apparently in an effort to determine if they were doing improper things like trying to register voters.

Kate Shaw And underwriting these activities as well, is the Supreme Court because it has accepted, in cases like Crawford versus Indiana case involving voter ID requirements, it is accepted these baseless allegations of voter fraud as justifications for evermore, both restrictive voting laws and aggressive interventions like this, again predicated on the desire to detect fraud. Absent any evidence that fraud is happening on any kind of widespread scale. So the Supreme Court’s fingerprints are on these kinds of raids as well.

Melissa Murray So purging voters, raiding those, the homes of those who are trying to protect the vote for their constituencies. So that’s what’s going on in Texas. Moving across the map, let’s go to Arizona. And again, we saw the Supreme Court’s fingertips, fingerprints and their fingertips because they have their fingers in everything even more directly. So in a 5 to 4 ruling that let Arizona enforce its proof of citizenship requirement for voting, the Supreme Court essentially blessed this and said it was okay for Arizona to do this, at least for voters using states rather than federal forms. So that’s going to have a major impact on the vote in Arizona, going into every closed state, even every.

Kate Shaw Single one of these decisions, that on the margin makes it harder to register or removes people from rolls or makes it harder for them to vote, could tip a close election. So the stakes just could not be higher in each and every one of these states.

Melissa Murray Moving on from Arizona to Nebraska. Not. These are all states with that are either swing states or in the case of Nebraska, there’s that one congressional district that has its own electoral vote. And it is a genuine.

Kate Shaw Yeah.

Melissa Murray And it’s a genuine swing district. Yes. It’s so it’s sort of interesting how the map is aligned here. But in Nebraska, the Republican legislature passed a law last year that allowed people convicted of felonies to vote after they complete their sentences. And this is part of an ongoing trend to re enfranchise those who have been convicted of felonies once they have finished their prison sentences. But here in Nebraska, the attorney general has now thrown voting into chaos with an opinion claiming that this new law is unconstitutional and that the previous re enfranchisement law, which allowed people to vote two years after completing their sentences, was also unconstitutional. So basically, everything is chaotic in Nebraska. Nobody knows what the rules are. And again, that has a chilling effect on people exercising the right to vote. And again, because Nebraska is one of two states that don’t allocate electoral votes statewide on a winner takes all basis, it means that Nebraska could really be an issue in an upcoming presidential election.

Kate Shaw And there has been reporting, including interviews with individuals who have completed sentences either recently or even more than two years ago, thought they were eligible to vote. And in light of these new developments, are now scared that if they register or try to vote, they could be actually violating the Attorney General’s understanding of the law. Could them could expose themselves after finishing earlier sentences to newfound criminal liability and thus are not going to turn out at all. And maybe that is the point. So this is just an overview of recent developments.

Melissa Murray That was really bleak. Can we like end on a high note that’s like really even for us that was crap. Like this is the distortion right? This is the architecture of the landscape. But every one of us has the power to overcome these distortions by going getting our friends to vote, making a plan to vote, making sure people know what their registration status is. Now is the time to do this. These are the obstacles that they’ve laid out.

Kate Shaw Here’s here’s one positive spin on this is that they wouldn’t be working so hard if it didn’t matter so much, and if they weren’t scared. Yeah. So I think that that actually is the way to understand.

Melissa Murray They’re scared and they’re scared of all of us working together. So we still have we have the momentum. We do this, we can overcome these structural distortions. And when we fight. When. That’s right. All right. That’s all we have time for. For this very special episode of Strict Scrutiny. We want to thank The Texas Tribune so much for having us. And for those delicious breakfast tacos we’ve had. Thank you all. And we love the chance to dream of a better Texas. Thank you.

Kate Shaw [AD]

Melissa Murray Strict Scrutiny Is a Crooked media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw, with production and editing support by Melody Rowell, audio support from Kyle Seglin and Charlotte Landes, and music by Eddie Cooper. We get production support from Madeline Herringer and Ari Schwartz, and if you haven’t already, be sure to subscribe to Strict Scrutiny on your favorite podcast app so you never miss an episode. And if you want to help other people find the show, cool people, please rate and reviews. It really helps.