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Melissa, Leah, and Kate kick the show off with a look at the Court’s 4-4 deadlock on Oklahoma’s religious charter school case. Then, it’s a romp through the shadow docket, Judge Jim Ho’s sweaty pleas for attention, Kristi Noem’s humiliating Senate hearing, and selections from Trump’s fascism grab bag. Leah also speaks with Professor Noah Rosenblum of NYU School of Law about the 6-3 decision from the Court allowing the president to fire federal commissioners without cause.

 

Hosts’ favorite things:

• Kate: Read Your Way Through New York City (NYT); Girl on Girl How: Pop Culture Turned a Generation of Women Against Themselves, Sophie Gilbert; Cahokia Jazz, Francis Spufford
• Leah: Matt Kacsmaryk Shouldn’t Be a Judge, Chris Geidner (Law Dork); Let Them Stare, Julie Murphy and Jonathan Van Ness; Kissing Girls on Shabbat, Sara Glass; The Duke of Shadows, Meredith Duran
• Melissa: The Four Seasons (Netflix); Matriarch, Tina Knowles

 

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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 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.

 

Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I’m Kate Shaw.

 

Leah Litman I’m Leah Litman.

 

Melissa Murray And I’m Melissa Murray. And we’ve got another jam-packed episode in store for you today. We are going to cover the opinions or lack thereof that we got from the court this week in argued cases, and then we’re going to switch to all of the legal news that will include some developments in lower courts as well as developments on the court’s shadow jacket, vis-a-vis the Trump Administration.

 

Leah Litman finally, I will have a conversation with Melissa’s colleague at NYU, Professor Noah Rosenblum, about the latest long-standing precedent that has structured government as we know it, that the court decided to torch on the shadow docket and without so much as naming it.

 

Kate Shaw So first up, SCOTUS opinions and non-opinions. First, the non- opinion decision, and it is a big one even if it is in non- Opinion. So last Thursday, the court released a one-sentence per curiam opinion in Oklahoma Charter School Board versus Drummond. The per curium opinion indicated that the court had divided equally four to four. And when the court ties like this, it means that the judgment being reviewed is affirmed, but there isn’t a presidential Supreme Court opinion. So here, the decision of the Oklahoma Supreme Court, which had gone against this would-be religious charter school, stands.

 

Melissa Murray This is the case where a religious charter school, St. Isidore’s, argued that the First Amendment’s Free Exercise Clause required the state of Oklahoma to grant St. Isidores a charter. So let me put this in even plainer terms. The religious school argued that The First Amendment requires a state to create and fund a religious public charter school. You heard me right. As we mentioned in our earlier coverage of this case, Justice Barrett recused herself. She gave no reasons for her recusal. But on the podcast, we speculated. It was likely because a Notre Dame law school clinic and Professor Nicole Stelle Garnett, who is a close friend of Justice Barrett’s, was involved in the litigation. As a result of the per curiam decision here, Oklahoma is not required to create the religious public charter school as St. Isidore’s wanted.

 

Leah Litman But lest you breathe easy, we now know that there are four Republican justices who would say that states are required to create religious public charter schools if they operate a charter school system that has secular schools, which is true in the 40-some states with charter school systems. So I know we are often turds in the punch bowl, but I feel like people looked at this decision and thought, win. And I thought, oh, shit. So. Obviously, four Republican appointees willing to do this. One Republican appointee, who’s obviously a liberal squish slash rhino, apparently doesn’t want to overrule the Establishment Clause and declare that clause a legal rank unconstitutional discrimination against the religious conservatives who want religious public schools. Go big or go home. I don’t know whoever this guy is, what he’s up to. Any speculations? Can we speculate? Obviously, I think it’s Sam Alito. He read my book and was like, you’re right, Nia, you are right. She’s got a point.

 

Kate Shaw Yep, he personally bought half of the books that put you at number four on the New York Times bestseller list. Thanks Sam. I’m sure of that. Thanks Sam, always doing.

 

Melissa Murray Always doing me those solids. He’s burning them, but he did buy them first.

 

Leah Litman Now I understand it! I understand that he literally tried to buy all of us to burn.

 

Melissa Murray Buy all the books to burn them. There’s a bonfire on Long Beach down the shore. And everyone’s like, OK, what is that? Smells like a lot.

 

Kate Shaw Flag flying over it

 

Leah Litman That smells like lullus. That smells lullous. That conservative grievance energy always lighting shit up.

 

Kate Shaw Oh, that’s a good candle for next Christmas. We should think about having a new candle made. Smells like…

 

Melissa Murray So I have to say, we do live in the grimmest timeline when a tie is portrayed as a win.

 

Kate Shaw But in terms of who it was, in all seriousness, it has to be Roberts, right? Okay, go Kate, cook. There’s not much to cook. It’s just like, I cracked an egg. It’s John Roberts. It has to.

 

Melissa Murray I thought you were going to be super optimistic.

 

Kate Shaw No, it’s like, it was Brett Kavanaugh in the study. No, it was the beer can, no. No, it was the beer can, no.

 

Leah Litman It was John Roberts with the fucking Establishment Clause. He’s like, what is this? I’m gonna try and use it here.

 

Kate Shaw I’m trying to figure out how to extend the metaphor, he’s not killing anyone with it, he’s preserving life. Yeah, I think the clue just doesn’t quite work. But it was obviously Roberts, which is, you know, something you get to four. Sometimes he is the guy they can get. But I do think that you’re right, Melissa, it’s bleak that a 4-4 tie is a win. And I also think sort of to Leah’s turd in the punch ball point. Even I am not prepared to celebrate this at all, or to say like, oh, well, Barrett will be in the next case, and who knows, maybe she’s gettable. I’m pretty sure that the next time this issue gets to the court, and there are already cases percolating in the lower courts and other states, and so it is a question of when and not if, I’m sure she’s going to provide the deciding vote. I cannot muster the optimism to suggest otherwise. So this is a very temporary reprieve unless something dramatic changes. All right, so that was the non-opinion opinion, important but likely temporary. We also got the opinion in Koussis versus United States, an actual opinion. This is a case about whether the federal government can prosecute for fraud in circumstances where a contractor’s non-performance of a contractual provision did not result in an economic loss to the other contracting party. A reminder, we talked briefly about this case previously. This case involves a contractor who agreed to a state government contract that required the contractor. To subcontract some portion of the work to a disadvantaged business enterprise. The contractor agreed to these terms, but then didn’t actually use a disadvantaged business enterprise subcontractor as required. The contractor said, yeah, okay, fine, we didn’t do that, but it didn’t amount to fraud because it didn t affect the economic value of the contract, right? The price of the goods and services was the same, although, you know, the non-compliance with this particular contractual term obviously does matter to the other contracting party. So the court, in an opinion by Justice Barrett, held that a defendant who induces a victim to enter into a transaction under materially false pretenses can be convicted of federal fraud, even if the defendant did not seek to cause the victim economic loss. And there were a bunch of separate concurrences. So mostly, I thought striking because this Supreme Court actually saw a fraud prosecution that it allowed. Wow. I think it was the disadvantaged businesses. They were like, nope.

 

Melissa Murray Exactly.

 

Kate Shaw I actually was curious whether some deep skepticism about the permissibility of that contractual term at all would permeate the majority opinion. But they managed to refrain from opining about the dubiousness of that requirement. Good on them.

 

Melissa Murray Okay, let’s turn to the news. First up, we wanted to update you listeners on a few related matters concerning immigration. The Cato Institute published a study that investigated the more than 200 Venezuelan men who have been renditioned to CICOT, that is the mega prison in El Salvador, and they have been conditioned there under the auspices of the Alien Enemies Act. The report claims to identify. 50 people who actually came to the United States lawfully and who have never violated any immigration law. And nevertheless, they have been renditioned and condemned to hard labor at CICOT by Trump, Rubio and Stephen Miller.

 

Kate Shaw And in the spirit of credit where credit is due, Lord knows we do not always agree with the libertarian Cato Institute, but the government snatching people off the street, many of them with zero criminal or even immigration infractions, and sentencing them to life at a gulag without any process whatsoever seems like the kind of thing around which liberals and progressives and libertarians should be able to find common cause, and I, for one, am here for it. I am actually really grateful for the careful work that went into this study. There are stories and pictures that they have compiled of these individuals, and they’re simultaneously totally heartbreaking and totally enraging. Okay, also on the Alien Enemies Act Beat, we previously described the second case in which a district court ordered the federal government to facilitate a deportee’s return to the United States, here a man who goes by the pseudonym Christian, because he was part of a settlement that precluded his removal while his asylum application remained pending. So in a two-to-one decision authored by Judge D’Andrea Benjamin, the Fourth Circuit left in place the district court’s decision directing the federal government to facilitate Christian’s return. There was a dissent from Trump appointee Julius Richardson.

 

Leah Litman So some notable quotables from the Fourth Circuit opinion. As the Fourth circuit observed, the district court required defendants make a good faith request to the government of El Salvador to release Christian. Judge Richardson claims that this command constitutes forced negotiation with a foreign state. But the government cannot facilitate Christians return telepathically. It must express in words to the Government of El Salvador that Christian be released for transport back to the United States. It then goes on to describe how… You know, Christiane was subject to the settlement and the government is trying to challenge it and the proceedings. And it notes, quote, the government has no response to this charge, a deafening silence, end quote. Judge Roger Gregory concurred separately to express his view that Trump’s invocation of the Alien Enemies Act was illegal in its entirety.

 

Kate Shaw Moving right along, in another Court of Appeals, the Fifth, Judge Jim Ho’s audition for a promotion continues apace. He may even have upped the ante. So this latest bid to become America’s next top justice came in the case known as AARP vs. Trump that the Supreme Court recently remanded by a 7-2 vote to the Fifth Circuit with instructions that the Court of appeals tell the government what due process is required by way of notice to individuals subject to the Alien Enemies Act. And the court in that 7-2 ruling made clear that the 24-hour English-only notice that didn’t describe how to challenge the expulsions, which is what the government had sought to provide, was insufficient to meet the demands of due process.

 

Melissa Murray The Fifth Circuit has decided to take up this pressing question of what process is due on an expedited basis. And they issued an order scheduling the case for the next, quote unquote, randomly designated regular oral argument panel. And Judge Jim Ho took that personally. America’s Next Top Justice wrote a concurrence to the panel’s order, scheduling the matter for the Next Oral Argument Panel. Because scheduling decisions obviously require separate writings. You’ve read my mind, Leah. I say concurrence, but as Leah suggests, we really should be saying concurrence with air quotes because what this is is not a concurrence because you can’t concur to a scheduling order. And instead, what this reads as is just a really long pick me, choose me, love me letter to one Donald J. Trump. It begins as such, quote, Petitioners identified as members of Trende Aragwa, a designated foreign terrorist organization should not be allowed to proceed in this appeal. Then Judge Ho goes on to add, quote, we should admit that this is special treatment being afforded to certain favored litigants like members of Trende Aragon. And we should stop pretending that Lady Justice is blindfolded, end quote. Which prompts me to ask, are you even hoeing if you aren’t defending

 

Leah Litman justices honor? It is an interesting question and if there were any doubt how injudicious this was, he is just now asserting these are members of Trende Aragwa when of course that is contested, there is little evidence to back this up, in some cases the government has conceded, they are not, it’s just grotesque and-.

 

Melissa Murray Can I say one more? Isn’t it a Fox News like, meme, basically that all Democrats care about is protecting unlawful immigrant criminals. I mean, this is basically what he’s saying. It’s just in better language.

 

Leah Litman No, it’s like Stephen Miller got in front of a camera, and then he just transcribed it, basically. So Judge Ho specifically noted that he was compelled to put pen to paper on this air quote concurrence, quote, to state my sincere concerns about how the district judge, as well as the president and other officials, have been treated in this case, end quote. Forget Lady Justice, Jim Ho is here to defend Donald Trump and Stephen Miller, because they and not the men expelled to a foreign torture prison are the real victims here. Like Ho wanted Trump to know that had he been on the Supreme Court, he would have voted real hard with Justices Alito and Thomas, of course, who he’s angling to replace.

 

Melissa Murray This love, okay, excuse me, this concur, that’s not right either. Whatever this was, also featured this curious line, quote, it is not the role of the judiciary to check the excesses of other branches, any more than it is our role to check the excess of any other American citizen, end quote. What my good sir? This whole line seemed to be a complete subtweet of both the structure of the constitution and the whole project of constitutional design and of Chief Justice John Roberts, who a few weeks earlier publicly confirmed what we know from constitutional law, that it is the role of the courts to check the excesses of Congress and the president. But continue on in your bid to be America’s next top justice, sir.

 

Kate Shaw Somehow, amazingly, Judge Ho was just getting started though, so are you even auditioning if you don’t criticize the first black president of the United States for being too mean to the conservative justices while you are personally accusing the Supreme Court of favoring gang members? That’s multitasking right there. That’s multitasking right there.

 

Leah Litman It is performance art and just so spectacular. I know we often say that the Fifth Circuit’s writings are conservative mad libs. And this was just in its truest, most condensed essence of that.

 

Kate Shaw That oeuvre. It was just, yeah, when you like cook some sauce down to like the thickest essence. A volute, as it were. That’s what this was. So just to offer a few additional details, Judge Ho offered a call back to 2010 when then President Barack Obama criticized the court for its 5-4 decision in Citizens United. As Judge Howe explained, quote, One former president tried to shame members of the Supreme Court during a State of the Union address by disparaging a recent ruling.

 

Melissa Murray You’ll recall that that statement from the president of the United States at the state of the union actually provoked one justice, Samuel A. Alito, to set the record straight right there and then in front of all of Congress by mouthing the words, not. True! And clenching his fists repeatedly. I don’t know if he clenches his fists. I just imagined that he was like Arthur the Aardvark, just like right there clenched his fists, anyway. So now we have Jim Ho doubling down. And it prompts me again to ask, are you even hoeing if you are not Sam Alito’s wingman?

 

Leah Litman As Tyra Banks say, ho, but make it a call back to Sam Alito in like 2011.

 

Melissa Murray Make it fashion. Do you know what we’re talking about, Kate?

 

No. No, not really.

 

Melissa Murray That’s okay, just like, make it editorial.

 

Leah Litman It’s all good. We were rooting for you Kate, we were all rooting for you. That’s another America’s Next Top Model reference. Tiffany. Shout out to Tiffany.

 

Melissa Murray Anyway, this wingman effort was then followed by a series of scattershot attacks on other recent Democratic presidents, Joe Biden, Bill Clinton. There’s also the suggestion that courts are being mean to this particular president, his president, Donald J. Trump. And again, I just have to say, only Judge Jim Ho could make you root for Kyle Duncan or Eileen Kinn. To be clear, both Kyle Duncan and Eileen Cannon would probably be awful SCOTUS picks, but the silver lining of their nominations would be the delirious pleasure of knowing that Jim Ho humiliated himself like this for absolutely nothing.

 

Leah Litman This is why, Melissa, I think you have declared me an honorary Virgo because this thought gives me true joy.

 

Melissa Murray Exactly!

 

Leah Litman Exactly. Like swaddling yourself in cashmere and just being like, eh, love it. Just like that. But if Jim Ho thinks he has identified the true victims in all of this, namely Stephen Miller and Donald Trump, he is, of course, horribly wrong because The Guardian reported that the lawyer for the Venezuelan nationals who are confined in the El Salvador prison, who herself is in El Salvador. Was arrested and being held without access to lawyers for alleged embezzlement that occurred a decade ago. That lawyer, Ruth Lopez, has been an outspoken critic of Salvadoran President Bukele’s widespread detentions and more. But please, Judge Ho, tell me more about how courts are unfairly criticizing or holding to account the administration.

 

Melissa Murray Anyway, we’ve been talking about the court’s bombshell due process ruling that was issued on Friday, May 16th, and we have some more news related to that ruling. The ruling blocked the Trump administration from continuing the policy of expelling individuals from the Northern District of Texas on the ground that the government had not provided those individuals with adequate process to challenge their expulsions. Well, in what can only be described as a terrific game of good court, bad court. SCOTUS followed up that banger with an order issued last Monday on another matter related to Venezuelan migrants.

 

Kate Shaw So this particular unreasoned, unexplained order concerned the temporary protected status or TPS program. This is a form of legal authorization and work authorization granted to nationals of certain countries on the ground that conditions in their home countries would make removal and deportation inhumane. In this case, TPS status had been granted to eligible Venezuelans in the United States, providing them with legal authorization to remain in the U.S. Because as the State Department itself continues to note in its travel advisory. In Venezuela, there are serious risks of wrongful detention, torture while in detention, kidnapping, terrorism, and more.

 

Melissa Murray Early in his administration, President Trump purported to rescind TPS for more than 350,000 Venezuelan nationals in the United States. A lower court blocked that decision, concluding that it was inadequately explained and justified, among other deficiencies.

 

Kate Shaw Now, that lower court ruling, as a matter of law, may be right, and it may be wrong. But it was reasoned. It explained itself. By contrast, without warning, without saying a word, SCOTUS last week stayed that lower court decision, allowing the Trump administration to cancel DPS for Venezuelans while the litigation is pending. This is essentially sudden and drastic mass illegalization. With the release of this order, SCOTUS withdrew legal authorization and protections from hundreds of thousands of Venezuelans, rendering them undocumented and potentially vulnerable to deportation. This is bad enough on its own. It is additionally concerning because the Trump administration has been targeting Venezuelan for expulsion under the Alien Enemies Act. In this case only, Justice Jackson noted her dissent. I am not quite sure what gives there.

 

Leah Litman So I had two thoughts about the absence of other dissents and the timing of this decision. One is, was there some sort of agreement or negotiation where the court came down seven to two saying due process is a thing for those Venezuela nationals detained at the Texas facility who were under threat of being expelled under the Alien Enemies Act and Now, the Supreme Court is basically saying, yes, this group of people is now suddenly eligible for deportation, but you have to conduct those deportations in accordance with basic process, like basically deport people better. It reminded me honestly of the DACA decision from the first Trump administration or the citizenship census.

 

Melissa Murray Get the process right, do it better.

 

Leah Litman Exactly, right, where they’re just saying lie better, right? Dot your i’s, cross your t’s. You can do all of these cruel things, but do them better. And I did wonder if, again, the lack of noted dissents was in part an agreement or an understanding among some of the Appeasement? Yeah, appeasement, you might say. And it also slightly irked me because the bombshell due process ruling got round the clock, great press coverage for the court over the weekend. And then this TPS decision just got drowned out.

 

Melissa Murray Was talking about it and sort of like, I mean, I described it to someone as the court giveth and the court taketh away. I mean but all anyone wanted to stay on was the court give it. I’m like, Yes.

 

Leah Litman Speaking of the administration’s cruel, horrific immigration policies, the Department of Homeland Security wants you to know that they are not the Gestapo, so noted. So the administration posted on X, this is under the Homeland Security official account, quote, it is absolutely sickening to compare ICE law enforcement agents to the Gestapo, end quote. It does go on to elaborate on this, but I just feel like, again, if you are. Having to make public statements about how you’re not the Gestapo, maybe stop and do a little soul searching.

 

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Melissa Murray We should also note some important developments in a lower court case about the government’s efforts to expel individuals to third countries, that is countries other than their countries of origin that were designated for removal in immigration proceedings. We have previously noted that a judge blocked the government from effectuating those kinds of renditions to third-countries, at least in the absence of sufficiently rigorous process. And again, you should recall that there were stories about the Government trying to send some. Vietnamese and Southeast Asian men to Libya.

 

Kate Shaw Well, last week, lawyers for some migrants sounded the alarm to the court that the government was planning to do so again, only now it was really doing so. And in fact, it did do so by putting a Vietnamese man and a Burmese man on a plane to South Sudan, which is on the cusp of falling into another civil war, one of the most dangerous places on earth. I don’t think we know where in South Sudan specifically these individuals were bound for. Once again, the government seems to have provided these men with something like a day’s notice and no real opportunity to contest their expulsions.

 

Leah Litman But because of the swift action of the lawyers and the district judge, the judge issued an order directing the government to maintain custody and control over the individuals on the plane, i.e. Government can’t turn them over to a foreign sovereign, at least until the men have had the opportunity to have their asylum claims or other claims for immigration relief sorted out, even if that process takes place in another country while they are in United States custody in that other country. The judge also said he believed the government was pretty clearly in violation of his previous order blocking the expulsions to third countries and that he would return to that issue, including possible contempt proceedings, later on. At the time of this recording, we think these men are on a plane in Djibouti, but we just don’t.

 

Kate Shaw Know. And the prospect that they’re going to get anything resembling meaningful process while sitting on a plane somewhere with Homeland Security officials saying, are you scared? No, great. Or yes, I don’t really believe you, done. Like I mean, it seems like these lawyers did just incredible work in expeditiously raising these issues before the district court. And the hearing was sort of fast enough that I didn’t follow like every twist and turn. But it does feel like this. May just have the effect of letting the administration superficially provide something that looks like process and without actually meaningfully ensuring the safety of these individuals they’re about to dump in South Sudan, like I think that might be happening. Okay, well, that’s horrifying. And I guess as good a segue as any to a new segment, we are now calling fascism grab bag. There is just so much to cover. We are going to lightning round, go through it. So we are starting with the administration’s chilling pattern of criminalizing political opposition. First entry, interim United States Attorney for New Jersey Alina Habba has charged United States Representative LaMonica McIver, a member of New Jersey’s congressional delegation with assaulting slash interfering with a federal law enforcement officer. Thankfully, the trespass charges that Habba previously brought against New York Mayor Rasparaka were dropped. But these new charges against, again, a sitting member of Congress have been filed. The charging document even concedes that one of the reasons that Representative McIver was at this federal detention facility was to conduct oversight pursuant to her job as United States Representative. It’s stunning.

 

Leah Litman Well, and also there’s a video, yes, multiple videos of what happened. We can all see it. And she’s not assaulting an ICE officer.

 

Melissa Murray Her. She’s just not. The DOJ has also opened an investigation into Andrew Cuomo. The investigation considers whether Cuomo lied to Congress in earlier testimony regarding New York State’s handling of the COVID-19 pandemic. Cuomo was, of course, New York state’s governor at the time. We should note that there are perhaps some interesting confluences here. The conduct that is the subject of the investigation occurred at a time when Cuomo, as governor of New York, was a persistent thorn in the side of the first Trump administration. And it is worth noting that Cuomo is now running and indeed may be a front runner for the Democratic primary in New York City’s mayoral race. And that primary is scheduled for June, which makes the timing of all of this, I don’t know, I’m kind of curious because… Of course, as you know, this is not the first time this administration has shown interest in New York City local politics. Listeners, you’ll recall that the administration pushed to have the federal charges against the incumbent New York City mayor, Eric Adams, dropped. And Adams, coincidentally again, is running as an independent to keep his seat. Many agree that Cuomo is perhaps Adams’ most serious competition in the mayoral race. So, super weird. That this is happening.

 

Kate Shaw And I know we’re a legal podcast and mostly a national podcast, but on the New York City mayoral race, let me just say one additional thing. So Melissa’s right, Cuomo’s definitely somehow, inexplicably the front runner. Adams is going to run likely as an independent. It is possible that there will be somebody who runs separately on the Working Families party line. So actual progressive New Yorkers who want to vote for somebody who’s not Eric Adams or Andrew Cuomo may have the opportunity to do that. So all of that to be determined, but I did want to. Plant a flag there in case New Yorkers are despairing of their electoral options in this upcoming election.

 

Melissa Murray Free political consulting to anyone who’s running the New York City mayoral race. If you free the shampoo from the CVS, I will vote for you.

 

Leah Litman That’s a platform. Make shampoo great again. So on this trend of the administration criminalizing political opposition or just using law enforcement to punish anyone who stands up against them and to create incentives for people to bend the knee. As we were recording, news broke that the Trump administration halted Harvard’s ability to enroll international students. International students make up a significant percentage of Harvard’s student body. This is just obvious retaliation against Harvard for having the audacity to stand up to the Trump administration and ideological retaliation.

 

Melissa Murray More than that, it’s not just that they are a huge portion of the student body. International students often are ineligible for federal financial aid, so they often pay full freight. And so international students are a major revenue-generating line item for most universities, including Harvard. So this is an effort to starve the schools financially.

 

Leah Litman Just like they are taking away their grants, trying to strip them of tax-exempt status. They are doing everything they can to force them into submission. So that concludes our fascism grab bag segment. We now have a host of developments related to sex, gender, and the lack of bodily autonomy and reproductive freedom that the misogynists in articles two and three have on.

 

Melissa Murray On the shadow docket, the Supreme Court recently issued an injunction pending appeal that prohibits the main legislature from censuring a legislator for her anti-trans speech by prohibiting her from voting. The case is called Libby versus Fecto. We should note that the legislator’s behavior was absolutely appalling here, although it’s also appalling that a state legislature might disenfranchise a body member and all of their constituents too. You know who this might be used against in the future if it was successful here. But we should also say that we think it’s really deeply troubling that the Supreme Court issued this injunction and didn’t really explain why they were doing so or why the request for an injunction that was granted in this case actually satisfied the high bar for such relief. So lots to complain about in this case.

 

Kate Shaw Yeah, and that’s what Justice Jackson, who dissented from the court’s order, really highlighted both the failure to satisfy what she thinks are the court factors for granting relief in this case, also the lack of a circuit split. So the question of the speech itself, the legislature’s action in response to the speech and the Supreme Court’s intervention, I think, sort of need to be separated out here. And I think there are real questions about whether the court fundamentally should have involved, but also, maybe. More importantly, without providing any kind of reasons whatsoever, right? This is obviously a through line on the shadow docket. Another development, so down in Amarillo, Texas, seat of someone we have to spend way too much of our one precious life thinking about, friend of the pod, chief scientist, knower of all things, Matty Kay, or Judge Matthew Kacsmaryk, has concluded in his infinite wisdom that reasonable accommodation claims and possibly all sexual harassment claims under Title VII are per se unavailable to transgender individuals. I think that’s what he thinks. He issued an opinion finding that the Biden administration’s 2024 enforcement guidelines concerning Title VII, the federal law prohibiting workplace discrimination and harassment, were illegal. The enforcement guidelines define prohibited harassment under Title 7 to include repeated and intentional use of a name or inconsistent with an individual’s gender identity. That is misgendering. And denial of access to bathroom or other sex-segregated facilities.

 

Leah Litman Listener is just a quick reminder that a mere five years ago, raging liberal Neil Gorsuch, joined by noted commie John Roberts, held that Title VII, which prohibits discrimination on the basis of sex, prohibits discrimination on the bases of gender identity, because discriminating on the base of gender identity necessarily entails discrimination based on sex, because reading and words. The basic logic of the.

 

Melissa Murray I use logic loosely. The basic logic, the logic of the Kacsmaryk opinion.

 

Leah Litman By which you mean anti-trans talking points.

 

Melissa Murray Anyway, the basic thrust of all of this is that trans people don’t really exist at all. Matty K opines, quote, the enforcement guidance contravenes Title VII’s plain text by expanding the scope of sex beyond the biological binary, male and female. Judge Kacsmaryk then refers to the enforcement guideline as concerning, quote a biological male employee who identifies as female or a, quote post-transition biological male employee who identifies as female. And as though stripping legal recognition for trans people wasn’t bad enough, Judge Kacsmaryk goes on to add, quote, Title VII does not bar workplace employment policies that protect the inherent differences between men and women. So we’re all clear now. Sex discrimination is good, as long as it’s making clear differences between men and woman, which is basically the definition of discrimination.

 

Leah Litman And if you’re wondering how some genius worked his way around the Supreme Court’s definitive holding that Title VII does prohibit discrimination on the basis of gender identity, here’s what America’s definer of sex and gender had to say. Quote, Bostock expressly refused to redefine sex under Title VII, end quote. Duh, dumb fuck. It didn’t define sex as gender identity. It said discrimination on the bases of gender identity entails discrimination on the basis sex. Like, you cannot do one. Without the other, which still makes it illegal. Shorter Medicaid, I can’t read, or at least can’t read, Supreme Court opinions.

 

Kate Shaw I don’t think he’s read Bostock, that’s my conclusion.

 

Leah Litman He read Justice Alito’s dissent, and he knows.

 

Kate Shaw That’s all. I think that’s the majority of him. That actually would explain a lot. That actually would explain a lot.

 

He got stuck on the pirate flag and he was like, I’m going to stop right here. Arr, arr.

 

Kate Shaw That’s right. He read the true flag opinion, and that’s what he’s basing his district board opinion on. All makes sense now.

 

Melissa Murray So just to be clear, Judge Kacsmaryk’s remedy for all of this is to simply excise and erase transgender people from the law, and maybe for good measure, also gays, lesbians, and bisexuals too. He advises that the following are illegal. Quote, all language defining sex to include sexual orientation and gender identity, and all language, defining sexual orientation and gender identify as a protected class. Just so we’re clear. What’s that you say, conservatives, about district court judges having too much power?

 

Kate Shaw I don’t know. Someone page Sam Alito. He’s gonna be big mad about this.

 

Leah Litman Oh yeah.

 

Melissa Murray Bigly mad.

 

Kate Shaw Okay, so we have other developments in the arena of civil rights that we wanted to touch on. So one in a really tragic story involving a woman named Adriana Smith, who is a pregnant woman in Georgia. She was declared brain dead after a medical emergency and she remains on a ventilator. She has been on life support for three months because the state of Georgia insists on keeping her on life-support in order to let the fetus she was carrying when she became brain dead develop enough to be delivered. So again, she’s a 30-year-old mother and nurse. She suffered from blood clots in the brain and was declared brain dead, which means that she is legally dead. At the time she was declared legally dead, this fetus was nine weeks old. Her family says the hospital has told them that keeping her on life support to gestate the fetus was required under Georgia’s restrictive anti-abortion law. And this is over the objections and contra the wishes. Of her family. When we told you that Dobbs invited states to treat women as vessels for gestating a fetus, that was not an exaggeration. That was a factual claim, and we are seeing it play out.

 

Melissa Murray But guess what, listeners, the Trump administration is protecting some rights, or at least some people’s rights. So let’s start with the gun owners. Trump’s DOJ has decided to permit the sale of what’s known as forced reset triggers. These are devices that allow semi-automatic weapons to fire rapid bursts of bullets. The ATF determined that these devices allow a semi- automatic AR-15 rifle to fire as fast as a military M16 rifle in automatic mode.  Oh my God, what could go wrong?

 

Kate Shaw These are not exactly the same thing as bump stocks, which some listeners will remember from the Cargill case last term, but they are very similar to them. In that case last time, six Republican justices engaged in a little light ammosexuality to conclude that federal firearms law did not prohibit bump stocks.

 

Leah Litman And the Trump administration decided to go even deeper into gun porn, going even bigger, reasoning that federal law could not prohibit forced reset triggers because they’re protected by the Second Amendment. Here’s a quote from Attorney General Pamela Jo Bondi, quote, this Department of Justice believes that the Second amendment is not a second class right, end quote.

 

Kate Shaw Do you think she came up with that line? Do you thinks she thinks it’s hers? Oh yeah, definitely.

 

Leah Litman Yeah.

 

Kate Shaw Therese Thomas would like a little bit. That’s true.

 

Leah Litman Sam Alito, too. So as part of this settlement with gun owners, NBC reported that ATF has to return thousands of seized forced reset triggers to their previous owners.

 

Melissa Murray You know what, I’m not mad at Pamela Jo Bondi for reiterating these terms. She is doing a sheep-eat, and we have so many he-peats that I like it when a lady decides to sheep-ete.

 

Leah Litman If it was just a sheepie without handing out forced reset triggers like candy, maybe I would hand it to her.

 

Melissa Murray We’re in a grim timeline, and I’m trying to take solace wherever I can find it. So this was a sheet and gender equity. So there. OK. Now, listeners, we move to the Trump administration’s concern with racial justice and ending racial discrimination, by which we mean whether or not it is permissible to allow black people to hold positions of authority. Spoiler alert, it may not be.

 

Kate Shaw Right, so the Civil Rights Division of the Department of Justice has announced an investigation into the city of Chicago’s employment practices because, get ready for this, Chicago’s Mayor Brandon Johnson touted the number of black officials in the city’s administration. And that apparently is intolerable.

 

Melissa Murray The first rule of Fight Club, Mayor Johnson.

 

Leah Litman So the Department of Justice also has moved to dismantle consent decrees that the federal government had entered into with police departments, including the police departments involved in the deaths of Breonna Taylor and George Floyd. These consent decries were designed to reduce excessive force, police violence, and police tactics that had resulted in murders and killings often of Black men. So, that is their take on… Racial discrimination and racial justice. And we also wanted to cover their approach to more rights and certain kinds of people that the administration might actually care about.

 

Kate Shaw Pamela Jo Bondi, bringing equity to mediocrity and demonstrating that MAGA yes women, in addition to MAGA, yes men, are a thing. Her Justice Department announced that it has agreed to settle the lawsuit against the federal government that was brought by the family of Ashley Babbitt, who is the January 6th rioter who was shot and killed during the insurrection at the Capitol. Under the settlement terms, Babbit’s family will receive $5 million of taxpayer money.

 

Melissa Murray Speaking of money, campaign finance regulation, we hardly knew ye. The Solicitor General of the United States, John Sauer, informed the court that the United States will not defend the constitutionality of a federal law limiting the amount of money that political parties can spend on an election campaign in coordination with a candidate. Because we just don’t have enough dark money swirling around in politics. Now, I want you all to insert Sam Alito mouthing. Right here. That’s right. Billionaires do not have enough influence. As Luther Vandross once said, never too much, never too much never too. I’ve been dying to do that.

 

Leah Litman Finally, I’m so glad the Solicitor General gave you the occasion to do so. So more on the law going to shit in the hands of Trump-toties, the New York Times reports that Emile Beauvais is being considered for a judgeship on the U.S. Court of Appeals for the third circuit, because what the fuck?

 

Melissa Murray We should note that this Third Circuit vacancy is a direct result of the Republican effort to trash Adil Manji, who was the Biden nominee for a spot on the Third Circuit. And Manji’s apparent offense was simply being the first Muslim who would have sat on that court and indeed any federal appellate court. We should also note that the Democrats kind of let this happen, ensuring that the seat for which Manji was tapped. Went unoccupied and then was available when the second Trump administration came in. So don’t worry though, folks. We have a great new nominee in Emile Beauvais.

 

Leah Litman Or at least prospective potential nominee. So if his name sounds familiar, that’s because Beauvais is a top DOJ official. He has been deeply involved in helping the administration carry out its immigration agenda. And he was also involved in the purge of career prosecutors. Yes, Beauvais is the one who pressured. The SDNY prosecutors to drop the charges against Eric Adams in exchange for the mayor’s cooperation with the administration’s immigration enforcement leading to mass resignations. This guy definitely sounds like he should be a judge. So thank you, Democrats, for your great work on this one.

 

Melissa Murray I saw on Blue Sky a meme that someone had made of Emile Beauvais as a garden gnome. Wow. It was actually really funny. Anyway, speaking of crispy gnomes, Christy Gnome appeared before the Senate this last week.

 

Leah Litman Note that, um, Melissa and I were texting about, uh, this episode and Kristi Noem and Melissa texted me, crispy gnome and I still knew what she meant, but it was just an auto correct of a legend. Like an absolute legend of an auto correct.

 

Kate Shaw That’s amazing.

 

Melissa Murray I mean, I literally just had this vision of, like, one of those garden gnomes was, like super, super tan, like they’ve been under the tanning. And maybe that’s exactly right.

 

Kate Shaw Autocorrect was onto something.

 

Melissa Murray It was. Anyway, Kristi Noem appeared before the Senate last week, and she managed to attack both the Constitution and New York Times bestselling author, Leah Lippman, in the process. So let’s roll the tape.

 

Clip So Secretary Noem, what is habeas corpus? Well, habeas Corpus is a constitutional right that the president has to be able to remove people from this country and suspend their right to. Let me stop you, ma’am. Habeas Corpus, excuse me, that’s incorrect.

 

Leah Litman So on TikTok, I did a you’re wrong bitch with a Taylor Swift angle about this Christie gnome thing. And for our listeners, we also prepared this mashup of Christie gnomes slash crispy gnomes and a callback to the last episode.

 

Clip Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country. Let’s just assume you’re dead wrong. Yes. Good stuff.

 

Kate Shaw It’s got a nice beat, you can dance to it. I mean, the timeline is the worst thing, but yeah, it’s generating some musical inspiration. So I guess we have that. Okay, there were, during that hearing, still more microaggressions against Leah and macroaggressons against the Constitution. So let’s play one of them here

 

Clip Do you know what section of the Constitution the suspension clause of habeas corpus is in? I do not. Do you which article it is in. No I do no sir.

 

Melissa Murray I want to just say, I know I’ve been giving Congress the business, but I just want to say props to Senator Maggie Hassan and Andy Kim. These were really good questions. They were important questions to ask and I’m glad that they asked them and I am glad that they solicited the answers that they did so everyone can know what we’re dealing with here.

 

Kate Shaw So more of this, please. Can we also, while we’re praising members of Congress, can I also just say that Joe Naguse from Colorado during the markup on the big budget bill last week in the House was brilliant and is always brilliant. I’m not sure we’ve had a chance to really praise him on this podcast, but he was grilling Jim Jordan on some newly added language and he is just fantastic. So I want to see more of him.

 

Melissa Murray We also got some additional details on the Qatari Air Force One, slash Trojan horse, slash gif, slash tip, slash bribe. Trojan Force One, Trojan force one. The jokes write themselves. Anyway, CNN reported that actually it might have been Trump who approached Qatar about this big, beautiful jet, which just to say that maybe. The Qataris did not make the initial outreach. Maybe the call was coming from inside the house. Shocking, I know. And we got some calls from our listeners who proposed some new nicknames for the new plane, which the administration has gratefully accepted. So here are the new proposals for your consideration. Up first, Error Force One, a very strong contender here. Good work. Number two. Air farce, one, love it, love it. And then finally, quid pro Qatar plane slash Qatar. I don’t know. I think there’s something there. There might need to be a little workshop. Kate, do you have anything to say about this one?

 

Kate Shaw Oh no, I was just thinking about, I don’t have a great, I’m shocking, I am sure, that I don’t have like a great turn of phrase for this scandal and the plane. But I was just thinking of the revelation that Trump is likely the instigator of this whole affair that is just so Wilbur Ross soliciting somebody to ask the question about citizenship on the 2020 census in the first Trump administration. These guys love having an idea and then trying to convince. The world that somebody else had the idea, and then of course it comes out because they’re both malevolent and incompetent. So I’m sure we’re going to learn a lot more about how this was actually something that Trump orchestrated from the beginning and then just like announced to the world, Cutter had an idea, it wants to give me a plane. Like, it’s just classic. It’s all like the first term, but so much.

 

Melissa Murray Well, I just want to give a shout out to our listeners who proposed these new nicknames. They’re absolutely great.

 

Leah Litman And it might be the case that you will have the opportunity to submit more nicknames because the president might not be content with just one plane from one foreign government. So we wanted to share with you this moment from a recent meeting between the president and President Ramaphosa of South Africa.

 

Clip I’m sorry, I don’t have a plane to give you.

 

Clip I wish you did, I’d take it. I would take it, if your country offered the United States Air Force a plan, I would take it

 

Leah Litman This was a horrifying meeting and episode, not just because the president made clear that emoluments are us, but also because the President was basically just reading talking points against racial equity and post-apartheid South Africa to the president of South Africa, seriously weird borderline conspiracy theories about white genocide stuff your weird uncle would read from an email that was forwarded to him. And by weird uncle I mean Sam Alito.

 

Kate Shaw I’m going to manifest something, but I feel like some of the defenses of, I mean these are ridiculous, but like some the discourse around Trump and this like absurd and corrupt plane exchange have noted that Air Force One, the one that’s currently in use, is a little run down and in need of repairs. And I just have to say that’s kind of actually true about the White House. Like it’s like the West Wing is actually not in the best shape? It like- The carpet’s a little frayed. Now, I don’t know if Trump goes to those parts of the White House, but, like, I want to know who’s going to offer him a new White House. And I’m scared I might just be manifesting that.

 

Melissa Murray The MyPillow guys, like I’m going to refurbish all the bedding in the White House. You know what? The linen is fine. We’re just basically going to get sponsors for the whole government, like brand sponsors. And the president will be the nation’s brand ambassador.

 

Leah Litman The White House has SponCon, who would have thought.

 

Melissa Murray That’s it.

 

Leah Litman When we come back, my conversation with Professor Noah Rosenblum.

 

Melissa Murray [AD]

 

Leah Litman And now, everyone’s favorite topic, the Supreme Court letting Donald Trump violate federal law. With me to discuss the latest entry into this anti-canon is Professor Noah Rosenblum, an associate professor of law at NYU, where he is also a faculty affiliate of the Department of History. Welcome to the show, Noah.

 

Noah Rosenblum Thank you for having me, I’m Leah.

 

Leah Litman So the Supreme Court issued this order and an opinion accompanying the order that could preview a pretty massive change in the law about independent agencies and presidential power. Before we get to what the Supreme court did, Noah, what is the case about in the sense, what did Trump do that was challenged?

 

Noah Rosenblum So this is what’s called a removal case. The question is whether or not the president has the power to fire certain people who work for the government. This case involves two firings. So one of the people he fired was a commissioner on the National Labor Relations Board. Another was a Commissioner on the Merit Service Protections Board. Obviously we can get into that if you want, but the key thing from a legal perspective is that both of these officers have removal protections. So the statute that created those boards put limits on the president’s ability to fire them. And that’s one of the major indicia of agency independence. When we say that an agency is independent, part of what we mean is that the people who run the agency can’t be fired by the president or sometimes anybody else, except for a very limited number of reasons. And Donald Trump explicitly disregarded those laws here.

 

Leah Litman Yeah, so he conceded he did not have the statutory qualifying reasons for firing them, fired them anyways. That was challenged. So the lower courts looked at this and said, yes, independent agencies are still a thing. There’s this case, Humphrey’s Executor, that had upheld removal restrictions on some commissioners there, the Federal Trade Commission. And as the Roberts Court has struck down other removal restrictions, as you were saying, restrictions on the president’s ability to fire people over the last few years, it has said… There’s still this exception for Humphrey’s executor cases, multi-member commissions of experts that are balanced and exercise quasi-legislative and quasi-judicial functions. So, Noah, the Supreme Court allowed Trump to fire the heads of multi-members commissions. How did it get around Humphreys executor?

 

Noah Rosenblum Exactly right. And I guess it just pretended that Humphrey’s executor didn’t exist. So the backstory here would just be that Donald Trump is not the first president to find it frustrating that the law doesn’t let him do whatever he wants. Back in 1935, Franklin Roosevelt found it frustrating too. And just as you were saying, when he tried to fire an FTC commissioner, the Supreme Court said, well, you can’t do that. And it used the technical language you were just using. In its latest order, the Supreme court, the order is incredibly short. In its latest order, the Supreme Court claims that it’s not ruling on the merits, but it does say that it is likely that the president will succeed in his challenge. And the only way that I can make sense of that is that the Supreme court has decided that even though Humphrey’s executor clearly says this is illegal, and it’s just worth flagging, Humphreys executor was reaffirmed a few years later in this other case called Weiner, which the Supreme courtroom also doesn’t talk about at all. But I guess the court has just decided that that law… Just doesn’t apply anymore.

 

Leah Litman Yeah, so I guess they just ghosted a 90-year-old precedent or maybe abandoned Humphrey’s executor. Humphreys executor, don’t know her, but.

 

Noah Rosenblum Very good.

 

Leah Litman Right, I try. I like that, I love it.

 

Noah Rosenblum Well, I’m just maybe to just drive home exactly how crazy it is that they’ve, I love the Humphreys executor don’t know, or what really drives that home is that as you were just suggesting A few years, there’s now been a series of cases in which the Roberts Court has struck down various laws that we thought were settled around removal. But in doing that, it always went out of its way to flag the Humphreys executor carve out. And one thing I was thinking about, and I’ve talked about with others, this is not, it’s inside baseball for me. It shows you how much of an amateur I am, but the Humpfries executor, carve out and reinterpretation that the Supreme court was going with. As far as I can tell, Brett Kavanaugh kind of came up with it. He might’ve stolen it from Akeel Amar, of all people, but he came up it at the D.C. Circuit in a different case. And then Roberts adopted it in sale of law. So you’ve got two people who really have just invented this except for the- the particular characterization of this exception, which I’m sure we’ll get into, making it into a special exception for multi-member commissions. So we know that Roberts and Kavanaugh have thought a lot about it, and so to watch them in this opinion just say, well, actually, nothing to see here, it’s pretty galling.

 

Leah Litman Yeah, so Justice Kagan characterized what the court was doing as favoring the president over our precedent, basically giving Donald Trump the ability to overrule by fiat, Humphrey’s executor, and expecting that the Supreme Court would just go along with him. And I think let’s talk a little bit about Humphreys executor now, because I think if the court ultimately rules for the president here as they signal they are going to. It’s either going to be by overruling Humphrey’s executor and this exception that they created, or they’re gonna narrow it to mean virtually nothing because they will define all agencies, except one, which we’ll get to, as agencies that exercise the kind of executive power that requires presidential removal and just say that wasn’t true of the FTC. When the court decided Humphrey’s executor and wasn’t true of the agency in Wiener, et cetera, et cetera. This would be, of course, an invention. But never mind that. So Noah, how would either overruling or narrowing beyond recognition Humphreys executor affect the administrative state and independent agencies?

 

Noah Rosenblum The biggest immediate consequence would be to eliminate any barrier to insulating agency heads from presidential removal. And presidential removal or the threat of presidential removal has always been taken as the hallmark for presidential control. Whether it actually operates that way is a more complicated question, but of course, because the Supreme Court doesn’t care about how government really works, it never addresses that. The logic is something like If I can fire you, then I can threaten to fire you. And so I can get you to do what I want by threatening to fire. So the thought would be that agencies that Congress had explicitly designed, and when I say Congress, I really mean Congress and the president, because it’s through statute, had explicitly design to be resistant to that very pressure, will now no longer be protected by that pressure. And the court will have concluded that as a matter of constitutional law, it is unconstitutional for any agency. With the exception of one, to be designed in such a way as to insulate them from that kind of presidential threatening. So just to hammer it all the way home, take these two agencies. So we’re talking about the National Labor Relations Board and the Merit Service Protections Board. The National Labor Relation Board is an agency that rules on labor disputes. It looks at unionization questions. And the way that it was set up is that you would have labor and management fight it out. And, but they would do so according to rules that everybody agreed on. Those rules had been embodied in the statutes that were passed at the height of the new deal. And the idea is that you shouldn’t have a president calling up an adjudicatory officer and say, you know what, I don’t like U.S. Steel. And so I want you to recognize the union just to screw them over and make their life harder. Or flip side, that union didn’t endorse me. And so, I want to you to decertify their union. Okay, that’s part of where the installation comes from. Fast forward, the Supreme Court is now saying, no, no, you can’t have that installation. In other words, it is appropriate for the president to call the head of the National Labor Relations Board, the commissioners, and say, you know what? Tesla, they’ve been really good to me. And so it would really be nice if you could just make sure their union doesn’t get certified. Or flip side, man, Elon Musk is getting on my nerves. I noticed there’s a union drive happening. Maybe you could take a little look at that and see if we can find a way to support them. Merit Service Protection Board gets us into issues I know you guys have talked about even more about civil service removal and independence. Exactly, and so it’s gonna be the same thing. The whole idea of the civil service reform laws in the 1970s that created the Merit Service Protection Board was to balance our need for an expert civil service with presidential responsiveness. And the thought was there are other tools for presidential control. So let’s make sure that the board that’s in charge of adjudicating whether or not people have been dismissed according to the law isn’t under the thumb of the president. And otherwise. We’re just gonna go back to the old school spoil system. Obviously the Trump administration is taking us to that spoil system world really quickly. And here the Supreme Court is giving them just a major assist.

 

Leah Litman Yeah, so maybe let’s talk a little bit about what the return of the spoils system would mean for presidential power. Because one of the things that was most striking to me about this decision is I think some people have wondered whether the court has buyer’s remorse about the immunity decision and the sweeping vision of presidential power that they adopted. But they just consented to a statutorily barred removal of commissioners and declined to enforce a federal law. That constrained the president. And as we are seeing, you know, Trump hosts these crypto dinners, go after schools like Harvard. How would the end of independent agencies in the sense of agencies that are insulated from presidential control and a spoils system, what would that mean for presidential power?

 

Noah Rosenblum I like the way you framed it. It is hard to imagine that this case shows that the court has any buyer’s remorse because this to my eye takes the government another major step toward a presidentially centered government. So the spoils system idea as it was practiced in the Jacksonian era was that when you won, you fired everybody who didn’t personally help you or in other ways show loyalty to you and your reward. For the people who had backed you was to give them well-paying government jobs and access to government power. And that was wonderful for political parties because it created a really strong incentive to give you money and to work for your re-election. And it was terrible for the American people because it meant that instead of having government done by professionals or by people motivated by public service, you had it done by hacks. And I’ll go one further. In a regulatory context, that kind of pay to play access is good for scammers and for people with shitty products, because the only way that you can get those through the regulators. Or, hypothetically, back in the 1930s, it was Pyramid Scheme stock corporations and public utility holding companies. Not that crypto holding companies have anything in common with that. Because if you’ve got a bad product, the way that you get it through regulators is by paying for access. If you’ve a good product, you don’t have to pay the regulators for access, so it creates a world of bad dupes. That’s kind of what we’re heading towards. Okay, so that’s why we got rid of it in the in the Jacksonian era but when you eliminate sites that are independent from presidential control, when you treat the entire government as if it’s an extension of the personality of the president, you invite a return to that kind of government order. So what are we going to get? Just a more extreme version of what we see now. I mean, as a small data point of how far we’ve gone in such a short amount of time, you’ll remember during the first Trump administration, when it came out that Trump had asked Comey for a pledge of loyalty, Everybody said, well, that’s crazy. You can’t do that. And in fact, the FBI had been structured in such a way, didn’t have removal protection, but the head of the FBI was a 10 year term. There was this norm of independence inside DOJ and we all recognized, yeah, it’s really important for there to be that kind of independence. Okay, the Merit Service Protection Board, the National Labor Relations Board, they were meant to be even more independent. The Department of Justice never had that statutory independence. If we all thought that it was important for the head of the FBA to be relatively independent. Well, how much more important is it when there’s a law that says this should be independent, that you should have that real independence, and here’s the Supreme Court saying, no, no. All of that is unconstitutional. It doesn’t matter if you think it’s a good idea or not. It’s unconstitution, except, of course, there’s one exception.

 

Leah Litman Yeah, OK. So it’s unconstitutional, and it’s unconstitutional based on their whole new theory of constitutional law and presidential power. But at the same time, they launched this whole new, theory. They had to make up a whole new exception to their new made-up theory, because their new made- up theory, newly pressed into the pages of the United States reports by some over-caffeinated Fed sock bros, has the potential to do a pretty bad thing, namely give. Donald Trump the power to fire the head of the Federal Reserve Board, control interest rates, and blow up the United States economy. So I have a love-hate relationship with this part of the order because it’s like this crank FedSoc theory gets released into the wild. They immediately have to say, OK, but not like that, and limit its consequences. So in Justice Kagan’s words, they create a bespoke exception and just declare that the Fed is different. It’s, quote, uniquely structured. And a quasi-private entity that follows a distinct historical tradition,” end quote. Those are words that are strung together. Not sure they are law, at least in the conventional sense, but who’s going to let that get in the way of a good time? So Noah, can you tell us a little bit about either the underlying theory they’ve made up and are declaring the law or this exception and what it is?

 

Noah Rosenblum So I can’t top Justice Kagan. It’s worth flagging that it’s doubly made up because if we go back to before sale of law, which was just a few years ago, the meaning of Humphrey’s executor was pretty clear. And it was that Congress could create offices that were insulated from presidential control. For the super nerds, we can distinguish between inferior officers and non-inferior officers. Non-inference officers enjoy a different set of protections. But Humphreys executor said, you can even have non-Inferior Officers protected from removal and that’s fine. Sailor Law was the first made-up case, just as you were suggesting, all made up, and so then that’s where Robert’s building on Kavanaugh created their first made up exception, which was no, no, Humphreys doesn’t mean that Congress and the president working together can pass a statute to create insulation. It actually means that multi-member agencies with staggered Can be independent of the president can have that removal protection and all of us read that and thought man This is a cockamamie made-up idea Nobody at the time thought that that’s what made that was the in that was they gage of Right for what? Gerrymandered to describe the court’s previous cases exactly right exactly right Okay, but and in fact at the I think it was gorsuch in in a concurrence Said I think thomas might have joined him said look We’ve basically turned Humphrey’s executor into dead letter at this point. Why don’t we overrule it? And in the majority of Kenyans- Let’s just do it and be like- That’s where we’re heading. It’s as as you’ve quipped before and rightly so this is you know vibes all the way and the vibe here is Presidential control and if that’s what you’re going for if your vision is democracy is presidential ism Well, then right the humphreys executor exception never made any sense or doesn’t make any sense But just as you suggested the real problem there is that it might give the president control over One particular multi-member board that rich conservatives want to make sure remains independent of the president which is the Federal Reserve. And the logic there is entirely functional. It’s that if you allow the president to control the central bank, maybe when it looks like the economy isn’t doing so well, he’ll do things that goose the economy short term for his reelection prospects, but hurt us long term. And we worry about that because in other countries where you don’t have that independence, this happens, you get inflation and the politics of inflation is a whole different story. My legal historian hat is like. Calling and I want to talk about the cross of gold in the 19th century, but putting that to the side Let’s just say that if you are a rich capital holder, that’s that’s bad. It’s not what you want. And so Fed independence is something that that were currently the common wisdom and I’m part of this is is committed to okay So what’s the exception? They’ve come up with to try to keep it separate. They were Suggesting this already a few years ago. I think Alito had a footnote where he said something about well, maybe the Fed is different And I believe this is coming from a paper by Erin Nielsen and Aditya Bhamzai, two law professors, where they have tried to suggest that there are historical reasons why the Fed is different. And it involves a bunch of different steps. The two big ones are trying to distinguish monetary policy from everything else the Fed does. And then the second is to suggest that there’s a history and tradition and constitutional status. To monetary policy, that means that it’s okay for that to be independent of direct presidential control. And I’m a poor law professor who just does legal history, but I’ll just say that as an intellectual historian of the law. Right. I am not high on this supply. As far as I am aware, there is no legal or historical pedigree for this argument. I could be wrong. I invite people to tell me I’m wrong. But until until Say La Wa came down, I don’t think this argument had ever been mooted or taken seriously. And if we could go back in time… And ask Nicholas Biddle and the other folks associated with these early institutions. First off, I mean, the first and second banks of the United States, I don’t think they have much in common with the Fed. But even if they did, even if those were going to be our presidents, we were like, hey, are you doing monetary policy? And does that mean that you should be independent of the president? I would love to just see the reaction.

 

Leah Litman Well, we shall see, perhaps. The bespoke Fed exception, the Justice Kagan turned a phrase, called to mind this magical moment from a case about the CFPB from last term, where the advocate just gratuitously threw in, in a case that wasn’t even about removal restrictions, oh, by the way, if slash when you overturn Humphrey’s executor, that wouldn’t apply to the Fed, generating one of the most iconic Justice Kagen lines of all time, which I will play now to relive.

 

Speaker 12 And it’s also why I think that if this Court were ever to take the step of overturning Humphrey’s executor, it likely wouldn’t impact the four-cause removal restrictions on the board itself. And I think it does reflect that historical tradition in the Fed of it not really exercising governmental power.

 

Noah Rosenblum Yeah, it’s just too important and whatever.

 

Leah Litman Noah, any final thoughts that are just too important or whatever to let slide?

 

Noah Rosenblum I guess the thing that I really wanna emphasize and the listeners to this show do not, they all know this, but maybe just to underscore, there might be good reasons for overturning Humphrey’s executor. There might be reasons for protecting the independence of the Federal Reserve, but it would be great if we could have an actual conversation about the good reasons and the bad reasons rather than have what are clearly made up fake reasons shoved down our throats and asked to believe that this is what’s really driving the court. And it is insulting to the American people to force us to go along with this charade. It’s being peed on and being told that we shouldn’t worry about it, because it’s raining.

 

Leah Litman Yeah, I mean, the reality is the court thinks there are good reasons for Congress to insulate the Fed from presidential control and doesn’t think there are good reasons or sufficiently good reasons for Congress insulate the MSPB or the NLRB. But those are just functional considerations. And if we want to have a debate about that, better, I think, to have it in Congress than the court, or if we’re going to have in the court at least acknowledge that’s what they’re doing. It’s just…

 

Noah Rosenblum Leah, that’s a shocking position. That’s like the way that the legal process school thought the law was supposed to work.

 

Leah Litman I know, you would think. Noah, thank you so much for joining me, a uniquely structured and quasi-private entity that follows a distinct historical tradition. Yes, I am describing myself here. And for joining the podcast, which is also a uniquely-structured and quasi private entity that follows a distinctive historical tradition, thank you.

 

Noah Rosenblum Delighted to be here, even as an inferior officer. Thank you, Leah.

 

Leah Litman Even as a Humphreys executor exception.

 

Noah Rosenblum Would that I could get my own bespoke exception.

 

Leah Litman Exactly. Listeners, we’re going to take one more break and then end on some lighter fare.

 

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Melissa Murray So, favorite things. Do you read anything, watch anything?

 

Kate Shaw Yeah, I did read some things, read some things, I’ll start. Well, you’re doing better than most of the administration. So good for you. I, for example, have read the majority opinion in Bothtalk. That is better than better than members of the federal judiciary. But no, this week, I want to mention a few things. So I think I’ve probably mentioned before on the podcast, I we now get the physical New York Times every day. I’ve gotten the weekend physical paper forever, but My husband and I started getting the paper daily, like a couple years ago, and I really like it, highly recommend it. But this is actually just like in the weekend book review section, but there was this Reading Your Way Around New York feature.

 

Melissa Murray I saw that.

 

Kate Shaw The reason I’m mentioning the physical paper is because I don’t exactly know how it was displayed on the website, but if you were actually paging through, it was just entries by all these different authors on New York City and just their favorite books about New York city or inspired by New York, and they’re just great, great authors and tons of books I actually haven’t read, and so it was an awesome reading list for New York literature I need to actually get up to speed on, some new and a lot that’s actually classic. I started Girl on Girl, which you guys both recommended, which is excellent. And I’m also slowly making my way through a novel I wanted to mention called Cahokia Jazz, which is this like noir novel, starts with a murder. It’s set in this like profoundly alternate version of the 1920s in the United States. And it’s like a very complex and amazingly imagined and rendered world, but also kind of confusing. And I am just reading like two pages at night. Sounds like our current world. I’ve just heard of- start over the next day. But it’s real escapist from our current world, which is actually what I most need right now in reading material, so I recommend it.

 

Leah Litman Something. So I read a few things. One is a piece on law dork, Chris Guidener’s substack, Matt Kacsmaryk shouldn’t be a judge. It was about the ruling that we were just discussing. I just needed that after reading the opinion, so I appreciated it. JVN, Jonathan Baden-Ness has a new book out co-authored with Julie Murphy called Let Them Stare. The book is JVN’s energy bottled up into a novel about a young teenager. It’s delightful. And yeah, so.

 

Kate Shaw Oh, I didn’t know it was a novel. Oh, that’s awesome.

 

Leah Litman Yeah, it’s a happy, joyful, just would definitely recommend, quick read. Another book I had been meaning to read last summer, but just got caught up in other things, Sarah Glass, Kissing Girls on Shabbat, a coming out memoir, really great, loved it. And then finally, Meredith Duran, The Duke of Shadows. I really needed more historical romance, and this was just terrific. Okay.

 

Melissa Murray All right, so here are my favorites of the week. I loved seeing Lawless, how the Supreme Court runs on conservative grievance, fringe theories, and bad vibes by someone you may know, Leah Litman, on the New York Times bestseller list. So congratulations, Leah. That is excellent. None of us are surprised by this, but we are nonetheless extraordinarily proud of you and happy for you. I also watch the Four Seasons on Netflix. This is Tina Fey’s reimagining of the 1981 movie Alan Alda and Carol Burnett. I actually saw the original movie at some point when it was on Amazon Prime. And it’s basically how I imagine middle age people lived for a very long time. So now that I am middle age, it’s nice that I can watch this. And it is very on point. I like the subtle changes that they made. I love Coleman Domingo in it and it’s it’s just fun. So mindless. Check it out. And this week, I read Matriarch by Ms. Tina Knowles, also known as Badass Teenie B. And I absolutely loved it. It is actually very, very feminist and sort of a meditation on how you kind of blend being a mother with like staying your own person. And I really, I really appreciated it. She doesn’t spill a ton of Beyoncé tea. So if you’re coming for that, you will be disappointed. But she does spill a lot of Tina Knowles tea. And that part I really appreciate, because she’s had a really interesting life. And then finally, I just wanted to say, and I know you all join me in this, congratulations to all of the law school graduates, especially those from NYU, the University of Pennsylvania, and the University Of Michigan law schools. You are graduating into a legal environment that is uncertain and one in which the rule of law is definitely under threat. But one thing is certain, you are enormously well equipped to make important changes. And you are urgently needed in this moment. So we salute you, we congratulate you, and we are cheering for you as you go forth.

 

Leah Litman Indeed here here. Just wanted to add an additional thank you that I know I said, I think two episodes ago, to the two of you, Melody, Michael, and all of the listeners for making the book possible and now a success. I was like out of my fucking mind when I saw, yeah, the bestseller list. I was on the phone with both Kate and Melissa, basically unable to utter words. Yeah.

 

Kate Shaw Leah usually is pretty good with the words, so it was maybe the first time I’ve ever seen you genuinely speechless.

 

Melissa Murray Props to the New York Times for rendering Leah Litman speechless.

 

Kate Shaw I shouted in a coffee shop when Leah called me and it was pretty- the people looked around me were a little alarmed I was like, it’s cool my friends on the bestseller list-

 

Leah Litman So yeah, I just wanted to say thanks.

 

Melissa Murray OK, let’s do some housekeeping before we get out of here. Guess what, folks? Project 2025 is no longer a warning. It is our grim, grim reality. Four months into Trump’s second term, Republicans have already begun executing their 900-plus page plan to transform America into a Christian nationalist state. And we are seeing it all unfold in real time. There are attacks on bodily autonomy. There have been the targeting of immigrants, the erasure of history. And cuts to millions of programs that we all rely on. On the latest episode of Assembly Required, Stacey Abram sits down with Atlantic staff writer, David A. Graham, who is the author of The Project, how Project 2025 is reshaping America, and they unpack the radical ideology that underlies Project 2025 and what we can do to fight back before it is too late. Tune in to that important conversation on Assembly Required- which is on YouTube or you can listen to it wherever you get your podcasts.

 

Leah Litman Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. We get audio support from Kyle Seglin and Charlotte Landes. Our music is by Eddie Cooper. Production support comes from Madeleine Herringer, Katie Long, and Ari Schwartz. Matt DeGroot is our head of production, and thanks to our digital team, Ben Hethcote and Joe Matoski. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. You can find us at youtube.com slash at Strict Scrutiny podcast. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast apps. You never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

 

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