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Kate, Melissa, and Leah try to wrap their heads around Trump’s nearly $2 billion DOJ slush fund, which they agree may be—despite extremely stiff competition—the biggest act of trolling and self-dealing of his second term. The professors count the ways this is so, so illegal, and speculate on how it can be challenged (looking at you, Congress). They also cover other legal news and some SCOTUS opinions before speaking with Dorothy Roberts about her book, The Mixed Marriage Project: A Memoir of Love, Race, and Family. Enter Leah’s merch giveaway for the paperback edition of Lawless here!

Favorite things:

• Kate: Nikolas Bowie’s testimony before the House Judiciary Committe
• Leah: It’s Not That Deep, Demi Lovato
• Melissa: Kin, Tayari Jones

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TRANSCRIPT

Melissa Murray [AD]

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when a 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 today. I’m Melissa Murray.

Kate Shaw I’m Kate Shaw.

Leah Litman And I’m Leah Litman. And here’s the plan for today. It’s been quite a week for the deal-dos, as it were. So we are going to start with legal news and then cover Supreme Court opinions. Finally, we will bring you a great conversation Kate and Melissa recently had with one of Kate’s colleagues at Penn Law, Dorothy Roberts, about her terrific recent book, The Mixed Marriage Project. We might intersperse some favorite things before that interview, some after. Little special announcement, so be sure to stay tuned for all of that.

Melissa Murray But first, the legal news. Well, folks, it’s official. We have what everyone’s been waiting for. You guessed it, a slush fund for insurrectionists. Yes, that’s right. The Trump administration will be trying to give your tax dollars to your friendly local neoconfederate traitor, or as they like to call them, the true victims of lawfare and the weaponization of the Department of Justice. Are we being taxed, ladies, for not doing an insurrection? Or are we losing out because we were not insurrection forward?

Kate Shaw It sure feels like that, doesn’t it? Like all of us, we are all being taxed for that. So just to fill in the backstory a little bit, within hours of Trump filing a notice that he was dismissing his absurd $10 billion lawsuit against his own IRS, a lawsuit, remember, where he was asking himself as president to have the IRS that he supervises fork over 10 billion with a B dollars of public money to Donald Trump himself, along with his kids and his business. Within hours of that, the DOJ announced that it was creating an almost $2 billion account to pay those who have allegedly suffered at the hands of the weaponization of DOJ. Almost $2 billion but at least as conceived, actually $1,776,000.00. Get it? $1776?

Melissa Murray Maybe they do read. Not sure, but possibly.

Kate Shaw Some of us are thinking about constructive ways to commemorate this important event. Like those of you listening and not watching on YouTube, writing a whole ass book, like Melissa Murray, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader, not user, or user, both. Anyway, some of us doing that.

Melissa Murray I should have just made a slush fund, would have been faster.

Kate Shaw No, what this administration is doing, because these are the only things it really knows how to do. Troll and engage in self-dealing and this slush fund is both

Melissa Murray I would like to take a few beats on the ostensible beneficiaries of said slush fund. In fact, I would to stare in Representative LaMonica McIver. I would I like to stare New York Attorney General Tish James. I would Like to stare former FBI Director Jim Comey. I would To stare in every single protester who has been indicted or arrested by the goon squads. And so much more. Are they the victims of lawfare? Apparently not.

Leah Litman So I was actually thinking about filing a claim myself, given that I personally have been a victim of Sam Alito’s lawfare and Neil Gorsuch’s law fare. In fact, if you are listening, everyone raise your hand. If you have been personally victimized by the Supreme Court’s law fair, you’ll notice that everyone around you is raising their hand. Unfortunately, the settlement defines me and likely you out of eligibility. We probably shouldn’t even be calling this thing a settlement. It’s an agreement between Trump and Trump’s former personal lawyer, Todd Blanch, AKA Carte blanche who’s now the acting head of what Trump likes to call Trump’s DOJ. So it’s Trump on both sides of the V, which is part of what makes this a deal-do. But the settlement agreement slash deal dough defines the lawfare victims who are eligible for funds as the victims of lawfare that is defined to mean the, quote, Sustained use of the levers of government power by Democrat elected officials.

Kate Shaw Cannot make this up. Okay, so this was announced as a quote-unquote settlement in the litigation Trump versus IRS, which we were just talking about. But as Leah just suggested, it really shouldn’t be called a settlement at all because it’s just an agreement between the parties and the parties are both Trump. So it’s Trump and the IRS slash DOJ. But again, Trump on both sides of the V because those parties did not ask for court approval likely because they could not get it. Because the lawsuit is just, I think, designed to provide the kind of patina of legality to this massive grift which is a point the three of us made in a piece last week in the San Francisco Chronicle.

Melissa Murray I just want to reiterate, this isn’t a settlement. It’s really like a legal selfie, right? You’re just taking a picture of yourself settling with yourself, right. Money for the slush fund is supposedly coming from what is known as the Judgment Fund. This is an account that’s available to the Department of Justice for settling lawsuits. A group of five people who were selected by Donald Trump’s former personal attorney and now current acting attorney general Todd Blanch will oversee its operations. And one of those five people. Will be selected in consultation with congressional leadership. So that’s something. Maybe one of us might be selected to serve as that congressionally-appointed supervisor of said slush fund. Do you think? I’m not going to hold my breath. I’m sure that phone call will come. I bet it’s Lisa Cook. I bet she’s going to get the nod.

Leah Litman Alas, even if we were selected, or if Lisa Cook was selected, Trump can fire the members of the oversight group at will, which means he effectively controls them. The fund will determine its own procedures for reviewing claims, which is shorthand for saying that all claims will be awarded based solely on vibes. Indeed, the slush bag itself seems to be a whole vibe given that within 24 hours of announcing the deal dough. The deal had already been amended, to try and fuck over the country and the American people even more. So the Trump DOJ announced that it had expanded the just-announced Settlement Slush Fund to include a pledge that the DOJ slash IRS will no longer pursue any claims it might have against Trump, his family members, and his companies. This seems to be trying to bar the IRS from auditing the Trump family and Trump organizations for all eternity. And maybe also trying to bar DOJ from pursuing any claim it might have against Donald Trump, again, for all eternity. And this all certainly seems like it’s on the up and up.

Kate Shaw So although it seems like they may have been trying to do some kind of self-pardon without calling it a self-parton, I’m not sure they really got it done the way they hope to because this, again, is nothing more than an agreement. It’s just a contract, which means I’m no contracts professor, but I’m pretty sure I recall that a contract is subject to various kinds of challenges, like being unconscionable or against public policy. And its manifest impropriety, as in its obvious legal defects, would also mean it’s a contractual agreement on which a party like, say, Trump could not reasonably rely, which would mean that a future DOJ should be able to hold them accountable for legal violations, notwithstanding this promise to the contrary. It could also mean that the amendment to the agreement, the one that actually included all of this effort at self-pardoning for any sort of tax law violations, might not be binding, because to modify a contract, there is supposed to be what’s called consideration. So both sides are supposed to give each other something. Here, DOJ seems to have just gifted Trump a promise that he’d be above the law, which actually might not be a meaningful, enforceable agreement.

Melissa Murray Just trying to describe this apostasy makes clear how shockingly corrupt and lawless it actually is. Is this even the worst and most corrupt scam of the administration? I mean, genuine question. There’s so many to choose from. But I think this may actually be it.

Leah Litman I think so. Like it’s tough competition with all the grift from the prediction markets to the cash. That’s cash with a dollar sign bourbon to crispy gnomes, government contracts, sorry, to crispy Gnomes government contracts going to companies with ties to the administration to crypto pay to play schemes to money for pardons. There’s also the recent news and disclosures about how Trump has promoted stocks he was personally trading in and how he’s traded in hundreds of millions of stocks in 2026 alone. I’d call it insider trading, but it seems not to be that insider-y. It’s just straight up public-facing market manipulation. Also this week, the New York Times reported that Reynolds, the tobacco company, donated five million to a Trump-backed super pack, and then, by some miracle, the following week, the FDA turned around and issued new guidance that could make it easier for big tobacco companies, like Reynolds, to begin selling flavored.

Melissa Murray Did you all hear the commercials that aired over the weekend thanking President Trump for relaxing the rules around flavored vapes? Chef’s kiss, amazing. A common sense approach to tobacco cessation.

Kate Shaw Wow, thanks, President Trump.

Melissa Murray [AD]

Kate Shaw Okay, so that context, I think, makes clear just how egregious this latest deal dough is, if it takes the cake even with that competition. So let us just try to elaborate a bit further just how shocking this is. First, there is the fact that they are using taxpayer money for these payouts. At least the insider-slash-public-facing, like, blatant trading was with, Ithink, their own money. This is our money. So question, is this? What you would call reparations. The black delegation says no.

Melissa Murray OK. I, too, say no. This is what they called interest convergence. All right. So I would argue that what this really is is theft of taxpayer money for personal gain. If you can, while you’re listening, look up a picture of the individuals who were storming the Capitol on January 6, 2021, the people carrying zip ties. And wearing like shaman horns. Is that where you want your tax dollars to go? Your hard earned tax dollars? Because that is.

Leah Litman Exactly where it might be headed. It’s also a potential pay-for-pedo scheme if you just think of the number of January Sixers who are back in jail for child pornography or other sex offenses. Indeed, this came up at Todd Blanch’s recent appearance in the Senate, as you can hear here.

Clip Let me go back to this slush fund because there’s also an individual who, after being pardoned by the president, went on to molest two children. And that person actually tried to buy the silence of these children by saying that he would pay them some of the funds that he was hoping to get from your slush funds. Can you commit to making the rule so that that person… Is not eligible for a payout under this fund.

Clip Well, you’re obviously lying in your question, because there’s no way that this person committed to that. But the slush fund, as you call it, which is not, didn’t exist. But I can commit. Mr. Attorney General.

Clip Don’t ever do that again. I am reporting what he said.

Leah Litman As you may also have heard, the acting attorney general’s response was not a no.

Kate Shaw That was really wild. I’m going to sort of fly-spec this, like, part of the premise of your question, but not actually respond to the substance. Because you’re obviously lying was because Van Hollen referenced this slush fund as opposed to a general promise to, like you know, get money from the federal government. But he very much sidestepped the substance of the question, and that seemed really revealing to me.

Melissa Murray Imagine storming the Capitol, calling for the vice president to be hanged and for the Speaker of the House to be murdered. And here’s the best part, getting paid for it. That, that is the dream. With taxpayer money, the American people’s money, that is The American Dream. It’s not enough to just legalize insurrection retroactively through the Supreme Court and an immunity decision and mass pardons. Like now, we’re actually making insurrection profitable. You love to see it. Anyway, more seriously, though, some people might actually argue that this is exactly how you create the infrastructure for another insurrection, right? You buy yourself an army and you secure government resources to fund them going forward. I mean, that seems to be where this is headed. You did violence for me. I will pay you. Yeah, right. Right, so.

Kate Shaw So, and to be clear, like, who is the party responsible for this? The political party that was apoplectic about student debt forgiveness and is now obviously all in on insurrection forgiveness, you know, having basically an insurrection forgiveness fund. But as Melissa was just suggesting, it’s not just about paying out participants in this past conduct. It is pretty clearly about providing a permission structure and even encouragement of future lawlessness. And, obviously, just to further highlight the hypocrisy, there is no money that I have seen suggested, you know, or flowing for, say, families forcibly separated by Donald Trump during Trump 1.0. But there is, of course, plenty of money to the tune, again, of almost $2 billion for insurrectionists. Also, they’ve been, like, having this meltdown about a California-free diaper program, just like in the last week. That’s the shittiest thing that’s happened this week. Right. Very good. Just price tag $19 million, like change compared to this fund.

Leah Litman Some listeners might also recall the lawsuit that DOJ is filing, I mean, criminal indictment against the Southern Poverty Law Center when they indicted the organization because they said that organization was somehow funding hate groups while it was actually investigating them. If that was a criminal conspiracy, and it wasn’t, this— Slush fund is a criminal conspiracy many, many times over. And this deal dough can also be a criminal conspiracy even if the SPLC indictment doesn’t describe one.

Kate Shaw Correct. So stunning potential for corruption and also a lot of questions that we still don’t have answers to. So will some of this money go personally to Trump? To his friends? To his family? His lawyers? Giuliani? Powell? Eastman? Like will this be how his lawyers finally get paid? That we’re even asking these questions out loud is an indictment of the most serious kind of this entire enterprise and this abomination of a fund.

Melissa Murray Well, here’s a superseding indictment. Will some of the money go to January Sixers who were storming the Capitol? When he was asked these questions directly, here’s what the president of the United States had to say.

Clip Do you believe that people who committed violence against Capitol Hill police officers on January 6 should be eligible for compensation from this DOJ fund? And are you or your family members going to be seeking compensation from that fund?

Clip It’ll all be dependent on a committee. A committee is being set up of very talented people, very highly respected people. I think it’s a committee of five. And again, I didn’t do this deal.

Melissa Murray Once again, listeners. That was not a no.

Leah Litman No. Also, “it’s up to the committee that I control” not reassuring. Did want to draw attention to one clause, clause D of the deal-do, which is maybe fitting, big D of deal-do. This one says that, quote, once the funds are deposited, the United States has no liability whatsoever for the protection or safeguarding of those funds regardless of bank failure, fraudulent transfers, or misuse of the funds, end quote. Is the United States indemnifying itself against crimes committed with the money that it is paying out from this insurrectionist slush fund? Like, why do you think crimes might be committed with this insurection slush funds?

Melissa Murray Big D energy. Anyway, somehow with absolutely zero appreciation of the irony, on the very day this slush fund was announced, our vice president, JD Vance, gave a speech. And we wanted to play just a bit of that.

Clip Tidying fraud in Washington DC, it’s a little bit like fishing in a barrel with a nuclear weapon. It is the easiest thing to find. Every single day, my staff will bring me new reports of the ways that you’re being defrauded. And there are all these, look, there’s a simple principle that I have, which is if you are committing fraud against the American people, you ought to go to prison. If you are a public official and you’re not fighting against fraud, you ought to have your money taken away because you should not be able to steal from all of you and give it to fraudsters.

Melissa Murray Guess what, JD, sometimes it bees your own people.

Kate Shaw So, can we also remind listeners, viewers, that one of the presidency-ending scandals of Richard Nixon was that Nixon had a slush fund that he used for political hits and rewards? Like, how big was that slush funds? Honestly, it was like less than $20,000. It could literally fit in brown paper bags. That was that slash fund. Maybe a kava bag. Yeah. I mean, like a little mini one. Um, so the Nixon corruption. Seems impossibly quaint today. Like all presidential corruption scandals of the past, the Harding administration, the Grant administration, all of the other corruptions just pale in comparison. Really all of them together, I think, pale in comparison to what we are seeing with just this fund. It is also a massive threat to the separation of powers because it is essentially a template for allowing the executive branch to fund essentially any program that it wants to. By engineering some collusive litigation that it could quote settle by establishing a fund for its desired program. So this deal though is a purported against settlement resulting from a case brought by Trump against Trump’s DOJ that settles the case against Trumps DOJ. By purporting to allow the DOJ to pay money to whoever Trump wants you could rinse and repeat in any number of ways to fund God who can imagine the sorts of odious activities they might want to pursue this way.

Leah Litman This is another seizure of a power that the Constitution assigns to Congress, the power of the purse. But fear not, as Kate was suggesting up top, the cash value of the fund was set at $1.776 billion, a nod to the nation’s founding, just like the founders intended. Am I doing originalism right, Neil and Clarence? This is a 1776 fund for traders. Make Benedict Arnold great again!

Melissa Murray I mean, OK, this is all part of a pattern that the three of us have actually written about. We have to get this draft up on SSRN, ladies. But we’ve written a paper where we argue that the president has filed lawsuits and then reached settlements that ratify his dubious and, in some cases, delusional, borderline, sanctionable views about what the law is and does so. In ways that vastly expand the scope of executive power, maybe even encroaching on the judiciary’s power to say what the law is. It is absolutely bonkers, and someone ought to call it out for what it is.

Kate Shaw And the paper makes clear this is just essentially the culmination of this trend. We have seen versions of this in students against media companies and executive orders targeting law firms and universities and it is all part of the same strategy but this is without question the most egregious example to date. There are also very serious arguments that on top of the other legal issues we have already canvassed, this proposed settlement is illegal in still other ways. So there’s the 14th amendment. Leah alluded to this in passing during our last episode. But Section 4 of the 14th Amendment, we all had to get up to speed on Section 3 not so long ago, there’s another one, Section 4, it says, quote, neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United states or any claim for the loss or emancipation of any slave. But all such debts, obligations, and claims shall be held illegal and void. Sherrilyn Ifill had a post about this, Representative Jamie Raskin has gestured to this. Very serious argument that this fund, which will pay insurrectionists, violates section four.

Leah Litman There is also some federal regulation, so 31 CFR 256.1. That is the federal regulation on the Department of Treasury’s role in paying awards and settlements from the Judgment Fund. It authorizes awards or settlements that are, quote, monetary. Is this settlement monetary? There is an Office of Legal Counsel opinion that says the fund isn’t available for anything other than direct payments. And so it’s not clear where DOJ thinks it’s getting authority to do other things, like make an apology to Donald Trump or something like that.

Kate Shaw Then there is 31 U.S.C. Section 1304, which is the federal statute on the Judgment Fund. And it sets up an account, this pot of money that Congress has appropriated, to allow DOJ to pay the settlements that it reaches. It allows settlements when the attorney general is defending in litigation or a lawsuit. But the settlement claim is only supposed to be paid, quote, in a manner similar to judgments in, like, causes. How could that possibly be satisfied here? There is no judgment in any cause that is similar nor would there be because In this case, and any similar case, there’s no justiciable controversy, and there’s certainly not going to be any sort of judgment growing out of it. There’s also language from previous SCOTUS opinions that suggest this fund is illegal, like OPM v. Richmond, which said, quote, the general appropriation for payment of judgments in any event does not create an all-purpose fund for judicial disbursement. And that opinion also notes the possibility of collusive lawsuits in particular.

Leah Litman So the acting attorney general, a.k.a. Trump’s former personal attorney, put out a memo that purported to explain why this slush bags lease fund shakedown was legal. In hindsight, maybe there should only be two S’s used to describe this abomination. Think about that one for a second. Anyways, it’s not legal. And you can drive a truck through the legal analysis. So just to take one example, the memo cites a fund originating from the Keeps Eagle case as precedent for this fund. But in Keeps eagle, there was a court-approved settlement. Not one here. Also in that case, there was a certified class, i.e. A court certified a class of people who were potentially injured. No such thing here. There was an administrative claims process in that case that happened in front of a neutral body and held claimants to evidentiary standards. No such things here. No guaranteed transparency, rules, accountability. Just Todd Blanch and some people the president can fire at will. Could go on, but you get the point.

Melissa Murray So listeners, we’ve received your questions about who can challenge this abomination. Unfortunately, the district court that was hearing Trump’s nominal lawsuit against the IRS, that was the one where there were real questions about justiciability because the president was literally on both sides of it, that was a precipitating basis for the settlement slush fund. But because that case was dismissed without appointing anyone or holding a hearing to look into the legality of the quote unquote settlement. We’re not really going to be able to have anything going forward. And all of that is kind of a bummer, a real missed opportunity.

Kate Shaw So there are some potential obstacles, so taxpayers as a general matter can’t sue just because they don’t like the way their taxes are being spent or even because they think those taxes are been spent in illegal ways, at least in the federal system. Possible that people who would be or could be compensated out of the general judgment fund from which this money might be drawn could have standing to claim they are injured. We actually already had two officers who were injured in the attack on the Capitol Sue to challenge this fund It’s not entirely clear that they’ve established that they would be injured by it. So again, that could pose an obstacle to their litigation, but there will be other lawsuits, mark my words.

Melissa Murray But again, challenging collusive litigation is tough. There is no getting around it. What might be the solution here? Well, let me look in Article 1. Oh, a Congress. A Congress might be good here. You found it? I did. It’s right here in Article One of the Constitution. You read it for the articles. Congress, I am told, is authorized to pass laws. They also have the power of the purse, which means they could withhold funds. They also have oversight power, which means they might hold hearings about the use of this fund and how funds are being dispersed. And wait for it. Congress could sue if it wanted to, although the courts.

Leah Litman Could also impeach. Speaking of the courts, you know who probably loves this entire thing? John Roberts and his band of boys. It is pushing their voting rights decisions out of the news cycle, even though they bear a lot of the blame here. Like, who told this guy Donald Trump he could commit crimes with impunity and be above the law? He learned it from watching You Dad, who flat out told him he had plenary authority over the Department of Justice, and it didn’t matter why he was ordering DOJ to do things. After we recorded our regular episode, some news came out about real weaponization of DOJ and lawfare. Some of you might be familiar with the case of the so-called Broadview Six, the indictment of six people, including the then congressional candidate, Kat Abugizalea, protesting outside of the Broadview Immigration Detention Center in Illinois during the Operation Midway Blitz. Prosecutors indicted multiple individuals for allegedly conspiring to impede a federal agent. Some signs and megaphones and allegedly pushing or scratching a car while the protesters were on foot and the agent in a car. These charges were always outlandish but they were felonies and they faced up to seven years in prison. Well last Thursday evening the prosecutor dismissed the charges with prejudice which means the defendants cannot be charged again. This dismissal came as the defense attorneys pushed to have the full transcripts of the grand jury proceedings released. So the grand jury is the jury before the jury. It’s the group of people prosecutors have to convince to issue an indictment in order to charge someone with a felony. And well, well, at a hearing, the judge described she was shocked by what she saw in the redactions of the transcripts and that she had never seen these types of prosecutorial behavior. So what did she see? A lot. Something called vouching, which prosecutors absolutely cannot do in front of a grand jury where there’s no defense attorney there. Prosecutors are supposed to present evidence to the grand jury and the grand jury neutrally and impartially decides whether the evidence, the facts suggest defendants may have actually committed a crime. Vouching is where the prosecutor basically says Don’t worry, trust me, I’m a prosecutor, there were definitely crimes here, I may not have evidence, but there’s some secret additional evidence and you can trust me. That completely eviscerates the role of the grand jury and its function. This is the kind of stuff a judge suggested, former whatever U.S. Attorney Lindsay Halligan did, that’s the former insurance lawyer who obtained indictments against Jim Comey and Tish James only for the indictments to be promptly dismissed. In the Broadview case, the judge also said the prosecutor communicated about the substance of the case with grand jurors outside of the grand jury room, trying to communicate with them off the record, in secret. I don’t know why these people are obsessed with off the records. Recall Lindsay Halligan texting the law fair editor and trying to tell her this is all off the recorded. But again, on the Broad View case, worse still, the prosecutor excused grand juror, dismiss them, sent them out of the room. When grand jurors didn’t want to return an indictment. And then they continued to ask the remaining grand jurers to indict the defendant. Basically, that’s a way for the government to whittle down the grand jury to include only those people who are willing to go along with what the government does, again, completely undermining the function of the grand jury, which is supposed to be independent, impartial. That is also the stuff, all of this, that the government tried to redact. Conceal from the judge and the defendants, stuff that would absolutely require the felony case to be dismissed immediately. Instead, the government concealed this and then tried to keep these transcripts from ever seeing the light of day by dismissing the felony charges and keeping a misdemeanor charge. And misdemyanor charges don’t require a grand jury. So then the government said, oh, you don’t actually need to see these, no big deal. And that forced the defendents to continue defending themselves for almost a whole entire year. Even as prosecutors knew all this had happened. The judge in the case is obviously not happy with them, even though the case was dismissed. She’s reserving the possibility of sanctioning the government lawyers, finding there were ethical violations as she should, because that’s the kind of stuff that gets people disbarred. It should be career ending. And the judge also told prosecutors that this evidence really made a case for the defendant claiming all of this was what are called vindictive prosecutions. Also known as the weaponization of DOJ and lawfare, prosecuting, persecuting people because of who they are, not what they did. And that also would have required the dismissal of the misdemeanor charges. Basically, the prosecutors are junking all the legal protections and rules that exist in the world just to go after certain people because of what they say and believe. Given how frequently this seems to be happening, this should raise questions about so many cases, all cases. Even lower profile ones are out of the public eye. And with that, we are now back to our regularly recorded episode.

Melissa Murray [AD]

Leah Litman Well, federal DOJ lawyers are doing fuck knows what. Other prosecutors are still into enforcing the law, and that includes the prosecutors in Minnesota.

Kate Shaw And indeed, the same day that DOJ announced its slush fund for insurrectionists, state prosecutors in Minnesota announced that an ICE officer is being charged in conjunction with a non-fatal shooting, and the Minnesota officials are charging him with second-degree assault and one count of falsely reporting a crime. Here the Trump administration basically admitted that the officers involved lied under oath about the shooting, a federal judge dismissed charges based on the officer’s account, and federal officials opened an investigation into whether the officers had lied about what happened. These are the first reported charges arising out of an enforcement action or enforcement proceeding, and the last indictment concerned an officer who went berserk while driving on duty. So this is huge.

Melissa Murray I love that the gopher state is making federalism great again. Go ahead, Minnesota. Texas, on the other hand, does not seem to understand this whole federalism thing at all. So in the last episode, Kate and Leah talked about DOJ’s egregious forum shopping. So DOJ went to Texas and filed a case in a Texas district court to enforce a subpoena that required a Rhode Island hospital to provide information about its provision of medical care to trans people. The hospital challenged the subpoena in a Rhode Island court, which issued an opinion barring the DOJ from enforcing the subpena. And the court also issued some choice words for DOJ. Well, guess what? You know who took that personally? A district judge in Texas, one Reed O’Connor, he decided to go nuclear. He issued what’s called an anti-suit injunction that purported to bar the plaintiffs in the case from filing anything further in Rhode Island Court or in the First Circuit, which is the Court of Appeals that oversees Rhode Island, or in any court other than his court or, alternatively, the Fifth Circuit. It’s not forum shopping, folks, when the court does the forum selecting for you, I guess. Maybe this is what the kids call personal forum shopping. And Judge O’Connor is now America’s personal forum shopper. You can get one of these at Nordstrom. Or maybe folks, it’s just egregious judicial overreach and it puts the plaintiffs here in an even more difficult situation. It’s really a toss-up.

Leah Litman Because everything is bigger in Texas, the president went ahead and endorsed Ken Paxton in the Republican Senate primary over the current senator from Texas, Sean Cornyn. This is after Cornyn prostrated himself in front of Trump by abandoning his long defense of the filibuster to urge the Senate to go nuclear and pass the.

Melissa Murray Anti-voter save act. So wait, wait, I’m trying to understand this. We don’t feel bad for John Cornyn, do we? Oh no, not at all. And like, I mean, impeached people are gonna like other impeached, people, right? So I mean it makes perfect sense.

Kate Shaw Have you guys heard some of the kind of calls for…

Leah Litman You can

Kate Shaw For sort of Cornyn and Cassidy kind of caucus with the Democrats for the duration of their time in the Senate, dot gov.

Leah Litman John Cornyn is not going to do that.

Kate Shaw He was actually like way back before he was even on the Texas Supreme Court when he was like the Texas AG. He like occasionally had a spine and would like do things that would defy like Republican Party orthodoxy. I wonder if in this like twilight of a Senate service he finds that again. I am just not going to rule it out. But again, I have made this mistake before. There she goes, listeners. There she is. Yeah. You knew she was in there. I’m really into debating, ladies. So one more piece of news before we turn to opinions. A district court has issued an injunction in a case. That’s really wonky but very sort of near and dear to my heart because it’s about the Presidential Records Act. So the administration is taking the insane position that the Presidential Records Act is optional because Article 2, like literally this very modest requirement that you White House officials hang on to the records of your time in the people’s house, doing the people business to inform history. Like that’s what the Presidential Records Act does. It’s another post-Watergate innovation to kind of promote a little bit of transparency. And accountability in the presidency. But of course, because it’s supposed to do all those things, this administration says that’s intolerable, it’s unconstitutional, we don’t have to abide by it. So a district court again issued an injunction barring this White House policy that basically I think says like, don’t to comply with the Presidential Records Act. The problem I think is that the injunction doesn’t cover the president, the vice president, the attorney general, you know, it does bind every staff member, I think, in the White House. So. If the three of them, AG and the president and vice president, think their insane theory authorizes a shredding party, I’m not sure this injunction bars that. So that could be happening as we speak.

Leah Litman Can these guys figure out how to use a shredder? The idea that that might be our hope is totally sad. Don’t put that in the shredder. Right. So now for some quick recaps of the opinions. The court issued the Supreme Court. So in happy news, the Supreme court dismissed as improvidently granted the writ in Hamm versus Smith. That means the Supreme courtroom isn’t going to decide the case and the court of appeals decision that had affirmed a trial court’s decision that the defendant in the case. Is likely intellectually disabled and therefore cannot be constitutionally executed, that decision will stand. Justice Thomas filed a dissent suggesting that the court’s decision in Atkins, that’s the decision holding that people with intellectual disabilities cannot be executed. He said that decision had created an incentive for people, quote, to convince courts that they are not intelligent enough to be executed, which I think is just another way of saying it. Allowed them slash created incentive for them to raise the constitutional claim the court had just recognized in Atkins the horror. So he calls on the court to overrule Atkins as usual. He includes a graphic description of the defendant’s crime and suggests that Atkins is actually bad for defendants because it requires them to suggest they aren’t very smart in order to avoid execution. It’s just an appalling opinion.

Melissa Murray It’s much better when you suggest that affirmative action means that people getting into college are very smart. Same logic.

Leah Litman So Justice Alito filed what seems to be the principal main dissent, and it was intriguingly joined by Justice Thomas, Justice Gorsuch, and the Chief Justice. So this means that the five justice majority who dismissed, as improvidently granted, the writ in this case, leaving in place a decision barring Alabama from executing Mr. Smith, included the three Democratic appointees, together with Justice Barrett and Justice Kavanaugh. The Alito dissent lays out a roadmap for lower courts to deny Atkins claims, presenting it as a clarification of case law.

Melissa Murray I think it’s weird that this is yet another dig. There have been so many digs over the last couple of terms, certainly since they got this 6 to 3 conservative super majority, which may suggest that having five people, six people that you know will say yes to something means maybe you’re not as choosy as you should be about selecting cases. Just going to put that out there. This is not the first dig we’ve seen. There have others in the last few years. Anyway.

Kate Shaw And it is conspicuous they’re taking so few cases in the night. I mean, look, sometimes it’s great. I’m really happy not to have them get their hands on some of these substantive questions. So it’s a relief that they take the off-ramp. But it is curious that they’re taken these cases at all if they’re not going to resolve them.

Melissa Murray Well, it just seems like maybe they’re so zealous to take certain things. And then when they recognize maybe this is just not a good vehicle for this, they have to pull back in any event. All right. The court also decided Havana Docks Corporation versus Royal Caribbean Cruises, which addresses who’s able to sue and which defendants they are able to Sue when their property is confiscated by the Cuban government. So this property confiscation took place after Castro took over the government. Dan. This is all kind of curious timing for the announcement of this decision because, as you know, the government has indicted Raul Castro, Fidel Castro’s brother and his successor to the government in Cuba. Here, the plaintiff had a lease on certain docks. The Cuban government seized the docks before the lease was set to expire. The lease was going to expire in 2004. Some commercial cruise lines used the dock to transport passengers, but after the lease expired. The Supreme Court held that the plaintiff, here the docking company that helped develop and run the docks, could sue the cruise lines that had used the property that the Cuban government had confiscated. SCOTUS said that the dox themselves were the relevant property, as opposed to the plaintiffs docking companies leasehold or the property interest in the doxx. This expands the scope of liability, that is who can sue and for what. Justice Thomas wrote for the eight justice majority, Justice Kagan dissented. Justice Sotomayor wrote separately with Justice Kavanaugh, and they were just fighting a couple of weeks ago, to note a few issues that the court had not yet resolved, such as the amount of any damages and whether the plaintiff could sue anyone who used the docks and recovered damages from all of them.

Kate Shaw Finally for last week, the court issued M&K Employee Solutions vs. Trustees of IAM National Pension. This is a case about how to calculate what an employer has to pay when they decide to no longer participate in certain pension plans. Employers have to pay a portion of the unfunded vested benefits that existed on a measurement date, the last day of the plan year before the employer withdrew. The question here was how to Calculate that amount, which depends a little bit on actuarial predictions including the plan’s future assets and liabilities. So SCOTUS said that the actuarial predictions didn’t have to be applied based on information and assumptions that existed on the measurement date rather than updating them based on subsequent information. KBJ wrote the unanimous opinion for the court. Okay, before we bring you our conversation with the great Dorothy Roberts, let’s quickly take through some favorite things.

Leah Litman So I had missed the fact that Demi Lovato released an album. And I really like frequency off of it and a little bit. I’m not sure about the rest of it, but those were good songs. So paperback edition of my book is coming out June 16. And so I am running another giveaway, where if you pre-order the paperback, you can enter to win. Some merchandise that I made, including the Lawless t-shirt that I am wearing and other similar products. But I also made new ones for the new chapter on the Unitary Executive. There’s not a new chapter, a new section. There’s the Ice Out t-shirt and the I prefer my ice crushed one together with other items. So check that out and you can pre-order from my favorite local Indie. Literati bookstore and you can get a personalized signed copy if you do that before June 9th. So get on that.

Kate Shaw Those are both great t-shirts. My extremely stylish 14-year-old stole that I like my ice crushed. It’s kind of a crop top. It’s very, very cute. I’m in the ice out one.

Melissa Murray I was waiting for the new unitary executive t-shirt that said, the UTE, it chafes.

Leah Litman I don’t know how that would work as a T-shirt. Um, but.

Melissa Murray I think you know how it would work. I think you do.

Kate Shaw I think you’d be right. Exactly. All right. All right. Maybe for the second time. Okay. Well, that is exciting. So listeners get on that. I have just a couple of things. Brooklyn Half Marathon last weekend was hot, but awesome. I met a couple stricties there. I got no names because I was really in the zone, but it was to say hi. And I hope you had a great race. And then the only other thing I’ll mention is we’re recording this on Thursday afternoon before the Memorial Day weekend. So Nico Bowie testified this morning, was like testifying just as we sat down to record on Thursday, that is before the House Judiciary Committee, on a hearing about, you know, to sort of like wax alarmist by the Republican majority about, rhetoric of court packing and what a dangerous threat to constitutional democracy court packing is. Right. And so the testimony was great. And I also just think the fact that this the House Judiciary Committee is nervous enough about calls for court expansion that they are trying to call hearings to beat it back is a hopeful sign. So it’s really important to keep talking about Supreme Court reform, court packing and other kinds of interventions. But the court is wildly out of control. And, you know, the idea of doing anything about it seems sort of impossible until we sort of work hard enough to make it feel more possible. So props to the folks kind of working to keep it on everyone’s agenda. That’s it.

Melissa Murray I am very excited. And among my favorite things this week is the fact that my book, The Constitution: A Comprehensive and Annotated Guide for the Modern Reader, is still on the New York Times Best Sellers list. It came in at number eight this week, even though it’s back ordered everywhere. Like my local bookstore, I told you. Totally sold out. So I’m just going to say it. Some people did not think Jimmy Madison and I could do this. People are like, who’s going to buy a Constitution for $20, $30? and I was like, I don’t know, but I think people are gonna buy it. I think they are. And so here we are. Who was right, Melissa? I love when that happens. It happens all the time. Yes, so I’m really excited about that. And it is in no small part due to the fact that Leah Litman continues to run the world’s best giveaways. She did another giveaway for the Constitution. And all of you wrote in and you’re getting great merch. Thank you, Leah, because I literally don’t know how to do what you are doing with that little website. I don’t even know. Is it a website?

Leah Litman I can’t do what YOU are doing? I can just make these t shirts.

Melissa Murray I mean, you did it. And Jimmy Madison and I are so grateful. I call I went to his grave at Montpelier to tell him about the list. Kidding. That’s that’s an Allusion to Emma Thompson at the Oscars back in the day. All right. I am also reading Kin by Tayari Jones, which is absolutely amazing. If you haven’t read it, she’s fantastic. I enjoyed her first book, her debut, An American Marriage, but this one is just absolutely spectacular. I really, really loved it. I also ran into some amazing stricties in the wild. So shout out to Joycelyn, Carolyn, and the two lovely young lawyers that I met at LDF’s Equal Justice Dinner. So great to meet you. I know you told me your names, but. I am old and getting older, and I just forgot. I’m sorry. But it was really, you had great shoes, too. I really appreciated your shoes. Wow. Finally, it is graduation season, and I wanted to give a shout out to Dr. Halper’s class at the Trinity School, as well as the Trinity Schools Class of 2026. I was their commencement speaker last week, and it was truly an honor, and I’m so excited for all of these wonderful young people to get out there and start doing that democracy thing. That sounds amazing. All right, folks, that’s our favorite things. Stay tuned for our next segment, which is also kind of a favorite thing. It is an amazing conversation that Kate and I had with Dorothy Roberts, Kate’s Brilliant brilliant colleague and one of my favorite favorite people about her recent book the mixed marriage project.

Melissa Murray [AD].

Melissa Murray Our next guest is someone who has managed, in her most recent project, to do something that very few academics do. She has written a book that is deeply substantive, rigorously researched, but also deeply, deeply personal. We are not surprised that this author could pull off this trifecta because she is truly one of the greatest legal scholars of her generation, someone whose work I have admired and cited for years and years.

Kate Shaw So listeners, we are thrilled to welcome to the podcast Dorothy Roberts, who is the George A. Weiss University Professor of Law and Sociology at the University of Pennsylvania, with joint appointments in the departments of Africana Studies and Sociological and the Law School, where she is the inaugural Raymond Pace and Sadie Tanner Mossel Alexander Professor of Civil Rights. And yes, that means I’m lucky enough to call her a colleague. She’s also the founding director of the Penn Program on Race, Science and Society, and a recipient of a MacArthur Genius Grant to boot.

Melissa Murray And Dorothy has written some of the most important legal scholarship on reproductive rights, the family, and constitutional law. When I read her book, Killing the Black Body, Race, Reproduction, and the Meaning of Liberty in College, it completely changed the way I thought about reproductive rights and continues to inform how I think about reproductive rights and justice today. And two of her other books, Shattered Bonds, The Color of Child Welfare, and Torn Apart, How the Child Welsfare System Destroys Black Families. And how abolition can build a safer world are the absolute foundation for the family regulation abolition movement. But although she’s written about black women and the black family, her most recent book, The Mixed Marriage Project, a memoir of love, race, and family, is perhaps her most personal to date. And we are so delighted to have Dorothy Roberts here on Strickscrutiny to discuss it. So, Dorothy, after that very long, gushing windup, welcome to the pod.

Dorothy Roberts Thanks, Melissa. And I could say gushing things about you and Kate as well. And I’m so happy, Kate, to have you as a colleague and Melissa for us to be virtual colleagues and sometimes in person for decades now, right? So it’s wonderful to be on your show. Thanks so much.

Melissa Murray Well, we’re excited to dive right into this book, which I have to say is a real page-turner. And I imagine it was kind of a page-Turner for you. So you start the book by talking about your childhood. You grew up in a very segregated Chicago in the 1960s. It was a time when relationships barely cross the color line. But the book talks about how different your home was. Your father was a white anthropologist, and your mother was a black Jamaican immigrant. Who was not only his life partner, but in time became his professional partner, helping him in his work and his life’s work or a series of interviews with mixed race couples, trying to sort of probe what it was like to live in an interracial couple as he himself was living as part of an inter-racial couple. And the scope of this research is absolutely stunning. He conducted nearly 500 interviews with black and white couples in Chicago from 1937 through the 1980s. And almost a decade after his death, you spent an entire summer sifting through these interview transcripts and all of the related materials in that archive. So what did you discover? And how did a project that began as a deeply personal endeavor into your father’s legacy result in a book that’s really a memoir about you and your family?

Dorothy Roberts Well, I discovered a lot of surprising things when I finally got around to reading all of my father and mother’s interviews, some personal and some historical. So the personal part, which was the most stunning, was finding out that he began interviewing black, white couples in Chicago in the 1930s. I always thought until the moment I pulled out the first interview from these boxes, my sister had sent me that my father got interested in interracial marriage when he met my mother who was a student of his at Roosevelt College in Chicago, and he met her in the 1950s. And then he was working on this book my entire childhood. So I imagine. That he began writing the book in the 1960s after he and my mother fell in love and were married. And so when I pulled out the first transcript from the boxes and the date on it was February 19, 1937, it just completely floored me because that not only meant that he had started these interviews when he was only 21 years old as a master’s student at University Chicago, you know, a white kid basically who. As far as I knew, didn’t even know black people growing up. But it also meant that he was interested in black women and interracial marriage. Relatable. Long before, yeah, long before he met my mother. And so that flipped the whole story of the relationship between his marriage and my family and his research. So. And then discovering that my mother was involved in the nineteen fifties I had no idea this was always daddy’s book that he was working on I didn’t know my mother had conducted half the interviews in the ninety fifty she interviewed all the women well he interviewed all the man and so there were these personal. Discoveries really upheavals. But then there was also the stories in these interviews, the stories of couples in the 1930s and the 1950s or the 1960s. Really his research spanned 100 years of marriages because some of the couples, in fact, 25 of the couples he interviewed in the 1920s, were married before the turn of the 20th century in the late 1800s. So he had interviews from the ninth. 1880S to the 1980s. And just that was stunning. Now you ask, how did I get from digging into a personal story into writing a memoir, it was really that I first thought I have to do something with these interviews. You know, I am an author, I’d like to write about black history and family history and the law. So I had to write something about these hundreds of interviews. But what happened is I read them and I started to reflect on my family’s history and reflect on my parents’ relationship and on my own identity. It turned into a book about me and my family as well as the stories and how I could interweave these stories of the people my parents interviewed with my own.

Kate Shaw Yeah. Well, and it’s incredibly powerfully done, the sort of, we learn a lot about the subjects of the interviews, but we also learn a great deal about your family, your dad, your mom. And I actually want to ask about, so you referenced daddy’s book, which loomed very large of your household and your childhood. And like his quest to turn this set of interviews, hundreds of interviews spanning, as you said, a century of relationships, into a book. And you knew that he was never able to complete that project and publish the book. In fact it’s if I recall correctly, you initially were thinking maybe I’m going to complete this book that he never did, and then it, of course, turned into the memoir you were just describing. But you learned a lot about the way he never finished the book. This contract signed, you know, advance returned, a later contractual effort. There’s just much more there than I think you had realized. And I have to say, this is pretty wrenching. It just felt especially poignant as a reader in light of the fact that you, his daughter, … Incredibly successful academic, you know, an author of multiple field-defining books are the one making these discoveries and telling this story. So can you talk a little bit about the publication struggles you found in these boxes? And then share if you can why you do think at the end of this process he was never able to complete the book.

Dorothy Roberts Yes, that’s right. I in a way wanted to finish the book he never completed, but expanded into my own personal reflections. And I discovered along with the interviews in these boxes that of his archive his papers that my sister sent me a whole folder stuffed with publication details of his efforts to publish the book. And so one of them, I remember very clearly, because in 1969, he got a contract from Simon and Schuster, this major New York City publishing house. And he got an advance of $2,000, which was pretty incredible at that time, especially for a professor of anthropology to get this kind of a contract. And it was. The source of extreme jubilation in our house. It was the most exciting news we’d ever had growing up. And we jumped into our Sky Blue Rambler and drove to downtown Chicago from Hyde Park Kenwood. And we had a big celebratory dinner at Contiki Ports at the Sheridan Hotel. This was really a major event. And then I discovered he had other contracts as well. Interest. From other trade presses as well as academic presses, just loads of correspondence about this. And then, despite all this, he never submitted the manuscript. It went through so many different iterations. At the end, he interviewed hundreds of children of interracial marriages, and then he was gonna write a book about that, and none of it ever happened. And so part of the mystery You know that I explore in my memoir is why and I think the main reason is that he just loved interviewing these couples and you know he not only interviewed them he brought them into our lives. His best friends, including St. Clair Drake who’s a major figure in anthropology and African studies was married to a white woman and she they were both. Constant figures at our home, along with other friends of my parents, my piano teacher, the plumber, just about every character who came through our house was involved in a mixed marriage or mixed race relationship. And he really built a community. In fact, in the book, I wonder if he materially, significantly increased the numbers of interracial marriages in Chicago, because he He introduced people to each other. Well, I was really building a network of interracial couples in the city, and I think he enjoyed doing that and that didn’t want to end doing that. It wasn’t that he lost interest because he continued throughout his career into the 1980s conducting these interviews, but he just couldn’t get it down on paper And you know Who knows why some people have writers block and others don’t, but he had difficulty getting past the amount of research he did. And also he got stuck in writing an introduction on the history, which ended up taking up all his time. And I have letters from the editor saying, stop writing the history and get to the interviews. But he just couldn’t do it.

Melissa Murray It’s such a relatable issue as a writer and an academic, just to get bogged down in something. And the immediate response is just do more research, when in fact sometimes you have to put down the pen and just try and commit something to paper. But one of the things that stood out for me here was that his wrenching process was also really wrenching for your mother, because she was an actual partner in this. She was helping. Not just helping as a help meet. She was literally on the page with him. She was an anthropologist doing these interviews. She was as invested in this book as he was, and it never comes about. But what does come through as you go through this archive is that she is an academic force in her own right. She’s a very talented interviewer. What did you learn about her as an anthropologists as you were going through all of this?

Dorothy Roberts Yes thanks for bringing her up because she also plays a critical role obviously in my upbringing in my identity and in my memoir and she never became a professor because she gave up her phd work at northwestern university in the nineteen fifties when i was born in nineteen fifty six and then my sisters who were twins were born. A year and three months later. So she had three little kids to take care of. And she invested a lot in this project of my father’s, not only interviewing, helping to find the mixed-race couples and recruit them to the study, half of the interviews in the 1950s, a big chunk of them were hers. And I discovered. Her talent for interviewing, and her notes were just delightful. She writes about the settings, about the personalities. She writes the children, which was something my father didn’t really do other than describing their physical features, you know, and whether they looked more black or white and are in between. My mother described their interactions with the mothers she was interviewing, and they read like screenplays. They’re really. Fun to read. And I discovered my mother’s talent for writing, in reading her interview notes, and also understood why she was so frustrated with my father. She constantly harangued him about finishing this book. And you know, I can remember hearing her in her British accent. She was from Jamaica, but she was red. She was a Todd in. And woolmer school for girls which emphasize proper pronunciation and intonation and she would probably say Bob finish the book finish the time and now I understand why I used to think she was mean because she was always bothering him about this and now i see she invested her Ph.D., you know, gave that up for him. Raised his children. She worked on the book with him and she invested so much and he and he never wrote it. She probably would have finished the book herself if she had the opportunity. So I really came to admire even more than I already did my mother’s contribution to my father’s project that what I saw as his project and what she sacrificed. To raise me and my sisters. I think Jamaicans might say she was very vexed with him over time for finishing the book. Very, very vexxed. The Jamaicans will relate because my mother was more ambitious than my father and she just sacrificed her opportunity to succeed in academia in order to marry him and raise us. And One lesson she taught me and my sisters over and over again was don’t get married until you get your PhD and establish yourself academically. And in fact, don’t date until you do that was really her message. That is very Jamaican, don’t date. Stay away, stay away from men and boys all together. Can I?

Kate Shaw Just read a sentence or two, Dorothy, from early on, when you’re talking about your mother, and she comes across so beautifully, and there’s a sentence when you are talking about she’s this incredible student in Jamaica, and then she travels to Liberia as a young woman. And you suggest that that journey kind of embodied the contradictions of her personality. So you write, quote, She was a woman who defied easy explanation, regal and proper, yet down-to-earth and fun-loving, respectable, yet rebellious, conservative, yet unorthodox. She insisted on strict etiquette and decorum, yet broke every rule that sought to confine how a black woman of her era should live her life. I love that description, and she comes across so beautifully. And I love it you not only describe her kind of witty and captivating kind of writerly voice, but also we get a lot of excerpts from the things that she wrote. And you really, they are vivid. They really do bring these scenes to life. So I want to ask a different question actually though, which is that you describe your surprise in learning. So The relationships are the first focus, right, between spouses, these interracial couples, but then also there’s a shift to children in your parents’ research. And you describe your surprise in learning that you yourself are research participant number 224 in the files. So can you talk a little bit and reflect on that discovery?

Dorothy Roberts Sure. So after I spent the summer reading the interviews that my parents conducted of interracial couples, I looked through the interviews of children, hundreds of children that my father conducted during the 19, he started around the 60s to the 80s. And… I didn’t have a chance to read them all the way I did the interviews of the couples, but I kind of flipped through them. And so I was surprised to find a folder on me. As you said, number 224, and when I opened it up, it contained an essay I had written in college for a sociology course, actually a paper, it was a full-blown paper I wrote for a course on ethnicity in my first year. In college, and a letter my father wrote to me as an adult, and then an essay I wrote, which I think he must have asked me to write for his edification of my own identity and how I felt about interracial marriage. And I believe I also wrote that the summer I finished my first year in college. So of course this was shocking to me that he in a way was treating me as a research participant and that added to this perplexing relationship between his research and my family, you know, discovering that he had started the research project before he started our family. And now I’m part of that as well. And it also got me, though, to think more about my relationship to him and about the significance of having a white father as a black woman. For a long time, since I was very little, I identified solely as black. And in fact, in college, and I write to him about this, which is very painful, I hid the fact that he was white deliberately. I not only didn’t correct people when they assumed that my father was black, but once in that same ethnicity class, when we had a small group discussion and we were supposed to identify each other’s ethnic background and everybody identified me as black except one white man in the class, a student, who said, I think she has some European. Background, and the instructor turned to me and said, Dorothy, is that true? And I, I froze, my stomach clenched, I can still feel that feeling of my stomach clenching and thinking rapidly, am I going to reveal that my father’s white? And, I answered, I have a white grandmother, but I never met her. Which was true, I do have a grandmother, my father’s mother, and I never met her. In part because my father wouldn’t marry my mother until she died because he was afraid she’d be so upset. So I deliberately hid the fact that my father was white and I write about this in this essay that I wrote to him and I felt so bad about it. It was so mean and disparaging of our relationship which was very, very close. And so part of this memoir is my reconciling, you know, in my old age now, this fact that I have a white father but identify as black. I don’t identify as biracial even. I really leave out that part of my identity when I define myself, but I had to figure out, but I don’t want to deny my father. He was extremely important to me. We loved each other dearly. And he’s also probably one of the main reasons why I have devoted my career to studying and opposing racism, especially racism against black women. That comes largely from my father’s mission throughout my childhood to end the racial caste system, as he called it in Chicago. Now we disagreed about how to do it. He thought the way to do it was to increase interracial marriages. And I debated him on that. But that underlying mission that connects your work and your life, that your research should be toward. A just end to create a better world. The underlying message he and my mother taught me that there is only one human race and our highest mission should be to uphold our common humanity. You know, those lessons were essential. I realized even more working on this memoir to the black woman I am today to the activist I am today to someone who connects and thinks it’s essential to connect. My scholarship to my activism, to be connected to a community, to a movement. All of that I learned from my father.

Melissa Murray It’s such an interesting question for someone to raise in class. Do you have European ancestry? Anyone who’s sort of looking at black people in the US would say they all have European ancestry for one reason or another. The insistence on monoratiality in a world where we know that that isn’t true is kind of stunning. But what also is striking is done. I followed your career for years. In many ways, I think I’ve tried to model my own career after yours. You’re such an amazing example of how to do work that really matters to you and is personal, but to do it in a way that is rigorous and meticulous and defies what I think some in the academy would think about scholars of color who write about questions of color and race. To find that the root of that is actually your white father is really interesting and surprising. And I wonder, what do you make of the Academy’s derision of quote unquote me search, of academics who are deeply, deeply, and personally connected to what they write about, and the sense that to be truly rigorous, you must be abstract and theoretical about what you write about. And here was your father and your mother deeply immersed in a world. In excavating academically a world that they inhabited and occupied. Yeah.

Dorothy Roberts I don’t know that you have to go to the extreme my parents did of actually living out their research and incorporating it so deeply into their family lives, but I absolutely resist this idea that we have to disconnect our research from our personal lives or from our personal commitments. I don’t think I could have written any of my books, especially Killing the Black body and torn apart. Without being connected to movements. With Killing the Black Body, the reproductive justice movement, which was emerging as I was writing the book, and with Torn Apart, the movement led primarily by black mothers whose children have been taken from them to end the family policing system. And my ability, my inspiration, my knowledge about these topics, my motivation, all of that comes from my engagement and camaraderie and collective work with people in movements that share my values and share my aims for what I want my to be able to do. I mean, my highest goal for my books. Is not so much to advance academic work, but to advance the work of activists. And that’s the greatest gratification I have is that my books have been seen as useful to people who are working on the ground to change, transform the oppressive systems that I’m writing about. So I really. Disagree with this idea that we have to be abstract and theoretical and immune from politics. It’s absurd. Even science, which is biological sciences, for example, that are supposed to be absolutely hermetically sealed from politics, have from the very beginning been influenced by politics and influence politics, whether we’re talking about the life sciences or the social sciences. It’s it’s absurd to say it’s a historical to say they’re separate from politics and we’re seeing that today more than ever where it’s explicit it’s an executive orders.

Kate Shaw Telling you what the political overlay to your scientific research must be.

Dorothy Roberts Absolutely. So to me, if you’re going to do research, it should be aimed at making the world better at aim towards social justice. And I don’t see any problem with saying that explicitly and making your work be and either entangled with or at least deeply influenced by movements that are working toward. Justice and equality and our common humanity.

Kate Shaw Well, I really want to just bottle that and send it to every young scholar thinking about how to make their way. And you’re not going to be Dorothy Roberts when you start off and maybe ever. But that, I think, is as good a set of guiding principles as you could articulate.

Melissa Murray And every recruiting committee.

Kate Shaw Correct.

Dorothy Roberts Thank you. Thank you.

Kate Shaw I want to ask a sort of a lighter question, which is, I love the cover, the beautiful like, I think it’s a wedding day, right, photo of your parents, I’m holding it up right now for those listening. There are a lot of photos throughout the book, but this, you know, kind of beautiful cover image, I was just curious how of the materials that you looked at and considered how you decided on this one for the cover.

Dorothy Roberts Yes. Well, I’ve always loved that photo. It’s one of my favorite photos of my probably is my favorite photo of my parents. I’ve got lots of family photos. I love to with the three of us, the kids, you know, there as well. But my parents together, it’s the one that really shows their deep love for each other. I think the best and as authors know, You go through different suggestions from the artists, the designers at the press for a book cover. And the original suggestions were a number of different photos of my family. And there was one cover that left out that photo. And I wrote back, you’ve left out my favorite photo of my parents. And then the designers got the idea, well, that’s her favorite photo. Maybe we should just focus on that one. So then they sent me different versions of multiple photos on the cover and that photo on the covering. I said, definitely. I think just the one photo that is the best, that’s the most reflective of my parents’ love is the one to use. So that’s how we came up with it.

Kate Shaw Yeah, you can really see it.

Melissa Murray So Dorothy, I guess to wrap up, it’s hard not to think about your work in this book without linking it to the current political zeitgeist, where it feels like so much of the progress that has been made is really under attack. And your work is very bald about the attacks on that progress. With that in mind, what is giving you hope in this moment? What do you hold fast to? And what keeps you going in. What feels like a pretty grim timeframe.

Dorothy Roberts Yeah, what keeps me going and gives me hope and inspiration are a couple of things. One is going back to what I was saying about being engaged in movements that are working toward a more just society. My experience with the two movements I’ve been most involved with, Reproductive Justice and the movement to abolish family policing, is that, you know, which, you know are pretty. Led by and predominantly made up of black women. And we tend to celebrate even little victories. We’ll celebrate the dissents. We’ll the tiny victories at the local level, even if federal policy is going drastically backward and horrifically backward. The celebrations of victories remind you that we can win in the end. We have to just be constant and committed and keep working at it. So that’s one. The other is my students. I am so blessed to teach courses where I get the public interest students who are dedicated to various social justice fields of law. They’re gonna be public defenders are gonna be family defenders they’re going to work for public interest organizations and or if not you know some do go to big firms to but they’re they’re doing the work on the side of the doing a lot of public interest work and because i you know i teach reproductive rights and justice get the students who are interested in that and so i have. Over the years had these amazing students who are so dedicated and so committed and creative and they give me hope that there is another generation coming along that’s continue to do the work for a more equal and just and caring society.

Kate Shaw Well, that’s a wonderful place to leave it. The book, once again, is The Mixed Marriage Project, a memoir of love, race, and family. The author is the incomparable Dorothy Roberts. The book is available now. Pick up your copy wherever you get your books, bookshop.org or anywhere else. It’s a beautiful story of love and family and discovery. Thank you so much for joining us today, Dorothy.

Dorothy Roberts Oh, thank you, too. I enjoyed the conversation. I really appreciate it. Take good care.

Melissa Murray That was such a good conversation. I had so much fun talking to Dorothy.

Kate Shaw She’s the best.

Melissa Murray She’s fantastic. We do have some housekeeping. And guess what? Tickets for Crooked Con 2026 are now on sale. You can come and hang out with us in D.C. In November. There will be live shows. There will be panels. There’ll be meetups and opportunities to learn whatever lessons we need post midterms. Crooked’s Friends of the Pod subscribers get a subscriber only price, a little bit like a slush fund. It’s gonna be great.

Kate Shaw No, not at all.

Leah Litman No, not like a slush fund, Melissa.No.

Melissa Murray Actually, you have to pay us.

Leah Litman A subscriber fund.

Melissa Murray Yeah, it’s a subscriber fund, yeah. You have to paying us. Crooked’s Friends of the Pod subscribers do not get a slush fund, but they do get a subscriber only price, a discounted CrookedCon ticket. So be sure to join Friends of The Pod. And there will also be more Friends of The Pod perks at the all-day long CrookedCon. It’s going to be fantastic. There will be LSAT tutoring by none other than Jon Lovett. It’s gonna be great. I’m kidding. I don’t know if that’s gonna happen. It should happen.

Kate Shaw Friends of the Pod, like a slush fund only better and also legal. Have to workshop that.

Melissa Murray You can get all the information that you need at crookedcon.com and we cannot wait to see you there.

Kate Shaw Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Jordan Thomas is our intern. Our music is by Eddie Cooper. Our team includes Matt DeGroot, Ben Hethcoat, Johanna Case, Kiril Palaveev, Eric Schutt, and our music is Eddie Cooper Our production staff is proudly unionized with the Writers Guild of America East.

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