In This Episode
Leah and Melissa break down what may be a new low for the Court: granting Alabama’s request to reinstate racially discriminatory voting maps. Then, they turn to the big questions: how dead is Trump’s slush fund for insurrectionists? Just how awful are Acting AG Todd Blanche and Acting DNI Bill Pulte? Will Michigan’s Democratic senators stand up to Trump’s appalling nominee for a seat on the U.S. District Court for the Eastern District of Michigan? They also cover three SCOTUS opinions from last week before Melissa speaks with Yale Law Professor Judith Resnik about her recent book, Impermissible Punishments: How Prison Became a Problem for Democracy.
Favorite things:
- Leah: Maria Collett’s speech to the PA Senate on LA v. Callais; Autocratic Judging, Rebecca L. Brown and Lee Epstein (UCLA Law Review); AOC for President, Megan Wachspress (Liberal Currents); A Shocking Betrayal of Black Americans, Mara Gay (NYT)
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- 6/20/26 – New York City
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Buy Melissa’s bestselling book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader
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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. I’m Melissa Murray.
Leah Litman And I’m Leah Litman. And it’s just us this week, which means let the wild rumpus begin.
Melissa Murray That is correct, folks. Without the tempering influence of Katherine Shaw, who knows what we two chaos goblins are going to get up to? Maybe, Leah, we will draft a concurrence saying that Section 2 of the Voting Rights Act doesn’t apply to redistricting claims or something crazy like
Leah Litman Wrong chaos goblins, Melissa. That’s Clarence and Neil. I think we would write a different concurrence. But fear not, listeners. We can assure you that this is going to be wild. And here’s what we have on tap. We’ll start with the news, including some updates on the slush fund. Then we’ll turn to the opinions that the court issued last week. And we’ll close with a dab of court culture, our favorite things. And an interview that Melissa did with Yale Law Professor Judith Resnick about her recent book, Impermissible Punishments, How Prisons Became a Problem for Democracy. And speaking of problems.
Melissa Murray Problems for democracy, we have some breaking news. Listeners, as you know, the court’s decision in Louisiana versus Callais nullified Section 2 of the Voting Rights Act, which had prohibited states from drawing districts that resulted in meaningfully less political and electoral power and political and electoral opportunities for minority voters. Basically, before Callais under Section 2, states could not effectively pack and crack the black electorate by consolidating them into a single district. And then diffusing the remainder across several districts when it was very possible to draw two or more nice, reasonably configured, pretty districts where Black voters could actually have political opportunities.
Leah Litman And in ending the prospect of minority opportunity districts, Callais insisted that it was merely making the Voting Rights Act closely track those cases where the Constitution itself would limit states redistricting. So the Constitution prohibits redistricting that is intentionally racially discriminatory and intentionally disadvantages black voters. Footnote. Or maybe it doesn’t, we’ll get to that in a second. But Callais said it wasn’t adopting an intentional discrimination requirement or rule, it was just limiting the Voting Rights Act to occasions that are likely intentional discrimination and give rise to an inference of intentional discrimination. And just to be clear, we’ve seen these ghouls run this play before in 2013 decision, Shelby County versus Holder, the nation’s leading institutionalist, John G. Roberts, assured us that even though he was eliminating the preclearance regime, There was no need to worry because section two remained in place and prohibited discrimination in voting. Now the court tells us we shouldn’t be alarmed that Callais gutted section two of the Voting Rights Act because the Votting Rights Act and the Constitution still prohibit intentional racial discrimination. Again, hold that thought for a second.
Melissa Murray In addition to trying to run the okey-doke on the whole country, a month after issuing the apostasy that is Callais, these ghouls decided that the last shards of law that prohibited intentional racial discrimination against Black voters was just too much equality to bear. And so this court granted Alabama’s request to reinstate a set of maps that a three-judge panel that included two Trump appointees. Had twice concluded was racially discriminatory. Let that settle in. Two Trump appointees twice looked at these maps and were like, yep, seems like racial discrimination to me. In any event, the court did so by requiring a showing of racial discrimination to establish a Section 2 violation. And then they made it virtually impossible to prove intentional racial discrimination. Basically, the lower court looked at this and said, yes, this map seems like it was drawn to fuck over black voters. And the court was like, well, can you really tell that they meant to fuck black voters? We’re not convinced.
Leah Litman That’s because racial progress. And also it’s so mean to call someone intentionally discriminating on the basis of race. But folks, here’s the thing. We know that these maps that the court blessed are in fact racially discriminatory because this same court told us they were. Back in, let’s think back to, I don’t know, three years ago, 2023, this court tell that a similar Alabama map, which included only a single Minority Opportunity District in a state where Black voters are more than 25% of the electorate likely violated Section 2, and Alabama said, you know what, let’s try that whole Massive Resistance thing again. It went so well for us in the mid-1900s. So it went back to the drawing board and drew another set of maps that also distributed Black voters across a bunch of white districts and contained only a single majority minority district.
Melissa Murray A very fast, rather secretive legislative process, nothing to see here, folks. It created yet another map that diffused black voters across several white districts and then included only a single minority opportunity district.
Leah Litman After Alabama instituted those maps, a lower court said, you can’t use them. They both violate the Voting Rights Act and their intentional racial discrimination and violation of the Constitution. Alabama immediately went up to the Supreme Court. This is back in 2023 and said, please daddy, let me use these discriminatory maps. And the Supreme court said no, they did not stay the lower federal court decision. And so that litigation continued to play out. And now, fast forward to… Callais. So after the Supreme Court decided Callais, it vacated the lower court opinions on the new but also old 2023 maps for inexplicable reasons. It told the lower court to reconsider the maps in view of its holding in Callais and on remand the lower court reconsidered the maps. In light of Callais came back and said, we said what we said and also we said, what you said in Calai, which is that the Constitution in the Voting Rights Act. Still prohibit intentional racial discrimination. And then the Supreme Court said, oops, backsees, unconstitutional racial discrimination is fine actually. In fact, intentional discrimination against black people might not violate the constitution at all. Again, this comes back to something we have been talking about since Rucho versus Common Cause. In many districts, especially in the South, partisan affiliation and race are closely correlated. In those districts, white voters are often Republican and black voters are likely to be Democrats. And what the court is saying basically is that if every single black person votes one way and every single white person votes the opposite way every election, that’s not even relevant to determining whether voting is racially polarized as long as or maybe especially as black voters are likely voting for a different political party than white voters. Like the court only sees this as states consolidating partisan advantage. But not like the obvious racial undertones of partisanship. I mean, there was a realignment between the two political parties based on race, like the passage of the Voting Rights Act and the Civil Rights Act. It literally lies underneath our entire.
Melissa Murray It is literally why we talked about massive resistance. Like massive resistance is why white people in the South are Republicans now, because they used to be Democrats. Yes. But Leah, what about the smoking gun of Alabama being hell bent on using a map that a court had twice determined was discriminatory? Well, according to the Supreme Court, the three-judge lower court panel, quote, interpreted the state’s legal disagreement with the court’s earlier remedial order. As proof of discriminatory animus. Y’all, legal disagreement is the new massive resistance. Basically, shorter SCOTUS, Alabama’s recalcitrance is not evidence of discriminator intent because Alabama correctly predicted that SCOTus didn’t really mean what it said in Milligan. And Alabama knew that SCotus would later recant and say that actually it’s not discrimination for a state to draw a map with only one majority minority district. Basically… Alabama is the Dionne Warwick of states, and it anticipated that what was racial discrimination before Callais would not be considered racial discrimination in Callais’s wake. And if you are marveling at Alabama’s clairvoyance, don’t. Anyone could have seen this coming with this court.
Leah Litman Yeah. Also, I would just like to note that all of my characterizations of Brett Kavanaugh’s intellect are just legal disagreement, and all of the cuss words I used to describe the justices are also just legal disagreements. So just for a note going forward. For when you next testify before Marcia Blackburn. Exactly. Oh, you mean my legal disagreement? Are you talking about my legal disagreement, ma’am? It’s a legal disagreement ma’ame. But the real crux of the court’s Tuesday night decision in Milligan is that it imported the Callais rule that had made it impossible to show a violation of the Voting Rights Act into the constitutional context. So Callais had said, you basically cannot show a violation of the voting rights act unless you can show that a state could have drawn a different set of maps that had the same partisan result. But more majority minority districts. That is if the state wanted five out of six districts to go Republican in order to establish a violation of the Voting Rights Act, plaintiffs would have to show that you could make one of those five districts that are all supposed to go republican, a majority minority district. Wait, wait, wait. Are we asking black people to vote for Republican? You are saying, right, black people only have rights under the Voting Rights Act if they vote Republican, like a minority district in which black people elect a Republican candidate is the only way to show a violations of the Voted Rights Act. That is a null set. There are no such cases. There aren’t no such districts. Given the correlation between race and partisan affiliation, there are no majority black districts that would elect a republican, probably because Republicans are doing racist stuff like trying to disenfranchise black voters. But I digress. It’s almost like black.
Melissa Murray Voters like to vote their interests. Almost. Now the court in Milligan, this is the new Milligan the one that was released just last week, comes along and says, in order to establish that this map with six out of seven Republican districts and one majority black district was intentionally discriminatory, you plaintiffs are going to have to show that the state could draw a map that also had six of its seven districts be Republican. While also having two of its seven districts be black. That is, again, to say what Leah is talking about. One of the black districts would have to be a Republican voting district. And again, that’s kind of a practical impossibility. A null set. It doesn’t exist. And because it doesn’t exists, you will never be able to prove intentional racial discrimination in order to satisfy the requirements for pleading under Section 2 of the Voting Rights Act, Unless, of course, black people in Alabama start voting for Republicans against their interests. So are you seeing why all of this is a trap? Do you see it?
Leah Litman I’m starting to get the picture. But just to put this starkly, I mean, look, the reasoning in Milligan is slapdash. We don’t know how far it extends and how much to take it for. But if one political party literally called itself the anti-black party, would that matter? Would you still say minority voters could only establish a violation of the Voting Rights Act and racial discrimination if they voted for the anti black party? Like, if the legislature came out and said… We are diluting the voting power of racial minority because we don’t like people who aren’t white. Like, would plaintiffs still have to show that the legislature could draw a map with the same partisan distribution? Like, it’s utterly unhinged.
Melissa Murray Just, again, to put this starkly. To put a finer point on what Leah is saying, they’ve actually ratcheted up what was already a very high bar to prove intentional discrimination to make it even higher, maybe even impossible. Literally nothing you could show would be sufficient to establish that the state was doing intentional racial discrimination. And they talk a lot in this opinion about the sort of presumption that the State is acting in good faith. Why would we presume that?
Leah Litman All of this? It’s very unclear. You know, the only real reason is because it’s mean to call someone a racist, and that’s way meaner than actually doing racist things, right, is a major through line in the court’s decisions. Yeah. So another inconsistent and unprincipled part of all of this is that the Callais Court insisted that it was not adopting an intentional discrimination requirement for the Voting Rights Act, even though it basically did. They told us they were So This is a little confusing, but again, if that’s right, like if Callais did not require plaintiffs to show intentional discrimination, and Callais said it wasn’t saying plaintiffs had to show intention discrimination, why on earth is the Supreme Court now in this Alabama case, invoking Callais to speak to a claim of intentional discrimination? There was admittedly a lot of doublespeak in Callais, like on one hand, the court said it was interpreting the Voting Rights Act to quote, focus. On intentional discrimination and to cases where there was, quote, an objective likelihood of an intentional discrimination. But it also said it was not adopting an intentional discrimination standard, acknowledging that its, quote, interpretation does not demand a finding of intentional discrimination and mocking the dissent for, quote stating over and over again that our decision requires a plaintiff to prove discriminatory intent. Well, and some of this doublespeak is in a footnote, literally. It’s all over the opinion. And even if, even if the court did own up to adopting an intentional discrimination standard for section 2, which they said they were not, that would still not resolve the claim at issue in Milligan because in Millican, the plaintiff’s also alleged the state had violated the Constitution’s prohibition on intentional discrimination. So I said this on a YouTube rapid reaction. I did with Duel Ross of the NAACP LDF and Rick Haasson, who’s a professor at UCLA. But this decision in the Alabama case was for me, the Supreme Court’s equivalent of the insurrectionist slush fund. Like Trump and carte blanche were saying, go ahead, insurrectionists, do a little insurrection, do some treason, overturn an election, we’ll legalize it, pay you for it. Here the Supreme court is saying, go ahead states, do unconstitutional racial discrimination. Like nullify the will of the voters. Lock out, you know, a third of the state from political power, will legalize it, will even tell you to go ahead and do it. It’s a legal regime for white supremacy and white minority like the 1776 fund was a slush fund for insurrectionists.
Melissa Murray And listeners, when everyone at the end of this term is praising the Supreme Court for rebuking the president and telling him that he cannot nullify the 14th Amendment’s guarantee of birthright citizenship, we want you to just remember that these are the same folks who just told states that they can nullify the Constitution’s prohibition on racial discrimination. So don’t give them credit for reading the Constitution because they don’t read all of it.
Leah Litman No, they do not. I miss Kate. And then yet in some ways, I’m glad she isn’t here to have to talk about this, given that I’m not sure she even expected the court to stoop this low.
Melissa Murray This would be hard for Kate. I think Kate might be in a fetal position on this one. It would challenge her desire to see the good, or at least the upside of everything.
Leah Litman It would.
Melissa Murray [AD].
Melissa Murray In what may be, listeners, a development that is entirely unrelated to the disenfranchisement of Black voters in the South, we would like to note that Texas Secretary of State Jane Nelson just announced her resignation, effective July 17, 2026. That is just four months before the upcoming election. No further details were provided about why Ms. Nelson was leaving at this moment or who would be her replacement. We should note, though, that Texas Governor Greg Abbott, i.e., are you there, God? It’s me, Greg Abbott, had appointed Nelson to the Secretary of State post in 2023. And he will be the one to name her replacement. It goes without saying that the Secretary of State is charged with administering the election. And this year’s election is especially consequential in the Lone Star State. Every statewide elected office is on the ballot this year, including a very anticipated Senate race between the state’s impeached attorney general, Ken Paxton, whose wife, incidentally, is divorcing him on biblical grounds. Just, that seems relevant. And James Tellerico, whom the president has continually derided on many different grounds, none of which seems to be accurate.
Leah Litman Last week, the Department of Justice announced it was abandoning the apostasy that was the slush fund for victims of lawfare, i.e. Insurrectionists. Apparently, Speaker of the House Mike Johnson might actually be good for something. It was widely reported, I know that was kind of a joke, it was reported that Johnson managed to convince his overlord, Donald Trump, to abandon the slush on the view that opposition to the slosh fund was mounting among Senate Republicans. Again, I have to insert here that sometimes it be’s your own people. But apparently, the furor over giving insurrectionists billions in taxpayer dollars was preventing the Senate from voting to give billions in taxpayer dollars to ICE and CBP to harass taxpayers. As Mick Jagger sang, you can’t always get what you want.
Melissa Murray Or can you?
But if you try sometimes.
Melissa Murray Sometimes, what you need and what you want may actually be the same thing, as we learned. Because last Tuesday, Auditioning Attorney General Todd Blanche, more on him in a moment, appeared before the House Appropriations subcommittee where he was pressed on the decision to leave the slush fund in a lockbox at a local fire station. And A.A.G. Blanche’s answers were, how do I say this, very revealing. Listeners! According to Blanche, although the administration is abandoning the slush fund, more on that in a minute, it is not actually jettisoning the part of the wink-wink settlement that insulates the president, his family, and their corporations from IRS audits. And to be very, very clear, Blanche stood 10 toes down on this. Hmm. Hmm. Some other interesting nuggets emerged in the Tuesday hearing. When pressed on whether he would commit in writing to rescinding the order to create the weaponization slash fund, Blanche refused. It seems like he learned what Leah and Stringer Bell have long advised. Listeners, you never take notes on a motherfucking criminal conspiracy.
Leah Litman Learned the opposite lesson because he put the motherfucking criminal conspiracy the slush fun in writing and now he’s refusing to put in writing the end of the criminal conspiracy maybe maybe Stringer Bell would counsel different advice there?
Melissa Murray I just like that he’s like, I’m not writing anything down right now. That becomes relevant. So instead of memorializing the end of the slush fund in writing, as many of the legislators were asking, Blanche simply assured the members of the subcommittee that he would abide by his word. So kind of a pinky promise between friends. I know I feel reassured, Leah. I don’t know about you. The most trustworthy guy in the country.
Leah Litman Or yeah, anyways. But the administration’s posture toward the slush fund is giving me real Allen versus Milligan energy back in 2023, when they were like, don’t worry, it’s all good, and then psych, right? They did the very thing we were all concerned about. Well, not all of us were concerned, but. OK, that’s fair. That’s fair, that some of us we’re concerned about, Also on Blanche’s. You know, whatever he is saying about the slush bun.
Melissa Murray I think he’s unwilling to be very clear about how he’s going to kill the slush fund with fire, right? I mean, he says he’s going to be killed at all. Yeah, he’s just like he’s abandoning it, but maybe he’ll come back to it. It’s hard to say. This isn’t like the First Amendment. This isn’t like the First Amendment.
Leah Litman Maybe there’s a difference between a band, exactly, overruling, you know, many different shades.
Melissa Murray Of things you can do. Exactly. I mean, this doesn’t seem like the First Amendment’s establishment clause where it’s just been abandoned and it really is going to be killed off with hot fire in some later decision.
Leah Litman No, it does not. And his posture toward the slush fund kind of tees up questions about what’s known as mootness doctrine. So mootiness doctrine is, again, set of rules about when federal courts can no longer hear cases because there’s no longer a live controversy or dispute. And as we’ve discussed, a number of lawsuits have been filed challenging the slosh fund. Now that the slish fund has been, quote, abandoned, wink, there are questions about whether those suits are now moot. Under Article 3, federal courts can only hear live cases or controversies when an underlying issue is moot, that is no longer a question to be resolved, case is no long reviewable in federal court. So here, the fact that the slush fund has been abandoned, wink, might suggest that any suits challenging it are now moot. But, and it’s a big but, there are a number of exceptions to the mootness doctrine. One of them is what’s known as voluntary cessation. Basically, where a litigant voluntarily ceases the conduct that gave rise to the lawsuit, it doesn’t necessarily mean the suit is automatically mooted. Instead, in a 2000 case, Friends of the Earth versus Laidlaw, the court said that the party claiming mootness had to show it is, quote, absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur, end quote. Not sure. That absolutely clear describes words coming out of auditioning attorney general carte blanche’s mouth. And the fact that he’s- Or the president. Wait, or the president and the fact that the auditioning Attorney General won’t even commit in writing to killing the slush fund might suggest that the slushe fund like a zombie could be resurrected under more favorable political conditions. Also doesn’t help that the president also unclear whether he is abandoning the sluhe fund. So maybe these lawsuits continue. Just to ensure that the slush fund is in fact, dead, dead, debt. Another reason why it might be wise for a court to weigh in is that it seems that the number three at DOJ thinks that the administration might try other means for providing reparations to January 6th insurrectionists, which again, they just call victims of lawfare. So Stanley Woodward retweeted something by Lindsey Graham talking about how Even though Senator Graham appreciated that the proposed weaponization fund wouldn’t be moving forward, he was, quote, still of the firm belief that there are many victims of the weaponized Biden Justice Department. And the number three at DOJ retweeted that and said,
Melissa Murray We’re on it. All of these developments are especially concerning given the legislative landscape. Now, as you may have heard, there’s been a lot of outcry from the Democratic caucus about the need to have codified limits on this proposed settlement, a codified end to this proposed sediment and the slush fund that it engenders. Well, guess what? Early Friday morning, the Senate passed legislation to fund President Trump’s immigration enforcement agencies. That was the. Basic compromise to kill the slush fund to allow the funding for ICE and CPB to go forward. And Democrats had wanted to include some guardrails in that package in order to keep the slosh fund from being resurrected or being used to pay insurrectionists. However, despite efforts to include amendments to the creation of the weaponization slush on, all of the proposed guardrails failed to secure the required 60 votes. Basically, despite broad concerns, a majority of Republican senators banded together to defeat multiple attempts by senators on both sides of the aisle to codify ending or changing the settlement fund. And when pressed about the lack of restrictions on the settlement in the final bill, Senate Majority Leader John Thune, remember him, noted that auditioning Attorney General Todd Blanche had already told lawmakers that the administration would not proceed with the fund. As Thune said, quote, I think what was talked about and then ultimately done away with is in my view, it’s a settled issue. Really sir. Well then.
Leah Litman I’m reassured Brett Kavanaugh, Neil Gorsuch, Amy Barrett and others described Roe as settled precedent because it’s also giving also giving me that.
Melissa Murray Does this mean that I get to play Susan Collins and tell the world that I have some concern?
Leah Litman Well, no, not yet. You are allowed to say, at this point, you believe them, they gave you promises, and then when they turn around to resurrect the slush fund, you can express some concerns. OK, that’s how I do with Susan Collins. Yes. Exactly. All right. And now we are back to auditioning Attorney General Todd Blanche, who might have been announced as the winner of America’s top attorney general. So one reason why Todd Blanche is assuring or might be assuring the Senators that he is 100% definitely against ever having an insurrectionist slush fund is that he might be halfway to the finish line and he needs these Senators on his side. So last week the President nominated Todd Blanche to be the nation’s top law enforcement official. That’s right folks. It seems that Wallace Sikofensky actually does pay off.
Melissa Murray But as is often the case, getting the nod from the president is really just the first hurdle. Blanche still has to clear the Senate confirmation process because the Constitution. And that may actually be quite contentious for Blanche since he does have a lot of Epstein baggage and he does have slush fund baggage. Basically, he’s got more baggage than United Airlines right now and he’s going to need all of the Republican votes. Which may explain why he is standing 10 toes down on definitely 100% killing this slush fund, though not in writing. It’s very hard to please two masters, y’all, but as you can probably tell, the ladies of strict scrutiny are rooting for Todd carte blanche.
Leah Litman And some late breaking news after we recorded. Auditioning Attorney General slash maybe America’s next top attorney general, Todd Blanch, decided to put something in writing. After even Republicans were pushing back on Blanch’s refusal to put anything in writing, the Department of Justice filed a brief in federal court arguing that a lawsuit challenging the slush fund was moved because the plans for the slosh fund had fizzled out. But the brief really went no further than Blanche’s testimony in that it put his non-denial denial in writing. The brief noted that the acting attorney general told Congress that although, quote, the reasons for the fund remain important, the fund is, quote not going forward, period. And it’s cited a YouTube clip of Blanche testimony to Congress. So there you have it folks, something in writing, and now back to our regularly recorded episode. Speaking of mediocre men getting promotions, now that Tulsi Gabbard has stepped down as the Director of National Intelligence, it’s time for another wholly unqualified person to take charge of our national security. And that person, his name is Bill.
Melissa Murray If Pulte’s name sounds familiar, it’s because he is the scion of Pulti Group, a residential home construction company. I first became familiar with Pultie Homes when I was living in California and I would see people twirling Pulties signs at busy intersections pointing the way to Pulty developments. You may also be familiar with Bill Pult because he has served as the head of the Housing Finance Agency and the Chairman of Fannie Mae and Freddie Mac since 2025. Obviously preparation for his new gig as the Director of National Intelligence.
Leah Litman And it was in that role that Pulte may be better known to stricties as the dude who referred New York Attorney General Letitia James to the Department of Justice for criminal prosecution, alleging James, quote, falsified bank documents and property records to acquire government-backed assistance and loans and more favorable loan terms, end quote. The accusation was James listed. Another residence she bought as a primary residence, when it was not in fact her primary residence. In July, 2025, Trump accused California Senator Adam Schiff of mortgage fraud, citing a memorandum from Fannie Mae sent to Pulte. Notably, the memorandums did not allege that Schiff committed mortgage fraud. Trump also called for Federal Reserve Board of Governors member Lisa Cook to resign after Pultes accused her of committing mortgage fraud days later, Trump stated that he had fired Cook for cause. Cook sued to contest her removal, and that case is currently pending at the Supreme Court. In perfect timing, last week, ProPublica reported that records show that, quote, Trump did the very thing he’s accusing his enemies of, which is to say that in 1993, Trump submitted mortgage applications for two different homes. And both applications indicate that the homes would be his principal residence. Those homes were in. Florida, but weirdly at the time, Trump lived in New York. Indeed, as ProPublica reports, it’s not even clear Trump ever even lived in the two Florida houses. It’s like Donald Trump wanted to do some mortgage fraud mocking on everybody else.
Melissa Murray This is all to say that Pulte seems to be exactly the right kind of sycophant to be in charge of national intelligence. Again, a reminder, the director of national intelligence is someone who has warrantless access to all of our communications. I know we’ll sleep better.
Leah Litman What could go wrong? And now, Melissa, I found a clip related to Bill Pulte that I wanted to get your reaction for and that I avoided sharing with you in advance of the episode. So this is real time and live.
Clip Here’s the first ever, man, live fucking dildo slap on the PP live. Pulte, look at this fucking thing. Alright. Come on! Harder, daddy! Alright, fine. There you fucking have it, the first dildos slap in history live. So, Bill, this says, Bill Pulte fucks! Alright? Thank you. And then if you notice on, it’s got a tramp stamp with a butterfly on the back. I like only the… One ass cheek set, yes, it does say, it does only the young on the back here. Only young December 14th. That looks pretty badass. We have a mushroom stamp on the head of it and a bed bath on one cheek and GME, oh fuck. GME on the other. I got too excited there.
Leah Litman Melissa. Greatest clip ever.
Melissa Murray What the fuck did I just watch?
Leah Litman You watched our new director of national intelligence.
Melissa Murray He was in the suit. He wasn’t getting slapped with it.
Leah Litman Yes, he was in suit. So he was not. So he was not actually getting slapped with the dildo.
Melissa Murray He was just observing it.
Leah Litman But he was on stage as a guy who was about to hand him an award that was, you know, carved with something like, fucks, only the young, watching that guy slap another man with dildo?
Melissa Murray I mean, I- I’m genuinely in shock. It takes a lot to shock me. What the fuck did I just watch?
Leah Litman I don’t know. I really don’t know.
Melissa Murray How did you find that? Who gave that to you?
Leah Litman The Interwebs. I found it on the interwebs, and I sent it to Michael.
Melissa Murray Did you find it in the manosphere? Because that seems like it was made by the manospheres.
Leah Litman So I have been doing a little research into the Manosphere for a potential project I might be working on. Put a pin in that and yeah.
Melissa Murray Do you shower after the research? Because I genuinely feel like I have to clean myself.
Leah Litman I’ve been showering multiple times a day. Seriously no joke.
Melissa Murray Like, oh my god, I just genuinely, I don’t even know what to say. Thank you for not sharing that with me in advance. I don’t even know what to say.
Melissa Murray [AD].
Melissa Murray It’s time for the opinions we got last week from the court. Speaking of dildos across the face.
Leah Litman Dildos, deal-dos and Supreme Court opinions. So we got three opinions from the court last Thursday. One of them was Hikma Pharmaceuticals versus Amarin. This case concerns a dispute between a generic pharmaceutical manufacturer, Hikmah, whose product can be dispensed for uses that both do and do not infringe on patents. So Amarin, which holds patents on uses of the branded pharmaceutical, Vaskepa, a medication for which Hicma’s product is a substitute filed suit to hold Hicmah responsible. When pharmacists dispense Hicma’s generic product for uses that don’t infringe on its patents, but Amarin alleged, Hicama was kind of elbowing people, giving them the nudge to use the generic product for patented uses. So at oral argument, the justices had seemed skeptical that Hicima, the generic manufacturer, was doing anything to compel pharmacists to dispense the generic for uses that infringed upon the patents. The justices seem skeptical of holding someone liable for someone else’s conduct, and that skepticism bore out in the opinion. The court with Justice Jackson writing for the majority said that Amarin did not establish that HICMA, the generic drug manufacturer, was actively trying to get people to use the drug in ways that would infringe Amarin’s patent. The case was remanded to the lower court where Amarin can try again to make out its claim.
Melissa Murray We also got an opinion in Streetpatch versus SEC. This case pitted the conservative supermajority’s antipathy for the administrative state and financial regulation against its antipathy for criminals. In a unanimous opinion written by Justice Gorsuch, the court held that the SEC can recover money that companies and individuals gained illegally, even if the agency cannot prove that investors suffered a financial loss. Writing for the court. Justice Gorsuch explained that, quote, a showing of pecuniary loss is not required before an investor may qualify as a victim of an offender’s wrongdoing entitled to compensation. We noted that this was a unanimous opinion. But as is his want, Justice Thomas would have gone further, which means it’s time for another we need to talk about Justice Clarence Thomas segment. In a separate concurrence that nobody joined… Justice Thomas suggested that there might be a Seventh Amendment problem when the SEC seeks disgorgement in proceedings within the agency’s adjudicative structure, and that disgorgements cases may have to go to federal court and be heard before a jury. Now, as is often the case with Justice Thomas’s concurrences, this is an invitation to litigants to now challenge discouragement proceedings on Seventh amendment grounds. Basically, Jarkus-y only make it Disgorgement.
Leah Litman Is it unconstitutional to send invitations to have a party, Melissa? I don’t understand the problem. Not if the party is to completely rewrite the Seventh Amendment. Exactly. Speaking of the Seventh Amendment and needing to talk about Clarence Thomas, the court issued a surprisingly sane-ish decision on agency’s adjudicative authority in FCC versus AT&T. There, eight members of the court, no points for guessing which cheese stood alone here, said that the FCC could impose what are called forfeiture orders within the agency’s own adjudicated structure and therefore without a jury. The Supreme Court said these forfeiture orders did not definitively resolve the party’s legal obligations or even definitively settle factual matters and that before the agency can make a party pay, the statute requires the agency to go to court and prove the case to a jury. While it’s heartening that the court didn’t go full throttle against the agency, I think it’s important to note that the agency ended up kind of obeying in advance, conceding to some limits on its powers to avoid a Seventh Amendment problem. And this decision could also mean companies feel emboldened to give the agency, FCC, a harder time in, say, settlement talks by threatening to drag out proceedings and go to court. There’s also language in the opinion that might call into question agency fact-finding. So just some notes. We do, again, need to talk about Clarence Thomas, who dissented. The cheese stands alone. He said that because the companies paid under the understanding that forfeiture orders did definitively determine their rights, the case required some additional proceedings and relitigation. Based on the understanding that actually they were not so required.
Melissa Murray Hmm. All right. Do a little court culture. So folks, do you remember District Court Judge Jeb Boesberg, who tried to enforce the rule of law in the face of the administration’s recalcitrants that earned him brickbats from the president, as well as an effort to impeach him from his judgeship? Well, guess what? Far from cowering, Boesburg decided to step up to the podium at Yale Law School’s commencement to exhort the graduates to stand 10 toes down on the rule of law. And their own principles. Take a listen.
Clip The legal profession faces a pivotal moment, one that tests not just how lawyers practice, but the institutions they serve. More than ever before, our news headlines feature lawyers in both the private and public sectors and the cases they are litigating. So when you decide where you will lend your talents, make sure to take a close look at your selected institution and ask yourself whether its principles and its values align with your own. For private practice, do you actually believe in the mission of the firm of which you are a member? For those entering the public or nonprofit sector, how comfortable are you with the priorities this entity espouses? Ask yourself if these are the missions you are proud to stand up in court to support. Now do not mistake my message. There are very few jobs in which you will always believe that every client you represent has the better of the case or the moral high ground. If you were to quit the moment you didn’t believe your client deserve to win. You wouldn’t hold many jobs for long. When you are representing a public entity, for example, a municipality, a state, or the federal government, there’s a meaningful difference between isolated disagreements with your client and helping to defend policies that are wholly antithetical to your core values. I encourage all of you to have your own red line. Each of you will put it in a different place. But if you are asked to cross that red line, you must decide whether you can do so and still look at yourself in the mirror or whether it’s time to start searching for a new job.
Melissa Murray Word up.
Leah Litman Yeah. Speaking of standing ten toes down on the rule of law, the D.C. Circuit concluded that the ban on transgender service members is unconstitutional discrimination. Procedural note, the Supreme Court had earlier stayed a district court order in the case that had also concluded that the ban of transgender service was illegal. And so as a result of this D. C. Circuit decision, this is going to put the case on the Supreme Court’s regular docket. So the DC Circuit wrote that the case, in part, came down to whether, quote, we are going to fall for the old Groucho Marx line. Who are you going to believe? Me or your lying eyes, given that there was, quote direct evidence that animus motivated, end quote, the ban on transgender service members.
Melissa Murray Now, this is a welcome instance of a court being willing to call BS on the administration’s pretextual rationales, something that the Supreme Court has been loathe to do, even when it has ruled against the administration. We should also note that the DC circuit did limit the scope of the district court’s injunction such that only current trans service members are protected. The injunction does not apply to aspiring service members, at least during the pendency of the litigation, because this was a preliminary injunction.
Leah Litman Circuit used the Supreme Court’s lack of explanation against it saying that they didn’t know why the Supreme Court had stayed the district court order and maybe it was because they disagreed about the scope of the remedy. So this again almost certainly tees up the case to go back to the Supreme Court but on its regular argued docket. One final piece of court culture which is I wanted to highlight something that is happening in my home state of Michigan. Which is supposedly represented by two Democratic senators. So in May, the president nominated one, Michael Martin, the criminal chief for the U.S. Attorney’s Office for a district in Michigan to a district court judgeship here in Michigan. And we are apparently still waiting to learn whether our esteemed senators, again, both of whom are ostensibly Democrats, Senator Alyssa Slotkin and Gary Peters, will return a blue slip on Martin and allow Martin to get a confirmation vote, which would almost certainly result in his confirmation. Or whether they will instead deny a blue slip, which would block Martin’s confirmation. Putting aside general issues with returning a blue-slip given current conditions, doing so for Michael Martin would be astonishing, appalling, a perfect example of why Democrats hate the Democratic Party. Let me elaborate for a bit. So while Martin was head of the criminal office, two esteemed career prosecutors were fired from the office. Seemingly because those prosecutors had the audacity to enforce a federal law, the Freedom of Access to Clinic Entrances, or FACE Act, which prevents threats of force or intimidation against reproductive care facilities. As head of the office, Martin almost certainly would have had to sign off on those firings and removals. Also, even though Martin is a US attorney in Michigan, he may also have been involved in the vindictive prosecutions arising out of Operation Metro Surge in Minnesota, and the killings of Renee Good and Alex Preti, the investigations related to those as well. So remember, there was a mass exodus of US attorneys from the US Attorney’s Office in Minnesota because the Department of Justice was reportedly investigating Renee Good’s rather than the immigration officer who shot good. And while the principled US attorneys in Minnesota refused to go along with these cases, there’s some evidence that Martin may have volunteered to step in. Specifically, at least one case against a Minneapolis protester was filed in the district where Martin is the criminal chief. Again, given that he is the chief there and that the case was filed by an assistant U.S. Attorney who reports to him. Seem somewhat likely that Martin would have had to sign off on what many view as the politically motivated prosecution and persecution of protestors. Democratic Senators, if you are returning blue slips on a guy who may have fired people for enforcing the FACE Act and may have jumped in to facilitate the administration’s efforts to terrorize Minnesota and its people after the administration actions in Minnesota prompted mass resignations of federal government lawyers. What are you even doing? Democrats don’t have a ton of power right now, but blue slips are one area where they do. Grow a spine, grow up, do something. I have called your offices and now I am blowing this up on my podcast because this is my right. And now be sure to stay tuned for a great conversation that Melissa had with Judith Resnik about her recent book.
Melissa Murray [AD].
All right, shifting gears for a moment. As we’ve discussed in prior episodes, there have been a couple of cases on the merit stock at this year that concern the rights of prisoners and the administration of correctional facilities. In November, for example, the court heard oral argument in Lander versus Louisiana Department of Corrections and Public Safety. That was a case that considered whether a government official can be sued in his individual capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act of 2000, also known as Ralupa. We’re still awaiting a decision in that case, but the court has actually heard and decided to other cases about habeas relief for prisoners, Klein and Bowe. In addition to what’s been going on at 1 1st Street, we also have an administration that has also had prisons on the brain. This administration has been unceremoniously sending people to foreign prisons and building prison-style immigration detention centers all throughout the United States. All of this suggests that this might be an especially opportune moment for us to consider prisons, prisoners’ rights, and our approach to punishment. And today we have the perfect guest to help us do just that. Judith Resnik is the Arthur Lyman Professor of Law at Yale Law School and the founding director of the Arthur-Lyman Center for Public Interest Law. She is a prolific scholar, and her research interests are truly wide-ranging, everything from procedure and federal courts to equality and citizenship. And at the intersection of all of these topics is her interests in prisons. She’s one of the nation’s leading experts on prisons, prisoners’ rights, and carceral conditions. And she is the author of a recently published book, Impermissible Punishments, How Prison Became a Problem for Democracy. Judith, welcome to Strict Scrutiny.
Judith Resnik Delighted to be here.
Melissa Murray This book is a very heavy book. The book is sweeping, it is historical, and it begins in Arkansas. As you explain, Winston Talley, who was an Arkansas prisoner, made at the time a radical claim that he and other incarcerated men were being whipped, and their whippings were actually in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. Can you tell us more about the Talley lawsuit and what happened at each stage of the litigation?
Judith Resnik As far as I know, he was convicted of very low level crimes, not part of a political social movement, but he had an idea that makes, that we need to understand he’s a significant theorist of prisoners, of rights in general. So if I just back up for a minute, enlightenment era, the enlightenment interruption was, excuse me, monarchs, you can’t just be arbitrary, you need to be purposeful. These people, these Enlightenment thinkers. These great men. Brought us to a contemporary world in which it is accepted that punishment is supposed to be purposeful. What Winston Talley adds to this understanding is, while you may punish me, deterrence or retribution, you can’t punish me like this. And he asserts the idea that he’s a rights bearing member of this polity and saying, you, the corrections establishment, you, state of Arkansas, are limited. Yes, you can punish me, but you can’t whip me.
Melissa Murray All right, so there’s a lot going on here, and I think it’s great that you’re connecting it to the past and the theories of punishment that many of our 1L listeners will be familiar with, retribution, utilitarianism. The government just can’t punish people. There has to be a reason for it. This is one of the principles of limited government on the very basis of democracy. Winston Talley, who I think under most circumstances would have been understood as someone who is civilly dead because he has been in prison. Is actually saying, I’m not civilly dead, I may be incapacitated for this purpose, but I have rights that you are obliged to recognize. And one of those rights means that you cannot punish me using an impermissible punishment. And to his mind, the whipping violates the Eighth Amendment’s prohibition on cruel and unusual punishment. What does the court say?
Judith Resnik First, again, thanks the judge, let the guy in. Second, appoint a lawyer. Third, no retaliation. Fourth, sorry. The Eighth Amendment doesn’t rule out whipping because we defer to correctional officials. And furthermore, Delaware whips, other places whip. It’s not cruel and unusual punishment.
Melissa Murray So this is in the 1960s. Delaware is whipping?
Judith Resnik Well, Delaware has a statute that permits it. It’s 1965 and the judge says, it’s only not cruel and unusual punishment if it’s limited to no more than 10 lashes at a time. If it’s based on a list of factors that you, the prisoner, know in advance, if you violate this, you could get whipped, and if the decision is made, not by the person who’s lashing you at the moment, but by some administrators. Okay. And the next step… Is, well actually two steps. First is one might assume, because it’s perfectly appropriate to assume, that enslavement and whipping are intermeshed and therefore that Winston Talley was a black man. Winston Tally was a white man. Winston Tully and a whole group of other white men and lots of black men were mercilessly whipped in the Arkansas system for not working as they were told or other things. Not picking enough cotton. Not picking or not in subordination or whatever. A couple years later, three more white guys, William Jackson being one of them, go back to prison and they say, actually those rules aren’t being obeyed, plus you shouldn’t whip us at all. The judges again say, great lawyers, Arkansas, step up. There’s a three-day trial, and you can, if you want to look at the URL, read the 640 pages, of the transcript of the trial. And federal judges here, people who are the staff in Arkansas saying We were raised by the whip. We whip our children. This is what we do. And second, they also heard the person who was the former head of the Bureau of Prisons Of the U.S. Saying whipping is medieval and actually out of bounds. And they also hear from many prisoners the brutal, horrible intrusions on their bodies. Somebody pulls down their pants, shows the injuries, and the judges say it’s not cruel and unusual punishment. You can whip if, and again with these limits, as a matter of Eighth Amendment law. Not procedural due process, But it’s only not cruel and unusual if… You whip within these constraints.
Melissa Murray So this is sort of interesting, and it reminds me of the NAACP Legal Defense Fund’s strategy for dismantling Plessy versus Ferguson. They don’t start with Brown, like this is just per se unconstitutional. They argue first that separate but equal has standards. It actually has to be equal if it’s separate. So the initial litigation that ultimately culminates in Brown starts off as just trying to hold the South to account. You don’t actually have equal facilities. They’re separate, yes, but they’re not equal. And this almost seems like what the courts are doing here. We’ve set out these standards for what constitutes appropriate whipping in the context of prison, and you’re not doing this. We have all of this evidence that you’re quite not doing it.
Judith Resnik Yes and no. First of all, these prisoners are one-offs. They’re not part. The ACLU will come in. The judge is all treated as if it’s a class action. It’s going to apply to everybody, white and black in the facility. But the lawyers who represent them are the head of the commercial bar, of the bar association. They’re no civil rights lawyers. They are not the ACLU or the ink fund at this time. More will come. But the way to appreciate what the judges are doing is they may well have thought that because they put these constraints on it, and it’s a hugely public read every day, the Arkansas Gazette and the Arkansas Democrat, that the executive branch would, in fact, stop whipping. Which it kind of- A deterrent effect. Well, both deterrent and also we don’t, we, vulnerable Arkansas federal judges, don’t need to spend our political capital because it’s gonna end. We spent our political capitol by putting it all in front of you, as vividly as we could. Yeah. And. They are sort of right, because there’s a move to stop it executively, but sort of wrong, because it keeps going on. And then in 1968, when Judge Harry Blackmon, before he became Justice Harry Blackman, was sitting on the Eighth Circuit, he wrote the opinion, which he called the Whipping Case, for the three judges saying, you can’t whip. It violates the Eightth Amendment. You’re out.
Melissa Murray Okay, so Harry Blackmun, as a judge of the Eighth Circuit, which is the appellate tribunal that hears the appeal from one of these Arkansas lawsuits.
Judith Resnik Arkansas is the only former Confederate state that is in the Eighth Circuit. And the Congress did that on purpose, stuck this state in.
Melissa Murray Fed courts everywhere, it’s like it’s all here.
Judith Resnik Stuck it in to get northern control.
Melissa Murray Over Arkansas. All right, so Harry Blackman is like, okay, we’re done with the whipping. There’s no standard for whipping. Whipping is per se an impermissible punishment. And you argue that that decision reflects what you call an anti-ruination principle, this idea that impermissable punishments are those that ruin the person. And you’re not just talking about physical ruin, but just the dignity of the person, the mind and body and spirit of the person, and that whipping is one of these punishments that utterly ruins a person, and the government cannot do that. They can do a lot of things to punish you, but they can’t do that.”
Judith Resnik Blackman is taking out, for the first time in U.S. History, a punishment that is justified as discipline, as in making you do the discipline of the work and the routine. First time ever across the board for anybody in the Arkansas system. But he is not prepared to say, I’m gonna give you a grand theory of the limits on punishment. I’m just gonna say this one’s out and I’m going to distinguish it from some of the other stuff which you can do. By the way, he mentions voting disenfranchisement. As something that, of course, you could be able to do. The district judge who had first appointed the lawyer in 65 sits and presides over civil rights indictments criminal by the Nixon administration of prison staff that is brutalizing these people in ways I don’t even want to talk about, and then those juries acquit in Arkansas. And in 1970, this district judge says, the entire system of Arkansas’s prisons. Is cruel and unusual. It’s an evil and dark world and it’s unconstitutional. So within five years of opening up and listening to the grotesqueries inside the system, a federal trial judge says you have to stop the system and for the next 14 years they’re debating what that means. So the cusp of the question is between once prisoners are rights holders and persons, not civilly dead, what does it mean to be a rights holder in prison. And what are the limits? What are the permissible and what are the impermissible? And then I say, if you try to look at the way the law is groping toward and some other legal systems are, what we should understand is in a democratic order, you can’t set out to ruin people. And so you can deter, you may be able to fascinate, you can be mad and retribute if you want. You can’t use things that take people down and out.
Melissa Murray All right, so the anti-ruination principle is your invention and you use it to sort of render legible what the courts are doing during this period where they are invalidating the use of whipping in the Arkansas prison, they’re invalidating the Arkansas Prison system as utterly cruel and unusual and inconsistent with the Eighth Amendment. And in your view, what undergirds all of this is this idea that this is a system that is meant to ruin people. It goes beyond simply deterring other people from doing crime. It goes beyond incapacitation, it goes beyond retribution. It’s about ruining people. And in a democracy, that can’t be what the government does. So I wanna focus on this anti-ruination principle because you’ve talked about it in the book, in the context of the Eighth Amendment, but one might argue that shards or glimmers of the anti-runaion principle are evident throughout constitutional law and maybe even in just the whole idea. Of limited government. So in Planned Parenthood versus Casey, which is the very famous abortion case from 1992, the court talks about the impact of a forced pregnancy on the life of someone who is forced to bring a child into the world against her will. And they talk about the idea, like it fundamentally changes your life. It might even ruin your life, so I think we might see a glimpse of the anti-ruination principle there and. A decision as momentous as whether or not to become a parent cannot be one made under the compulsion of the state. In a similar way, we might see evidence of the anti-ruination principle in just the fact that the Constitution itself is about designing limits on the state, have we moved away from an anti-rumination principle not just in the context of the Eighth Amendment but in the contexts of our government and what we understand to be limited government?
Judith Resnik So. Prisoners, suffragettes in the English system in the 1920s, say rights. When the world of rightslessness, it’s after World War I that a group of people in England, a wonderful group of women feminists, were bringing to the fore the need for an international convention for rights for prisoners because prison could be torture and you had to treat every person in detention political or not. The same, and they proposed a standard set of rules that this international organization took over but didn’t embrace. This is the IPC. This is International Penal Penitentiary Commission, and it agrees to draft rules that it promulgates, that the League of Nations promulgate in 1934. In 1934, Hitler’s took Germany in 1933. So, and this organization meets in 1935 in Berlin. Where they hear how great Hitler’s eugenics system is. The idea that you wanna say, this goes to your general idea, that limit on government power, and we also have to talk about obligations of government to provide. Okay, we’ll get to that in a minute, yeah. But limits on government, power, fear of arbitrariness. Prison is the oor place where you have sovereignty encompassing you.
Melissa Murray And arbitrariness.
Judith Resnik And terrifying power. And it is at 1950 when this International Penal Penitentiary Commission is about to close its doors, that it has its final meeting at The Hague, and a man who had run the Belgian prison system speaks. He’d been briefly interred by the Nazis. And he says, prison will be seen as primitive as corporal punishment because of its radical intrusion on autonomy. Mm-hmm. Somebody who’s been in terror is now speaking to that experience even though he’s been a prison official. So if we’re looking at the idea of both obligation and constraint, government can do something to you if you’ve done something wrong. But let me also get to this idea of it should be the government can’t set out to ruin you no matter who you are, whether we call it punishment or not. So if I’m in detention, because you’re a migrant, if I’m trying to take you off the streets because I think I should be taking people off the street, whether I’ve convicted you or not, the insight is you can’t take people down or out because we’re all equals in this democratic order. And that’s a stumbling block. It makes it harder for punishment. Taking on the burden of putting someone under your care and supervision is a burden that you should do as little as possible because it’s a huge amount of activity. Jeremy Bentham said some people begrudge giving prisoners anything, and other people bemoan that they don’t have things. And what he’s got is the emotions that attach. When somebody’s done something wrong, storm the Capitol, if you want that as an example, or- Just off the top of your head. How do you express the wrongness of that, and at the same time, don’t you begrudge giving those people something because they did something so bad? So there is Bentham’s emotive analysis of the complication of punishment, which is that it’s a reciprocal relationship in which now in a democratic order you have to recognize the equality of the person, and it’s also hard, and we shouldn’t not catch our breath to say it’s both a burden in the logistics, it’s always a burden emotionally because you have mixed emotions about giving to people who’ve done something really bad. All right, so.
Melissa Murray Just pardon them. I’ve heard that’s been done. Separately, the point about reciprocal obligation is really important here. So you note that one of the things that’s unusual about punishment, maybe even particular about punishment in the American style, is that this prisoner now becomes a ward of the state, almost, is under the care of the State and indeed becomes dependent and reliant on the State for care. And in your view, that engenders certain obligations, affirmative obligations on the part of the that me. Continue even after the period of imprisonment? So what are the obligations of a democratic society to the people that are imprisoned, both while they are confined and then when they are…
Judith Resnik So, we’ll get you right back to constitutional law and strict scrutiny, because here we are with the U.S. Supreme Court saying in 1976, if you incarcerate someone, you have to give them health care. You can’t be deliberately indifferent to known medical needs, because that’s cruel and unusual punishment. They could have said that violates their liberty, and of course the answer is it’s both cruel and unusual, and it violates the liberty. So the idea is that one of the rare pods… Of affirmative government obligation is health care of some form, however limited it might be, because you have incarcerated. Footnote, Jeremy Bentham said in the Panopticon contract, we got to give them health care, we got give them food, we can’t kill them, we’ve got to keep them safe. In fact, we want to incentivize that they want to go work. So we’re all in on that. So there are affirmative obligations, one way to read food, clothing, the 1.5 million person housing project called incarceration. Is you are provisioning, sadly provisioning for people who should be not incarcerated, as well as for whatever number you think should be punished in some way or other. But you are in the middle of a burdensome relationship that as a matter of constitutional law, statutory, take care law, and moral obligation is to take care of the people who are in your care and custody. Now then the question is, what does that mean? And one of the purposes of the book is to show you. What an incredible construct prison is. There’s nothing normal about it. It’s a group of people who sit in fancy European capitals and rationalize sets of radical control over people. And so you could be incarcerated and wear your own clothes. You could be incarcerated, and if you’re in Italy with its Constitutional Court, cook, because you have a right to cook, because normal people cook. So the sort of what’s the normal? Is what we make normal, and once whipping was normal. So of course the reason to start with whipping is to get people’s attention to say, wait a second, how can I help you see how utterly abnormal the practices of prison are? The idea.
Melissa Murray That these carceral conditions are entirely socially constructed, like we do this.
Judith Resnik Invent solitary confinement, invent whipping, and use whipping for this. You didn’t invent it, but you applied it in this way, but you did invent the incarceration state, and there are different versions of it. It’s not the only one. And then the question is, is it doing anything that’s okay? And the answer in terms of ruin is, let’s talk about the staff. Mental illness, physical illness, blood pressure, high suicide. The prison is a toxic environment for people who live there, whether it’s four hours, 14 hours, 28 hours, in whatever period of time. People are not doing well in a metal, concrete, noisy, dirty environment in which high security is apparently everywhere, but everybody’s really insecure, because it’s really scary.
Melissa Murray How do we think about the relationship between prisons, this anti-ruination principle, and the idea of limited government and where we are right now as a democracy? And like, I’ll be very bald about it. Many people think we are on the precipice of no longer being a democracy. How does our approach to prisons reflect that precarity?
Judith Resnik One way to respond is to say, there’s been the conceit that whatever you do to prisoners is different because they’re prisoners. We’re watching a federal government being willing to order the murders of people in boats offshore, to grab people off streets. So the continuity of treatment, which comes back to your leitmotif of limited lawful government, it’s not just limited government, it’s lawful governments. And so, if you’re looking… The treatment of the people inside and the treatment of people outside, if they’re pushed aside as the people who could be subjected to horrible treatment, is ungodly, terrifyingly comparable. And so therefore, the joint project is to reject those forms of treatment in or outside. And one of the things, you know, Europe is validated as, oh, look at Europe, they do better. What they do better is provide social services inside and out, coming back to health care in prison. And annoying how come they get it and I’m not in prison and I don’t get it the answer in many european countries is everybody gets it and some education so i’m not giving prisoners more than i’m giving other people i’m treating people the same and of course the purpose of this concern is the ruin isn’t just of the person but of the body politic.
Melissa Murray It’s a really terrific point. The book is called Impervisible Punishments, How Prison Became a Problem for Democracy. The author is the indomitable Judith Resnik, a fantastic scholar, a really incredible thinker, and someone who has made the question of prisons accessible and, again, just urgent for this particular moment. Thank you.
Judith Resnik Thanks.
Leah Litman And now for our favorite things. One of my favorite things are elected officials who hold political power actually standing up for democracy and doing the right thing. And so I wanted to highlight a speech by Pennsylvania State Senator Maria Collette who gave a speech to the Pennsylvania Senate on Louisiana versus Callais. Very, I think, important that, again, officials are not letting this one go and speaking to their colleagues and the public about it. There’s also a recent just-published law review article on autocratic judging that just came out in the UCLA Law Review. And it is written by two law professors, Rebecca Brown and Lee Epstein. Very important, timely work and worth reading. Another piece, Megan Wakspress wrote at Liberal Currents called AOC for President. I just think has a really. Nuance and sophisticated discussion about feminism and feminist politics. And I really enjoyed reading it. Megan is about to start as a professor at the University of San Francisco. So definitely watch out for her writing. Also, I wanted to highlight Mara Gaye’s opinion piece in the New York Times. She went to Alabama to kind of report on the aftermath of Louisiana versus Callais and the redistricting there. It is a searing read and worth reading in full. It’s called A Shocking Betrayal of Black Americans.
Melissa Murray It’s kind of hard to rebound after that Marguerite citation because that was a searing piece in The New York Times. But I will just say that it was a fun week for me because I was on the road promoting my book, The Constitution, A Comprehensive and Annotated Guide for the Modern Reader. I went to Philadelphia. I was in Washington, DC. It was super fun. I’m especially excited to get back home, though, and find some new reading delivered in advance for me. Lawless! Lawless. The paperback!
Leah Litman Melissa is holding up the paperback version.
Melissa Murray Yeah, Lawless, the paperback version. It’s so light. It fits in my bag. I had no objections to carrying around the hardcover, but I do like this paperback for summer. I also like the new material, which is so fun, so funny. It almost makes living through this moment okay, but not really.
Leah Litman No, not really.
Melissa Murray You got close but you didn’t actually nail.
Leah Litman Yeah, I wasn’t trying for that. I was not trying.
Melissa Murray Okay, to be clear. You did not stick that landing, but this is fantastic. Highly recommend. Please go and read. So because I was on the road, I got to meet a lot of people. I just wanted to shout out some of them. Shout out to one of our favorite friends of the pod, attorney general, forever attorney general, Eric Holder, who joined me in conversation at Politics and Prose in DC on Wednesday evening. Such a great night. Packed house. Thank you to everyone who showed up. Guess who showed up, Leah? Best intern ever. Best intern, ever. Jordan was right there. Also with Jordan was Natalia, a rising 1L at Harvard Law School, Kit, my former student. All there in the crowd. I met lots of great people. Shout out to Eleanor, who is a high school student, who is thinking about law school and has read all of our books. So good for her. I also got to attend in Philadelphia the Committee of 70s Women in Public Service Breakfast. That was on Wednesday morning. Want to shout out to Andrea and the other stricties that I ran into. It was a really great event where they honored Kitty Colbert, who, as we all know, was the person who argued Planned Parenthood versus Casey and has continued to fight for equality throughout her long career. Also want to give a big shout out to recurring friend of the pod, Sky Perryman, and the great folks at Democracy Forward who let me crash their retreat. They were fantastic. It was an amazing retreat. At Audi Field in DC. That’s how big they are. They’re fighting for democracy. And they need a whole soccer field to hold them. And it was fantastic. Also a shout out to Stricty Rachel, who I met standing in line at the Pret a Manger in Union Station on my way home. It’s a little embarrassed to be holding two sandwiches because I couldn’t decide. I wasn’t going to eat them all. But I wanted to be able to try both of them. It was really great to meet her. Finally, DC Strictys. If you have an opportunity, please check out the artist Emar Lyman’s amazing exhibit at the Krieger Museum. Lyman is an amazing artist who, by training, is a lawyer. And his work is infused with themes of law and justice and equality. And it’s just truly arresting. Does a lot of work in multiple media, collage, sculpture. It’s just really fantastic. And the Kriegar Museum is an unsung gem as well. It’s like nestled in a neighborhood in D.C. A private home that’s been turned into a museum and they have just a fantastic collection. So please get out there and see it. The show runs until July.
Leah Litman Speaking of undersung gems in Washington DC, if you haven’t heard yet, tickets for Crooked Con 2026 are on sale now. You can expect potential presidential candidates, campaign strategists, pollsters, organizers, journalists, creators, and crooked podcast hosts like me. Who knows, maybe I’ll even deliver a read to some potential presidential candidates, a la my take on the Michigan senators. Anyways, Crooked Con comes just days after the midterms. We will have a lot to learn and a lot to do, a lot get ready for, for the next two years. We’ll kick it off on Thursday, November 5 with a Pod Save America live show. Then on the evening of Friday, November 6, you can catch us at Strict Scrutiny Live.
Melissa Murray Oh my god, the pod bros are opening for us.
Leah Litman I know, I know.
Melissa Murray Finally! We’ve made it.
Leah Litman Nature is. Nature is healing.
Melissa Murray Yes.Touch grass, touch grass.
Leah Litman And on Saturday, November 7th, join us for a full day of Crooked Con panels and meetups. Head to crookedcon.com to get tickets and more details, including how to become a Friends of the Pod subscriber for a special discount. We can’t wait to see you there.
Melissa Murray Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Jordan Thomas is our intern. Our team includes Matt DeGroot, Ben Hethcoat, Johanna Case, Kenny Moffett, Eric Schuett, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East.
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