Asked and Answered: A Listener Mailbag Episode! | Crooked Media
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May 08, 2023
Strict Scrutiny
Asked and Answered: A Listener Mailbag Episode!

In This Episode

It’s our first ever listener mailbag episode of Strict Scrutiny! You asked, we answered– is court expansion possible? Is law school worth it? Who are our fancy billionaire friends? Can we stop being such hysterical harpies? Which Taylor Swift song is the best? Plus, we recap Justice Alito’s “interview” with the Wall Street Journal so you don’t have to read it.

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TRANSCRIPT

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Show Intro Mr. Chief Justice, may it please the Court. It’s an old joke, but when an argued, man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Leah Litman Hi, everyone. Before we get into the grab bag, we wanted to bring you up to speed on some breaking news. Justice Alito has dropped a new diss track. And spoiler alert, everything that’s wrong about the Supreme Court is everyone’s fault but his own. And he is a real victim in all of this.

 

Melissa Murray That’s right. That’s actually real victim Capital R, Capital V, because our boy, Sam, or for those of you who are purists. Justice Samuel Alito has decided to do an exclusive interview with The Wall Street Journal, and he did so right after we recorded the last two episodes. But you will not avoid us, Sam. We weren’t going to let this master class in grace and judicious behavior go unnoticed. No.

 

Kate Shaw This was late Friday, on April 28th, when the Wall Street Journal dropped an interview with Sam Alito. And it is not really an interview interview. It just includes a bunch of statements the justice gave to The Wall Street Journal reporters, a very, very normal thing to do, especially considering the substance of what he said. So we’re just going to tick through some of it before we get into our grab bag content.

 

Leah Litman So first up is Justice Alito Cosplaying Inspector Gadget, by which I mean some updates on the jobs leak investigation, at least according to Sam Alito. So Justice Alito tells The Wall Street Journal that the marshal, quote, did a good job with the resources that were available to her. And he also agrees that the evidence was insufficient for a public accusation.

 

Melissa Murray Rather than just stopping there. Like any good investigator without any real evidence might. Justice Alito went further. Like the Hardy Boys fan he is. He noted that, quote, I personally have a pretty good idea who is responsible. But that’s different from the level of proof that is needed to name somebody, end quote. And again, I just want to highlight. This is not going to win any Pulitzers. This is not real investigative journalism.

 

Kate Shaw But that did not stop Justice Alito, who wanted to let us know that he is certain not only about the identity of the leaker, but also about the motive of the leaker. So he said, quote, This was part of an effort to prevent the Dobbs draft from becoming the decision of the court. That’s how it was used for those six weeks by people on the outside as part of the campaign to try to intimidate the court.

 

Leah Litman And lest you think these are just the inconsequential ramblings of an old man who suffers from Fox News or Newsmax brain or whatever it’s called these days, this intimation was picked up pretty quickly by some other people. So I wrote to National Review Post talking about this, about how Alito suspects there’s a leaker and therefore they intimated other people must also suspect someone as well. And another piece about how the leaker supposedly has some kind of ethical obligation to disclose to their clients that they are, in fact, the leaker. Just totally bizarro stuff. But I read this post to kind of imply that there’s a nonzero chance that it might be a matter of time before we learn who Alito suspects, because some outlet or conservative talking head is going to identify them. And at the ethics hearing this past week in the Senate, Senator John Kennedy almost seemed to echo Alito’s interview in the following statement.

 

Clip The Dobbs decision was not leaked by a left wing blogger. Why? That’s worth asking.

 

Leah Litman I’d also just like to sound a note of caution about Justice Alito’s jurisprudence on the death penalty and criminal procedure more generally. If he thinks he can just give a statement to The Wall Street Journal that he personally has a pretty good idea of who is responsible for the leak, even though the investigation found insufficient proof and he is certain about the motive for the leaker. This is literally the man in charge of determining whether to stay certain executions and to determine whether someone was afforded sufficient process at their criminal trials. I’m beginning to have some doubts.

 

Kate Shaw Or beginning to understand why he always thinks the process given was sufficient, because this, in his mind, is perfectly sufficient process. Yeah. Yeah. So it is part of a coherent worldview, I suppose we give him that. But back to the interview. So he goes on to say.

 

Melissa Murray Wait, no, no, back to the inter-view.

 

Kate Shaw Interview. Thank you for that correction of Melissa in, whatever it was, Justice Alito continued, and he said that the leak made the justices who were perceived to be in the majority, quote, targets of assassination because, quote, it was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us. This is an Alito quote in this interview.

 

Melissa Murray This was so insane.

 

Kate Shaw It’s so insane. The Journal also noted that a few pundits on the left speculated that the leaker might have been a conservative attempting to lock in the five justice majority and overturn the constitutional right to abortion. And Alito responds to this by saying, quote, That’s infuriating to me. Look, this made us targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves. It is quite implausible.

 

Leah Litman And also, like his recounting about what the league did, we can grant that it did contribute to the man going to Justice Kavanaugh’s house in an attempt to possibly try and assassinate him. But as Joan Biskupic reports in her book, something else the leak did is harden the five justice majority. Right. And he is unable unable to see this because his only view of this is through his usual lens, which is like the Democrats are a threat to the world and I am a victim of this.

 

Melissa Murray But to be clear, Justice Alito does not necessarily feel unsafe, as he explained in his air quote, “interview”. He doesn’t feel physically unsafe because we now have a lot of protection. He is, quote, driven around in basically a tank. And I’m not really supposed to go any place by myself without the tank and my members of the police force, end quote. That’s just because you don’t have friends, dude. Like, that’s why you’re rolling around in a tank.

 

Kate Shaw I’m sorry, Melissa. This is Erasure of Mrs. Wright and the many other friends that we know from various reporting that Justice Alito dines with, at least on occasion.

 

Melissa Murray But you don’t need the tank to walk across the street to the special clubhouse that was purchased for you. Justice Alito, again, in this interview, did not want to leave anything on the table, so some more bangers were spit. He told the Journal that, quote, This type of concerted attack on the court and on individual justices is, quote, new during my lifetime. NARRATOR voice There were actual literal billboards asking to impeach Earl Warren after Brown versus Board of Education. So this person who espouses a history and traditions view of constitutional interpretation once again has proven that he’s pretty shit at history and tradition anyway. He continues, quote, We are being hammered daily and I think quite unfairly in a lot of instances. And nobody, practically nobody is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense instead. Quote If anything, they’ve participated to some degree in these attacks, unquote. So one lawyer, as you went to law school to sign up to be part of the cult of the court, and when the court is unfairly maligned, you’re supposed to put down your briefs and take up arms to defend Justice Alito and his ilk. And if you don’t, it’s completely unfair. And nobody, practically nobody is defending them.

 

Leah Litman Well, and also, judges are not supposed to respond to criticisms, as you like, but I’m a fucking justice. And so I can do this. I mean, look. What is this?

 

Kate Shaw We made him. We made him do this.

 

Melissa Murray Look what you made me do.

 

Kate Shaw Exactly. And just to go back to the history for just a moment. So, Melissa, you mentioned the post Brown attacks on Justice Warren and the entire Warren Court. The historian Kevin Kruse has a great piece in Bloomberg really effectively debunking the idea that critiques of the court or even challenges to the court’s legitimacy are in any way new.

 

Melissa Murray Can we just point out Kevin Crews is an historian, right. Like someone trained in historical methodologies.

 

Leah Litman In this case, however, I think a simple Google search could have turned this up. I mean. I’m not a historian, but I am familiar with www.Google.com and books.

 

Kate Shaw Well, Alito is apparently unfamiliar with both of those things.

 

Leah Litman And you know, back to the Alito pity parade for a second. You know, the piece of the quote “interview” that is about the Supreme Court’s legitimacy is basically him saying, I’m taking away your rights. You must praise me like while I do. So it’s the audacity of taking away people’s rights and then turning around, being like, well, where’s my parade? You know, that really does it for me. And it’s it’s like he’s like, why aren’t you welcoming your new overlords?

 

Kate Shaw And it’s not just the Wall Street Journal interview and Alito in its pages that is striking this note, just as the presses were drying on this interview. Out popped a National Review piece. That was a defense. So now we’re talking we’re shifting from Alito to Thomas. But in defense of Justice Thomas, titled, quote, Justice Thomas acted properly and did not have to disclose his trip. So that that headline really captures the content of the piece. But what’s what’s interesting and worth flagging.

 

Leah Litman It’s not interesting. Kate. It’s actually.

 

Melissa Murray This is the most.

 

Kate Shaw Unsurprising.

 

Melissa Murray Unsurprising world’s best “This you” like?

 

Kate Shaw Yeah. Really. I will tell you Melissa who wrote it it was written co-written by Mark Paoletta, who not only personally attended some of the Harlan Crow funded junkets that he is saying Thomas could. Obviously participated, and it’s outrageous for anyone to suggest otherwise. But Paoletta was so central a player that he actually appears. He is one of the characters depicted in the weird pastoral painting that we’ve talked about, the one featuring Crow and Thomas and Leonard Leo and Mark Paoletta and no, Mark Paoletta did not mention.

 

Melissa Murray Oh, really?

 

Kate Shaw Sorry, I don’t want to erase. Yes, I guess I don’t know if his defense is forthcoming, but, you know, Paoletta did not mention this fact in his extremely spirited nothing to see here, defense of Crow and Thomas’s relationship. So because that two broke just after we finished recording our last shows, wanted to slip it in.

 

Melissa Murray Who is running PR for these dudes? Is it the same PR firm that’s handling the royal family? Because they are like mangling this?

 

Leah Litman I mean, whoever it is, I think they’re getting an awful lot of money from Leonard Leo like they are well paid, even though they might not be great at their jobs.

 

Melissa Murray I mean, Galaxy Brains like this was a dumb PR strategy, like find someone else to write this terrible headline and article. But back to the Alito interview. Interview. Justice Alito was unwilling to discuss some things with The Wall Street Journal. So, again, judicial restraint. Right. He said, quote, I’ll stay away from that. When asked about ethics accusations against Justice Thomas from Partizan Media. You know, there are limits people. But he happily addressed the sexual assault allegations against Justice Kavanaugh, saying and this is a quote. Quote, After Justice Kavanaugh was accused of being a rapist during the Senate confirmation hearings, he made an impassioned speech, made an impassioned speech, and he was criticized because it was supposedly not judicious, not the proper behavior for a judge to speak in those terms. I don’t know if somebody calls you a rapist. End quote. Who among us would not respond in this way? I mean thats the tldr.

 

Leah Litman I like how he calls it a supposedly not judicious speech. Brett Kavanaugh literally screamed and cried shrieking, I’m sorry I laughing is a coping mechanism for me. Shrieking at the Senate Judiciary Committee. What goes around comes around, pounded his fists and said the allegations against him were part of a conspiracy to get revenge on behalf of the Clintons. I mean, I get why Justice Alito thinks that’s all cool and normal, since he is basically sharing his own conspiracy theories with The Wall Street Journal and acting in judiciously. It’s just otherworldly to see this described in that manner.

 

Kate Shaw Justice Alito also has an idea of who is behind the court’s plummeting approval ratings. And spoiler alert, he thinks it’s not him. It’s not the courts stripping away people’s rights, allowing state legislatures to literally torture women. No, no, that’s not it. What he says is here is the culprit. Then those who are attacking us say, look how unpopular they are. Look how low their approval rating has sunk. Yeah, well, what do you expect when you’re day in and day out? They’re illegitimate. They’re engaging in all sorts of unethical conduct. They’re doing this. They’re doing that. So it is the critics of the court who are not the court itself, who are responsible for the public losing faith in the court. So newsflash, I think we should share with Justice Alito, which is that people are not going to start thinking you’re illegitimate just because other people say that you are illegitimate. Maybe it is that you are acting illegitimately. At least indulge that possibility.

 

Leah Litman No. Doesn’t check out. Can’t be.

 

Melissa Murray It’s me? I? I’m the problem? No. Justice Alito also happily spoke about some of his other favorite topics, namely the shadow docket and withdrawing medication that millions of women might want access to like mifepristone. So in this interview, we learned the identity of the real victim of the shadow docket. It’s not transparency. It’s not the legitimacy of the Supreme Court as an institution. In fact, the real victim of the so-called attack on the shadow docket is, in fact, Justice Alito himself.

 

Leah Litman He finds the shadow docket.

 

Melissa Murray Applications to be a nuisance. They’re, quote, very disruptive. But what are we supposed to do? They are brought to us like basically. You brought us the shadow docket. I just decided these shadow docket things and don’t get mad at me if they’re shadowy on the shadow docket. So, yeah, like he’s the real victim because he has to sift through all of these nuisance filings that weirdly have major substantive consequences in many cases. He also resorted to one of his favorite tactics. I think we might call this both sides ism, maybe. What about ism? And he specifically called out the Biden administration for seeking review of the order clawing back the two decades old approval of a presto. According to Justice Alito, quote, The last administration brought a lot of applications to us because a lot of its programs were enjoined. That’s because they were all fucking insane saying this administration is doing the same thing right now. Not quite the same thing. But let me continue the source. Star general has said that she’s likely to file an application here to stay the fifth Circuit’s order in the case involving the manifest, or however you pronounce the word end quote.

 

Kate Shaw Yeah, there is that odd timing issue. So of course, even though the interview scare quotes interview was released just last week, it obviously was given before the court’s ruling on the application and if a press don’t case. So I don’t know what explains the delay like they were. I don’t know. Kind of.

 

Melissa Murray Probably trying to figure out how to pronounce mifepristone. He’s like, hold on, don’t release it until I get this right.

 

Leah Litman They were workshopping the wonderful language like *clears throat*, and I quote, I personally have a pretty good idea who was responsible. It took some weeks to workshop that one to perfection.

 

Kate Shaw Here’s a theory. Maybe he names the person and the Wall Street Journal. Lawyers are like after after a couple of weeks of agonizing over whether this is a risk worth taking, decide they can’t publish the name. But in addition to the weird kind of timing reveal there, the fact that he doesn’t or at least didn’t a few weeks ago know how to pronounce the name of the medication, that he would have happily slapped additional restrictions on. This is the medication he is personally in second guessing the FDA’s judgment on. I mean, that is really some chutzpah. It really is.

 

Melissa Murray You say chutzpah, I say something else.

 

Leah Litman That was like an Elena Kagan. I had another word in mind. Kate.

 

Kate Shaw Really glad I got cut off there.

 

Leah Litman Yeah. Finally, we’d be remiss if we didn’t note the portions of the Alito interview in which the justice mused about topics such as why people like Justice Scalia more than him. And the quote is, Nobody can say for sure. Sam Alito says. But I’m willing to bet he, you know, Justice Scalia would have been on the side that’s been so heavily criticized. But when you’re in dissent, Justice Alito says, well, then his ideas are amusing and interesting. He spoke at a lot of law schools and he was honored at law schools, but he wasn’t a threat because those views were not prevailing. Well, Hardy Boy has done it again. He solved the mystery about why people like Justice Scalia more than him.

 

Melissa Murray The mystery of the court’s dwindling legitimacy. That’s all we have time for with this banger of an interview. We should really come back. Actually, this would be a great we’re going to do it dramatic or we’re going to go. Yeah, there’s to be a great one for a dramatic reading. We should act this out. But we have some really great content because you all, unlike Justice Alito, didn’t have to call up the Wall Street Journal. You directly slid into our DMS and gave us some awesome grab back content. So let’s get to that.

 

[AD].

 

Leah Litman  Today we are doing our very first Listener mailbag episode. It was so much fun to hear from so many of you.

 

Listerner Hi Strict Scrutiny.

 

Listerner Hi strict scrutiny.

 

Listerner Hello, Strict scrutiny.

 

Listerner Good morning. Strict scrutinizers.

 

Listerner Hey, ladies.

 

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Listerner Hi Melissa, Kate and Leah.

 

Listerner Calling from Los Angeles County, California.

 

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Listerner Spokane, Washington.

 

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Listerner I’m not a lawyer or law student, but I work in biomedical research.

 

Listerner I’m a lawyer, volunteer abortion clinic escort and ice skating instructor.

 

Listerner Strict scrutiny is my soundtrack every morning when I walk my dog.

 

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Listerner I listen to strict scrutiny as soon as I can on Monday mornings.

 

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Listerner I love listening to the pod. I usually do that when I’m driving or when I’m watering my plants.

 

Listerner I’ve been a listener for about three years.

 

Listerner And I look forward to your podcast every Monday morning.

 

Leah Litman And for today’s episode, we’re joined by two special guests, our producer, Melody Rowell, and production assistant Ashley Mizuo. Welcome to the show, Ashley and Melody.

 

Melody Rowell Hi.

 

Melissa Murray You got to turn your cameras on and you’re not muted. Amazing.

 

Melody Rowell I don’t know, like what I’m going to do when you start saying, Melody, take it out. Like, do I actually respond or?

 

Kate Shaw Thumbs up, Thumbs down.

 

Melody Rowell Yeah.

 

Kate Shaw You make you make clear that you decide. We ask, but you ultimately make the calls.

 

Melody Rowell That’s right.

 

Kate Shaw So, listeners, Melody and Ashley are going to help us read questions that we received from you all. So the way we’re going to do this is we’re going to group the questions into three categories. So first category is case specific questions, where you pose questions related to specific cases the court is considering or has decided. Second category is questions about the court and the courts and the law. More generally, a lot of these were about court reform or responses to things the court is doing. And then the third category is a motley grab bag of questions, big and small, heavy and light. They are all over the place and they were delightful. So let’s get right to it.

 

Melissa Murray If we don’t get to your question, please do not take it personally or feel badly like we just we don’t have as much time. We like to do the whole season with just your questions, but we can’t do that. It just means we have to do another one of these episodes again. So don’t take it personally. Okay. First up are the case specific questions. So we received several questions about equality related arguments about abortion rights. So we received this particular question from Aditya.

 

Listerner My question is, is there any hope of getting Justices Roberts, Barrett and Kavanaugh to take the equal Protection Clause more seriously? I thought the way Alito treated this and the Dodds were already opinion was very, very weak. And I wonder if the more sane members of the court might reconsider this.

 

Melody Rowell And then Katie similarly wanted to know what will it take to get the Equal Rights Amendment into the Constitution? And once ratified, would this finally make it impossible to make abortion illegal? And then we also got a question from Chris, who wanted to know whether ratification of the IRA would have prevented Dobbs And would it also protect transgender individuals?

 

Kate Shaw So, Melissa, you have written a lot about the equality basis for abortion rights. Do want to take that one and then we can talk about the Equal Rights Amendment.

 

Melissa Murray So as I have written with Reva Segal and Serena Mayeri in our amicus brief and Dobbs, we do think that there is sound footing for an equal protection argument for abortion rights. Again, under the Equal Protection doctrine, sex based classifications have to be reviewed under intermediate scrutiny, which means that they can only be sustained if they are substantially related to an important governmental purpose. And we argue and I think it’s pretty fair to say, that restrictions on abortion are a species of sex based classification. So on that view, the government has to have a pretty important interest in restricting abortion, and its means of doing so have to be substantially related to promoting that interest. And usually states like Mississippi talk about restricting abortion as necessary for women’s health. But as we’ve argued in our brief, the steps that they’ve taken to promote women’s health all seem to just be limited to limiting abortion. There are other steps that Mississippi could have taken before it passed its very draconian abortion law that was upheld in Dobbs. It could have expanded Medicaid funding that would have improved women’s health. It could have expanded funding for temporary aid to needy families. It could have provided meaningful sex education. It didn’t do any of those things. In fact, the only thing it really did to serve women’s health was to limit abortion. And again, if there are these other alternatives that don’t necessarily impact a sex based classification in that way, the state has to at least try those. And that’s sort of the point of the equal protection argument. But as you know, equal protection is basically a shibboleth concocted by ladies and their lady parts. And Justice Alito didn’t really feel the need to address it in any real detail, preferring instead to advocate to adult egg versus ALA, which is a 1970s era case that says that the state can discriminate on the basis of pregnancy because it’s not a sex based classification, because not all women are pregnant. And we argue that there are later cases that might refute Geduldig or even implicitly overrule Geduldig. But we’re just ladies with our lady parts and who needs to listen to us? Not Sam Alito. So we didn’t really get very far.

 

Leah Litman And maybe just to explicitly tie this to the era, even if the era did become part of the Constitution, the era prohibits certain discrimination and distinctions on the basis of sex. But given that you have five votes on the Supreme Court for the idea that abortion restrictions are not distinctions or discriminations on the basis of sex, it’s not clear that ratifying the era actually would mean. And restrictions on abortion have to be subject to intermediate scrutiny or outright prohibited. And I think that kind of lesson also holds when we’re asking about whether the era would protect transgender individuals as well. The justices would ask whether distinctions on the basis of gender identity are distinctions or discrimination on the basis of sex. On one hand, you have the court’s opinion in Bostock versus Clayton County, which concluded that discriminating on the basis of gender identity was prohibited. Discrimination on the basis of sex in violation of Title seven. But it’s not clear that they would say the text of the era necessarily means the same thing because of Neil Gorsuch is word science.

 

Kate Shaw Yeah, And maybe just to take a step back just for a moment, if people aren’t kind of closely following the saga of the era, the era is this proposed constitutional amendment actually first proposed 100 years ago in 1923, but passed in Congress. So the way Article five of the Constitution says you can amend the Constitution is primarily by a two thirds vote in each House of Congress, and then ratification in three quarters of the states, which is 38 states. So it’s a big number. In 1972, Congress did pass the Equal Rights Amendment. It initially looked like it was sailing toward ratification. We’ve talked in previous episodes about that kind of stalling out largely as a result of the advocacy efforts by one Phyllis Schlafly. But the era stopped at 35 votes, never made it to 38 in the 1970s. But there has been a renewed push really since the election of Donald Trump. So in 2017 and then 2018 and then 2023 more states ratify the ERA. So there actually are 38 states that have right now ratified the era, which is what the Constitution requires. But the catch is that when the era was passed in 72, it had a deadline attached to it, first 1979, then 1982. The 38 states didn’t happen by those deadlines. And in the interim, some other states have tried to rescind their ratifications. So there’s this real question about whether the era is already part of the Constitution and actually who decides if it is. And there was a hearing in April in the Senate to basically declare the era ratified, regardless of the existing deadline. But even if the thing were recognized as part of the Constitution, as the 28th Amendment, all of the questions about what the era means that Leah was just talking about would still be presented. And it’s anyone’s guess, I think, how this conservative court would read the protections of the era. But I do think that the court would be required to revisit some of this in light of a new constitutional basis for arguments in favor of abortion rights. But because the court has such a narrow view of what the equal protection clause of the 14th Amendment covers, So that’s a long answer, but a bunch of great questions.

 

Ashley Mizuo We also received this question for MiMi as a Jewish woman, many of the Jewish faith believe that the baby is not a person until birth, and we hold that life of the mother and her autonomy is given deference over a fetus. Isn’t that a good avenue to pursue in the next steps in the Dobbs case, why is this not a point of attack on these religiously tinged decisions?

 

Leah Litman So it actually is being raised in some of the current challenges to abortion restrictions. So there is a challenge in Ohio and a challenges elsewhere that actually argue that these restrictions on abortion infringe people’s religious rights because they require them to act in ways that are not consistent with their religious views on life. Unfortunately, organizations that are supposed to be devoted to religious liberty have been filing briefs in these cases, questioning whether these religious beliefs are, in fact sincere. And you have Republican legal commentators arguing that liberal Jews, as well as maybe also conservative Jews, can’t have serious religious beliefs or their religious beliefs, can’t be burdened because they don’t have actual religious obligations. So formally right. It’s true that given the law that the Supreme Court has recited, which is even laws that don’t single out religion can violate individual’s religious freedom when they impose differential burdens on those religious believers or require them to act in ways inconsistent with their religion. Those challenges seem like good ones. It’s not clear that courts will actually follow them in cases like these.

 

Kate Shaw Next up, we have a question from Kate in Spokane.

 

Melody Rowell As the abortion fight narrows its focus here, I want to understand theoretically how far a state like Idaho can go with travel restrictions. Eastern Washington and north Idaho communities have always been closely intertwined. A lot of people live and work or own property across state lines, and I want to understand how far they can take it.

 

Kate Shaw I think it’s right that the question about state’s power to restrict travel is the kind of next frontier in many of the legal and political fights around abortion. Justice Kavanaugh wrote a concurring opinion in Dobbs in which he said he believed that restrictions on travel would be unconstitutional. Right. Restrictions on travel of this sort. Or designed to ban individuals from crossing state lines to obtain or provide abortion services. The issue wasn’t presented in Dobbs. I am not sure how much comfort to take from those assurances of Justice Kavanaugh in a concurring opinion. I think there’s at least a chance that Kavanaugh and Roberts and of course, the liberal justices would vote to invalidate these laws if they reached the Supreme Court. But that doesn’t mean that states might not be able to enforce them in the interim. So I think that there is, you know, very real reason for concern about states, at least in the short term, being able to enforce such restrictions.

 

Melissa Murray It’s also worth noting for Kate’s question that the law in Idaho that makes it a quote unquote, offense to traffic a minor for purposes of an abortion isn’t necessarily about crossing state lines. It’s just that there are so few abortion clinics available in Idaho. I think they’re like maybe there’s one or two at this point that realistically, in order to get an abortion, you would have to cross state lines. So the law actually only makes it unlawful to traffic an individual within the state. And so that doesn’t necessarily violate on its face the right to travel. But the broader purpose of it is to chill interstate travel for abortion purposes. So, again, kind of a clever goblin move to avoid the whole question of interstate travel while also creating some chaos, making it harder for people to seek abortion care and making it harder for people or deterring people from going out of state to do so.

 

Melody Rowell We also got a question from Spencer, who wanted to know after Dobbs, would the trigger laws in various states be unconstitutional, since the decision seems to suggest that these issues could be resolved by current legislatures that represent the current constituency?

 

Leah Litman This is just one reason why Dobbs is not actually returning these issues to the democratic process. Because you think of, for example, a state like Wisconsin that had a pre-roll criminal abortion ban on the books that was enacted, what, like 1830 something before women could vote. And that law went back into effect, you know, after the Supreme Court’s decision in. Dobbs Even though a majority of Wisconsinites don’t actually want the law on the books, but their legislature is so heavily gerrymandered that they don’t have the votes in the legislature to actually repeal the law. And so we have seen some instances of some courts saying maybe some of these trigger laws violate provisions in state constitutions, but it’s not clear that there is anything about the U.S. Supreme Court’s decision in Dobbs that suggests it is unconstitutional under the federal Constitution for a state to begin enforcing laws that have been on the books for a while but haven’t been enforced because of decisions like Roe, Casey and Griswold. And of course, we’re also seeing this potentially play out on the federal level when it comes to something like the Comstock Act, which is a federal law that potentially could be enforced in ways that prohibit access to medication, abortion and contraception. And there are some individuals who want to bring that law back. And in the event of a 2024 Republican administration or Republican administration, after that, we could see efforts to actually reinvigorate the Comstock Act as well.

 

Melissa Murray All right. Our next question is from Ali.

 

Melody Rowell I’d love to hear your guy’s thoughts on whether or maybe more accurately, how hard the court is chomping at the bit to overrule capital defendant friendly precedents like Lockett versus Ohio, Akins versus Virginia or Kennedy versus Louisiana.

 

Leah Litman So just to explain those decisions for a second, Lockett versus Ohio is a decision that said juries had to be able to consider all of the mitigating evidence, basically the evidence counseling against imposition of the death penalty. Atkins versus Virginia is the decision that said it is unconstitutional to execute individuals who have below certain mental capacities. And then Kennedy versus Louisiana is a decision that said it’s unconstitutional to sentence someone to capital punishment for the crime of rape, rape of a child specifically. So I think we are already seeing this court basically give the green light to states evading some of those decisions. And in particular, the Supreme Court denied review in an Atkins case involving an individual called Nixon. So it was Nixon versus Florida. And the Florida courts denied the Atkins claim in 2009 because they said he hadn’t shown he presented IQ scores below 70. But after that, the Supreme Court, when Justice Kennedy was still on the court, said, you actually can establish an Atkins violation even without this 70 IQ score cutoff. But the Florida Supreme Court said we don’t actually need to apply that rule to any cases where individuals were previously sentenced and so upheld a death sentence under a rule that the U.S. Supreme Court said was unconstitutional. The U.S. Supreme Court let that decision stand. And so rather than intervening where state courts were effectively refusing to apply. Decisions like Atkins. Basically, they’re just greenlighting that now. And so I think we are already seeing some whittling down, although it’s not clear whether they are actually going to formally take a case to do so, rather than just letting the state courts or other courts do the dirty work for them.

 

Kate Shaw Atkins is a case that since the court decided it, it essentially told states that they had the responsibility to implement this sort of broadly framed prohibition on executing individuals with serious intellectual disabilities and has not really done the work of policing state’s compliance with that. And many states, I think, have been basically outright defiant and have defined intellectual disability in a way that actually didn’t give meaningful effect to the holding in Atkins. But I think it is a real question Is the court going to actually revisit and overrule some of these cases that kind of deemed categorically off limits, particular individuals or categories of individuals from eligibility for execution? Right. Certain categories of individuals in the court that preceded this one, the court held in opinions by Justice Kennedy and Justice Stevens. Certain individuals could not be executed by the state. And I think this court would be very happy to revisit some of those cases. But to my mind, it’s a question of whether they do it directly or simply allow states to erode the protections or prohibitions announced in those cases.

 

Melissa Murray When we come back, we will answer your questions about how to reform all this stuff at the Supreme Court.

 

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Kate Shaw This next set of questions is about the Supreme Court and the courts and the law more generally. And a lot of the questions are about responses to or reforms of this particular court.

 

Ashley Mizuo Amy wants to know totally, hypothetically, and not at all connected to current events, what, if any, is the process of removing a SCOTUS justice? Is there possibly an obscure layperson’s path to doing this?

 

Melody Rowell You guys.

 

Leah Litman We’re the only the obscure layperson’s path of doing this. I kind of thought that’s what this podcast was doing, right? Like if we put out enough episodes then Sam Alito would just be impeached.

 

Kate Shaw Oh, well, there is not. So the impeachment has a very high constitutional bar. Impeachment could happen with a majority in the House. So that’s actually not crazy difficult. But actual removal, which would, you know, change the composition of the court, requires a two thirds vote in the Senate so that 67 votes in the Senate. And it’s very hard to see that being a realistic possibility today. I mean, I will say resignation is a thing that has happened with Supreme Court justices, right? So the court is extremely scandal ridden Supreme Court Justice Abe Fortas, who had a constellation of ethics and optics problems, some of which involved payments that were of a questionable nature, some of which involved relationships that were of a questionable nature, in particular with a sitting president. Melissa. Once you dispute the characterization he just ends up resigning.

 

Melissa Murray I did not see Abe Fortas on a private jet. That’s all I’m going to say.

 

Leah Litman Well, did he keep the money.

 

Melissa Murray I mean. How much money was it?

 

Kate Shaw It was I think so, but it was a small amount.

 

Melissa Murray I’m saying I’m not excusing Abe Fortas. I’m just saying Abe Fortas resigned with bipartisan calls to do so for far less than what we are seeing today. And that’s all I’m going to say. Also, Abe Fortas never got on the court after credible accusations of sexual harassment. So I’m going to put that out there, too.

 

Leah Litman I mean, Abe Fortas seems to have had like a semblance of shame, a sense of shame. So.

 

Melody Rowell Justice for Abe Fortas.

 

Melissa Murray He can’t be a justice but justice for him.

 

Ashley Mizuo We also received a similar question from Michelle.

 

Listerner I would like to know if there is any scenario in any of the indictments that Trump is potentially facing where he could be convicted and found guilty, and then the crime that he committed would be enough to remove his Supreme Court justices from the Supreme Court.

 

Leah Litman There are two. The possible remedy is impeachment. And removal like that is the possible remedy. And that faces kind of the same obstacles that we were referring to just now. So we got a couple of questions. If you can’t remove the guys, how about you add some new ones and maybe not dudes? So questions about expanding the court. Let’s hear them.

 

Listerner My question is, what would the implications be for expanding the amount of justices there are in the Supreme Court?

 

Leah Litman And this one, too?

 

Listerner What does Congress or the president need to do to increase the number of Supreme Court justices?

 

Leah Litman So, you know, like the process is pretty easy. You pass a law and sign the law and there’s nothing in the Constitution that fixes the number of justices on the Supreme Court. And here to the obstacle is getting through the process of legislation and actual signing by the president. Any law like this would right now, under current rules, be subject to the filibuster, which means you need 60 votes in the Senate. I don’t think there are 49 votes right now in the Senate for this, but that’s the actual process. You know, pass a law, sign it.

 

Melissa Murray I think the major implication that always gets brought up when court expansion or court recalibration or whatever you want to call it is raised, is the prospect that it’s just a race to the bottom and that with each administration or with each ideological turn on the court, it will simply be met with an interest in expanding the court even further. And so, again, I think people worry that if court expansion happens, it will just again, be an ongoing saga and suddenly we’ll have a court with 150 people.

 

Melody Rowell Would that be so bad, though? Like, that’s the question I always have.

 

Leah Litman No, I mean, I.

 

Melody Rowell I don’t think so.

 

Leah Litman That’s the implication and that’s the calculus. You know, you could obviously pair that with appointments of justices, not with life tenure, but rather for a term of years, so that you aren’t basically appointing a bunch of people who can serve indefinitely but would only serve for a particular duration. Now, of course, if you’re worried about getting to write a tit for tat for the other side, you’re might not do that if you think the other side won’t. But yeah, right. Like that implication doesn’t necessarily mean that’s a bad implication or a reason not to do it, but I think that is kind of the expectation about what would happen. Of course, the Democrats wouldn’t respond if Republicans had seats. They just like holding hearings and like sends immune tweets.

 

Kate Shaw The predicate is Democrats at a few seats. And I think it’s quite obvious that the Republicans, the next possible juncture would do the same, except for add like ten times as many.

 

Leah Litman But, you know, we literally try to pass a law. They try to pass a law with like 40 votes in the Senate. They’d be like, actually like our new interpretation of the Constitution is we can add seats to the Supreme Court if only Ted Cruz votes for it and like that is now the law. Like, that would be their spot. And they would just like be like it’s now Justice Matthew Kacsmaryk. It’s now Justice James Ho, like that. That’s just the world we’re living in. Like that would be the response.

 

Melissa Murray Yeah. We had another question about court reform.

 

Listerner Hello, my name is Patrick, and I’m not a lawyer law student, but I work in biomedical research. The question that I have for you all is what are your thoughts on using mandatory jurisdiction as a way to rein in the yellow court? I know that’s something that historically the Supreme Court has fought against because according to them, it takes away time from important questions, which, given what the current court considers important questions, it seems like a great idea.

 

Kate Shaw I mean, right now, the idea of giving this court any more cases and any more power makes my blood run a little cold. But the premise of the question, and this is something that a great forthcoming conversation we have with Steve Vladeck highlights at a few points is that they’re completely unbounded power to take and decide whatever kind of cases they want to is enormously problematic. So in a way, restoring a kind of mandatory jurisdiction would actually strip the court of some of its power, at least in its agenda setting sentence. But it would give it more cases to decide and thus more power over all of us. And to my mind, at least, that’s a major drawback. So, look, people definitely seem to want to talk about what to do about this court. So let’s play one more question.

 

Listerner So assume a great outcome in 24 with enough Democratic senators willing to trash the filibuster in order to get things done, but maybe not enough willing to expand the court. So to limit this legislative breach of this YOLO SCOTUS. Teach us about jurisdiction stripping. Can it work and how does it work without being torched by the Supremes?

 

Leah Litman I can try to take a stab at this one. You know, jurisdiction stripping just refers to removing some set of cases from the Supreme Court or basically limiting the Supreme Court’s ability to decide them according to their preferred view about the law. There is both kind of like a reality of jurisdiction stripping and then kind of a predictive question about what this Supreme Court might do about future efforts to limit their jurisdiction. The reality is there are actually a ton of statutes right now that strip the Supreme Court’s jurisdiction and the federal court’s jurisdiction generally over certain kinds of cases. So in habeas corpus cases where someone who’s convicted in state court is challenging their conviction in federal court, and Congress has stripped the federal court’s ability to hear those cases, according to the federal court’s preferred interpretations of the law in immigration cases, Congress has likewise limited the federal court’s authority to review immigration decisions according to their preferred interpretation of the law. And under settled law, Congress can strip the Supreme Court and federal court generally authority to decide certain kind of cases. Now, what’s unsettled and unclear is whether Congress could, say, strip the Supreme Court’s authority to decide a bunch of constitutional cases because Congress didn’t want the Supreme Court to reach a particular result. And I say that’s unsettled because it’s not clear that there were cases exactly upholding laws of that kind. And it’s also very possible that the Supreme Court would say, you can’t do that, that interferes with us being king and queens at you know, the Supreme Court has a very strong view of judicial supremacy where they are supreme, and they get to decide what the law means. And so in the event where, you know, you have a Democratic Congress passing laws to try to limit the court’s authority rather than expand it, I think there’s a pretty good chance that some of those statutes, at least in high profile cases, would get struck down.

 

Melody Rowell So because the outlook is bleak, we naturally got some questions on whether it is all worth it. Joyce wanted to ask, Why be an attorney when the strength of my arguments or my client’s case won’t matter? Is it still worth it to be a lawyer? And then we also got this question from Frankie.

 

Listerner I’m a 32 year old actor and college instructor, and I’m thinking of mixing things up and going to law school with a focus on social justice. I’d love to hear your thoughts on what it’s like to be a law student at the moment. Given recent madness in the courts, Insert started What now? And any other advice you might have for law students these days? Thank you.

 

Leah Litman President Optimates.

 

Melissa Murray I’m going to do. Like Kate hold on. I’m going to channel my inner Kate. Okay.

 

Kate Shaw Nice.

 

Melissa Murray Joyce. Frankie, real talk. This path has never been smooth. Like, let’s just be real. The court we have is very much like the court we have had in years past. There was a glimmer of momentum in the 1960s, 1970s. Maybe we got a little accustomed to winning. But for the most part, we’ve lost more than we’ve won. And we still become lawyers. We still agitated for change. We’ve actually made change happen. So there is more you can do. There are things you can do. And whether this court is filled with hobgoblins or not, you have to keep doing it. You have to keep faith, because if you don’t, we might as well just all pack it up, put on a handmade garment and find some babies and throw them in safe deposit boxes to be adopted.

 

Leah Litman We are not Dick Durbin. We do not give up before not even try to fight. That is not it.

 

Melissa Murray Put your knife away and get your briefs out because your briefs are a gun and you need to go to a gunfight. So I’m not going to hear any of the cynicism. I am not done fighting like I know it looks bleak. These are dark times, but we have each other. We have our law degrees and we have the conviction that we are right and we are going to prevail. We just have to believe it. So let’s all get together. We have to work even harder to overcome the mal apportionment, all the crap that’s gone on. But we can do that because we’ve always done that and we’re not going to stop and they’re not going to stop us.

 

Leah Litman And also, are we just going to like, let them win, Right? So let them win. No, I’m going.

 

Melissa Murray I’m going to treat this like I treat aging. I am moisturizing and I’m coming back for more.

 

Kate Shaw It is also to strike a practical note for one moment, the Supreme Court. The Supreme Court is a nightmare right now. Like I don’t think that’s in question, but there are state courts, there are lower federal courts. There are many other venues in which legal arguments can be made and can prevail. And so, yeah, if you find this Supreme Court so dispiriting, you cannot imagine getting out of bed and showing up to work there. Like, I think that.

 

Leah Litman Don’t go work there. Don’t go work there.

 

Kate Shaw There are many other ways to practice and places to practice law and actually advance justice. And so don’t check out of all of that just because the Supreme Court is in the mix.

 

Melissa Murray Hydrate, moisturize and keep going.

 

Kate Shaw That’s right.

 

Melissa Murray Let’s put that on a shirt. Ashley.

 

Ashley Mizuho That’s the shirt right there.

 

Kate Shaw We have a question from another student wanting to get a head start on her legal education.

 

Listerner Hi Strict Scrutiny crew. This is Josie from Arlington, Massachusetts. I started listening to your podcast right before the Dobbs leak. I recently got my dad into it, too. Hi, Dad. Anyway, I was wondering if you had any recommendations for what I can do to learn more about Con Law as a homeschool of high school freshman.

 

Melissa Murray So, Josie, I just I love your energy. I love where your head’s at. I would encourage you just to enjoy high school. And there’s a lot of stuff that you should be reading in high school has nothing to do with Con Law. So read great books, read fiction like it. Really enjoy your life and be a well-rounded person. Josie But if you really must read something about constitutional law, I think there are some really fun books that you can think about. Like I again, I was a super dork, but I read that Kermit Hall book The History of the Supreme Court. One summer when I was in high school. I thought that was super fun. It’s basically like an encyclopedia with little entries that are alphabetized. That was really cool. I enjoyed that. I also read one Summer in addition to a lot of Danielle Steel. I’m not recommending that to you, Jose, but if you should find those books, they’re they’re in addition to Danielle Steel. I also read The Brethren by Bob Woodward and some other guy whose name also escapes me, which is sort of a deep dive into all of the internecine warfare at the court. And that was just so much to me that I was like, I have to go to law school because it’s going to be just like, that’s right, wrong. So those are be my suggestions. But there are lots of great books and they’re not about common law. And so, Josie, I encourage you to spend your summer doing that.

 

Kate Shaw There are some very good documentaries out there as well, some of which we have highlighted on this show. So there’s a wonderful documentary about Pauli Murray, who’s like a real legal hero of ours.

 

Melissa Murray My name is Pauly Murray.

 

Kate Shaw Yeah, that’s wonderful. There is a series on Netflix called Amend about the 14th Amendment that has, you know, star studded and features luminaries of the legal profession, including one Melissa murray, but many others as well. So those, I think, are actually really nice introductions to both individuals. You should know if you’re going to seek a career in the law and also constitutional history.

 

Melissa Murray More documentaries. Josie also by the creators of my name is Pauli Murray is the RBG documentary, which was really terrific, not by the makers of the RBG documentary. There’s also Created Equal: Clarence Thomas in his Own Words, which was apparently underwritten.

 

Leah Litman Is that funded by Harlan Crow?

 

Melissa Murray I was going to say, but I did watch it. It was on PBS and I watched it.

 

Leah Litman Is that the one where he says he likes vacationing in Walmart parking lots? I mean, yatchts?

 

Melissa Murray You could just hate watch it. It’d be fun.

 

Leah Litman So you recommended watching some fiction, right? So there you go.

 

Melissa Murray Science fiction. Like, you could hate watch it. It’d be really fun to watch, too.

 

Melody Rowell I think Josie should also spend the summer listening to Irrational  Basis Review. While she’s like, laying by the pool or walking the dog or something like that.

 

Melissa Murray Sounds fun. That sounds like a good time for you, Josie.

 

Kate Shaw For folks who don’t know it, that is our spinoff podcast. We did it about. Two years ago and then updated it last year. That’s just an introduction to a lot of kind of basic concepts in constitutional law. So it’s a very nice overview, give you a taste of whether you actually wanna go to law school.

 

Leah Litman And the Supreme Court is about to render, I think, like at least two of them no longer.

 

Melissa Murray Yeah. We had to go back.

 

Leah Litman Now would be the time to listen for some history. Get some history.

 

Melissa Murray So we also got this question from Sophie.

 

Listerner You’ve mentioned the significant number of Justice Thomas’s dissents when he was in the conservative minority there, very detailed format and how these are now increasingly centered in lower court cases. And I’m wondering what legal bearing they have even for that. He was purposefully working to build a library of these, and I hope you can discuss the current and potential impact and use. And alongside are the current liberal justices now actively doing the same? And what role can their dissents play in the future?

 

Leah Litman I mean, I think people want one of the Democratic appointed justices to use their dissents to invite people to rethink shaping the law in ways that Justice Thomas and Justice Scalia and Chief Justice Rehnquist did when they were in the minority. I think we haven’t seen that for a few different reasons. One, it might not just be like what some of the Democratic appointed justices think is within their wheelhouse or within their role. It also might be that they think that they are on a court where they still can occasionally win some votes. But those votes come from people who are really sensitive and have a lot of feelings. And so there is a limit on the extent to which you can criticize them. Yes, I’m talking about Brett Kavanaugh. Right. And also maybe the chief, the less so. But that could limit the extent to which you see dissenting opinions calling out the court in the most pointed terms or urging people to just reject everything the court is saying and invite wholesale reconsideration of what they are doing.

 

Melissa Murray I think the conventional wisdom is that dissents are writings for the future and that they can sort of stake out new ground over time. The court can sort of move to those positions. So I think the point that Lee is making, which I think is a really good one, would actually be a really good larva article, is whether dissents mean the same thing when you have such a small apportionment on the court, like when you have a 6 to 3 conservative supermajority, can dissents serve the same function that they might have in a 5 to 4 environment? I think that’s an open question.

 

Kate Shaw You have a bunch of different sort of theories or philosophies of what dissents should do, and one is if you’re going to lose anyway, you can try to lose and to limit the damage of the majority opinion by seeking to characterize it as not doing the most, but actually as being properly understood as more cabins or narrow things like that. But I’m not sure how. I mean, I think historically that that is a strategy that a lot of justices have used. I think query how effective it has been. I do think that will be a said at the outset about if you’re trying to broker the occasional like five four win as opposed to always being in a three justice sort of losing trio, maybe you have to hold your fire a little bit in dissent, but I wonder if that’s equally true about all of the Democratic appointees. Like, I think it’s probably right that if Justice Kagan is the one brokering the occasional deals with Kavanaugh and the chief justice, maybe she can’t, but I don’t know that that’s true in the same way about Justice Sotomayor and Justice Jackson. And we can we should say we haven’t seen much from Justice Jackson as a writer yet in this court. Like doesn’t seem impossible to me that she could be the one throwing the flames and writing for history. I mean, I was thinking about this with the Biden reelection announcement video. Can you imagine a dissent that actually has language in it that gets picked up in on the campaign trail that the president uses? We haven’t seen anything from this dissenting trio yet along those lines, but it might be really valuable to do that. So I hope that they find some way to do it, even though I understand the constraints.

 

Leah Litman Speaking of things that matter. Let’s hear from Diana in Australia.

 

Listerner Do oral arguments really matter? It sounds like a lot of the justices already have their minds made up.

 

Leah Litman I think oral arguments matter in some cases, but not others with respect to outcomes like in the non super ideologically significant high profile cases. I do think oral argument can matter as to outcomes. Now in the ideologically significant cases, do arguments matter? Not really. With respect to bottom lines, I don’t think. But they can affect how an opinion gets written and what reasoning gets five votes. Elites. That’s kind of my intuition.

 

Kate Shaw All right. Next up, here’s Chris.

 

Listerner I listen to Strict Scrutiny on my way to NASA’s Jet Propulsion Laboratory, where I’m an aerospace engineer. Justice Kagan famously said, We’re all textualist. Now, my question is, do you think that the liberal justices have more to gain by applying a textualist lens, or do we hurt ourselves by conceding from other methods of statutory interpretation?

 

Melissa Murray I love that Chris is an actual rocket scientist. No, Chris, like I know you’re listening to.

 

Leah Litman Neil Gorsuch is a word scientist. So.

 

Kate Shaw No, Chris is an actual rocket scientist, Leah.

 

Melissa Murray And Matthew Kacsmaryk is a scientist.

 

Kate Shaw C’mon

 

Melissa Murray Chris, this is all to say that you could probably write an opinion about mifepristone that we’d find more enlightening. So anyway.

 

Kate Shaw I mean, I think this is a good question, and I think it applies in many ways to kind of constitutional interpretive debates and originalism. Like I think that there is a view that the liberal justices have kind of ceded far too much methodological and interpretive terrain and maybe we just say limited to statutory cases for the moment by basically deciding to work within the paradigm of something that calls itself textualism and through doing so, have really expanded, I think, the contours of textualism. So everyone in the court uses a lot of sources, not just the words of a statute, as we’ve talked about every time we’ve discussed a statutory case. And yet I do think something is lost when you don’t sort of stake out a forceful critique of some of the shortcomings, the false representations made by proponents of textualism like Neil Gorsuch. And so I think it is unfortunate, and I would hope in the next generation of the to the kind of dissenting point that we have just been discussing. I think Elena Kagan famously declared that we are all textualist now and very famously disclaimed that position last term. And so maybe that marks a shift on the kind of liberal end of the court, and they are no longer going to suggest that we’re all just going to use the label because why do labels matter and do the work that we’re doing anyway, but actually sort of return to a fight about how to think about and do statutory interpretation.

 

Leah Litman And now onto the grab bag.

 

Melody Rowell Okay. So first, Jayden, who is a senior in college and is on the verge of committing to law school. Wants to know if you three were presented with opportunities to argue before the Supreme Court, would you take it? And if so, what area of the law would you like the argument to be focused on?

 

Kate Shaw To be clear, no one is asking, Jayden. Although I love the premisce of the question.

 

Melissa Murray Neal Katyal is taking up all of our arguments that we’re obviously entitled to.

 

Kate Shaw I wrote a long article a few years ago about invitations to argue which the Supreme Court occasionally issues, you know, once or twice a term these days. And it is sometimes to first time advocates that the court issues these invitations. And I think that by virtue of this podcast, if for no other reason, but probably anyway, we were not in any danger of getting any of those invitations. But if one came to me, yeah, I would argue a case before the Supreme Court, and I think it would be a fascinating education. But that’s the only circumstance in which I could see anybody interrupting me with a Supreme Court argument. What about the two of you?

 

Leah Litman I think I’d say no. Before the Supreme Court, just because I think my presence there would actively undermine the interests of my client and I would constantly on the verge or precipice, I would always be tempted to be like, Fuck you, Neal, that’s not me or something like that. And I don’t know whether I could keep it in. Now, is there an alternative universe in which I would love to? But actually, Neal, from here to eternity on habeas. Sure, right. But I just. Sometimes we make choices that close off future doors to us, and that’s okay.

 

Melody Rowell I would say there’d be 100% chance that you accidentally call one of them by their first names.

 

Kate Shaw Or coach possibly.

 

Leah Litman Coach.

 

Melissa Murray Answer your question. Coach. I’m with Leah. I think I’d have to wear a disguise. To argue in like a trenchcoat and a fake out of.

 

Melody Rowell The glasses with the mustache.

 

Melissa Murray I know what you like. Nothing to see here, folks.

 

Ashley Mizuo Next, we have a question from Sam Beck. An AI and machine learning scientist at General Motors wants to know how concerned should we be about this idea of common good constitutionalism, which sounds terrifying, but may not be the sort of thing any judge would ever act on versus conservative wish casting.

 

Leah Litman So common good constitutionalism is a theory about constitutional interpretation offered by, I think, Harvard law professor Adrian Formule that basically suggests federal judges should just do whatever they think is in the common good and promote the common good. Am I concerned about federal judges openly saying this is what I’m doing? No. Do I think that’s what a fair number of them do in some cases? Yes. So I think we’re kind of living in a world where in some set of cases, the justices priors are doing a lot of the work and their background conceptions about like what is good and what is a sensible way of ordering the world are driving the opinions, but they’re not saying that’s what’s happening. So that’s kind of what I think about that.

 

Melissa Murray Let’s hear a question from. Someone who I think is perhaps our youngest listener.

 

Listerner My name is Martha. I am eight years old. I listen with my mom because I want to be a Supreme Court justice. I want to ask what is your favorite Supreme Court case? I like Roe v Wade and Marbury v Madison. Thanks for making a strong woman led podcast. Bye.

 

Melissa Murray Okay, Martha, you are too fantastic for words. So those two, Roe versus Wade and Marbury are absolute bangers. Here’s another one that I’m going to put on your list because I think you’re actually going to love it. Not in a good way. My favorite Supreme Court case to teach is a case called Bradwell versus Illinois or Bradwell versus the state. And it is a decision that’s decided in 1873. Myra Bradwell wants to be a lawyer and she goes to the Illinois Supreme Court to get a law license. She has all of the qualifications. She’s done everything she’s supposed to do. And the court refuses her life sentence because the Illinois legislature apparently does not have a law that permits women to be licensed practitioners. And they also note that as a married woman, she’s ineligible to make contracts, which makes it hard for her to represent clients. Myra sues. She sues under the 14th Amendment and its privileges or immunities clause, arguing that the right to practice a vocation is one of the privileges or immunities of citizenship. And the court says that’s actually not true. They decided a case just the day before the slaughterhouse cases limiting the reach of the privileges or immunities clause. So Myra is out of luck with the court. But that’s not why we read Bradwell. The real meat of Bradwell is in this concurrence from a guy called Associate Justice Joseph Bradley. And if the majority’s interested in the Constitution, he’s not so interested in the Constitution. He’s interested in what he calls the Constitution of the family. And he says that he agrees with the majority. But the real reason why Myra Bradwell can’t be a lawyer is because her real job, her job that God gave her is to be a wife and a mother. And so there’s just a whole meditation on the role of women. And I love teaching this case not because this is what I aspire to, but because it really gives you a sense of how women were understood in the 1800s, even after the 14th Amendment, how hard it was to read women into the 14th Amendment. It also gives you a sense of the kind of benign paternalism that undergirded a lot of laws that limited women’s roles in public life on the ground, that they had better things to do, like raise their children or keep their home. So again, it’s a banger of an opinion, Martha. And if you’re interested in a strong woman led podcast, you got to be interested in that one.

 

Kate Shaw I love that it the date of the opinion 1873. It happens to be the same year that the Comstock, which you may have heard much in recent days, was passed. And it really tells you something about the milieu.

 

Melody Rowell Not a coincidence Martha.

 

Kate Shaw That law was passed.

 

Leah Litman My favorite opinions, Martha, are going to be the ones you write, overruling all of the things that Sam Alito.

 

Melissa Murray Good answer.

 

Kate Shaw That is really good. Let me just briefly say.

 

Leah Litman And world peace.

 

Kate Shaw If loving versus Virginia is not a case that you have read, it is a wonderful case that sort of marries both equality principles and liberty principles. It’s the 1967 Supreme Court opinion striking down bans on interracial marriage. And it is like that. There is a period in which the court is the best version of itself. And loving is one of the cases that emerges from that period. So if you want an antidote to Bradwell versus Illinois, maybe pick up Loving versus Virginia.

 

Melissa Murray Which is actually called loving attacks, loving and wife. So not quite there. But sure.

 

Kate Shaw Just the body of the opinion we’re talking about. Here’s a question from PJ who wants to hear our villain origin story?

 

Listerner I would love to hear the story about how you guys, you know, asked Crooked to buy you. Question Mark. I would just love to hear the behind the scenes story of of how that happened.

 

Leah Litman We had a podcast and it was basically unsustainable to try to do everything ourselves. I mean, there’s a reason why those podcasts are part of podcasts networks. It’s pretty difficult to find a way to make a podcast sustainable and have a producer of the caliber of melody. And we were making our own merchandise lines, running customer service, and there were all of these other things that we just didn’t realize other podcasts do in order to build audiences that made being a part of a podcast network both necessary and I think really helpful. And so we asked.

 

Melissa Murray Yeah, don’t ask, don’t get.

 

Kate Shaw There were some conversations ongoing with other kind of podcast networks, and then we sort of reached out to Crooked and were like, Hey, we are a legal podcast sort of thinking about joining forces with some larger entity, and things just proceeded like really beautifully from there.

 

Melissa Murray So ladies. Ask. Ask for everything.

 

Leah Litman Okay, so this next question might be my favorite. This is from. Natalia.

 

Listerner Given everything that happened with Justice Thomas and his fiancee friend, if a New York Times article were to drop about any of the other justices, who do you think that their fancy billionaire friend would be? Really curious for your answers.

 

Leah Litman I’m not 100% sure on this one, but I do think a part of my brain envisions that Justice Kagan would be friends with Jeff Bezos, his ex, Mackenzie Scott.

 

Melissa Murray Like, I love that. I love that. I really do. I do.

 

Leah Litman Thank you. Thank you.

 

Melissa Murray Was a period right after she was appointed where Justice Sotomayor was at some public event, like a dinner or something for Pearl DAP or something with Marc Anthony and J.Lo. And since then, I have like, she’s got to be on J-Lo’s Christmas card list.

 

Leah Litman Yes.

 

Melissa Murray 100%. I like.

 

Kate Shaw And vice versa.

 

Melissa Murray I hope so. And so I just love the idea of like Ben Affleck, J.Lo and Justice Sotomayor, like, just kicking it like always. Right.

 

Leah Litman Yes.

 

Melissa Murray I think I bet Ketanji Brown Jackson hangs out with cool people.

 

Leah Litman Oh, definitely.

 

Kate Shaw But doesn’t that mean not billionaires?

 

Leah Litman Right. Yeah. These might be mutually exclusive. Who’s a cool billionaire?

 

Melissa Murray I bet she hangs out with Michelle Obama.

 

Melody Rowell Not a billionaire?

 

Melissa Murray Or Beyonce. I bet. I bet she hangs out with Meghan Markle.

 

Melody Rowell Does she hang out with Meghan Markle?

 

Leah Litman Meghan Markle is not a billionaire.

 

Melissa Murray I don’t think you know that, Leah.

 

Melody Rowell Beyonce is worth a measly half bill?

 

Leah Litman Okay.

 

Melissa Murray Watch her actual billionaire. I don’t know.

 

Melody Rowell Oprah.

 

Kate Shaw Didn’t she say her household like isn’t that $1,000,000,000 in the elevator years ago like her plus J is a billion, right?

 

Melody Rowell Yes. Beyonce.

 

Kate Shaw That’s whole shit goes down theres $1,000,000,000 in elevator. Come on. Yeah, that’s like a billion.

 

Melody Rowell Jay-Z is a billionaire. You are correct. 2.5.

 

Melissa Murray That’s a lot of downloads. Wow.

 

Leah Litman Okay, I just Googled American billionaires. It’s like a bunch of white dudes who seem pretty weird, so.

 

Melissa Murray Checks out. Checks out.

 

Leah Litman Exactly.

 

Ashley Mizuo On a related note, Michael on Twitter wants to know, have you ever bought a tract of land from a Supreme Court justice? And if so, which one?

 

Kate Shaw We have no disclosure obligations as podcast hosts, Dear listener. And so that will remain between us and our. No, no.

 

Melody Rowell No, no, no, no.

 

Leah Litman I do not have the means to buy the kind of property that they apparently all own.

 

Melody Rowell Okay. Another question from Twitter is maybe the most important one we’ve ever received. Abby wants to know which Supreme Court justices listen to Taylor Swift and which era does each one fit best with.

 

Melissa Murray I’m sure that Coach Kavanaugh listens to it because he’s a father of daughters and they’re like swift age. I think so. I think he’s like, underplayed here. I think he’s.

 

Kate Shaw CBJ has confirmed. I think.

 

Leah Litman She does.

 

Melissa Murray She does for sure.

 

Leah Litman She dropped some lyrics in the.

 

Kate Shaw Moo court.

 

Leah Litman with Shakespeare where she was able to invoke bad blood.

 

Melissa Murray I just don’t think.

 

Kate Shaw Kagan mentioned.

 

Melissa Murray Kagan.

 

Kate Shaw Okay. Sorry. Yeah. So those are obvious. You’re saying Brett is I think a dark horse.

 

Melissa Murray I think I think he’s a dark horse and he probably does.

 

Melody Rowell I mean, Sam Alito is obviously it his reputation generally, if Steve Vladeck talks shit that I owe him nothing.

 

Leah Litman I just kind of refuse to give some of them eras. But for Justice Jackson and Justice Kagan, I would probably give Justice Jackson the Red era.

 

Melody Rowell That’s a good one.

 

Leah Litman Yeah. You know.

 

Melissa Murray I would give Justice Kagan like a folklore, like it’s like a little dark, like, you know, she’s gone through some stuff with, like, trying to make peace with these facts. Yeah. Yeah, I think that’s right.

 

Leah Litman Yeah. Yeah. No.

 

Melissa Murray Next step, Meghan from San Francisco Bay Area wants to know if we can hang out in real life.

 

Listerner And my question for you all is whether you would consider doing a tour similar to what the hosts of Pod Save America or Lovett or Leave it do and visit different cities across the country. I would love to see you all here in my backyard in San Francisco with a special guest. Just a suggestion, Rob Bonta, our first Asian-American A.G..

 

Melissa Murray These are all great suggestions, and I don’t need a lot of coaxing to get back to the Golden State. So whatever you’re pitching, I’m catching. Let’s go.

 

Leah Litman We would love to find a way to do more shows. It is a little difficult with our regular jobs to find days and times that work for all of us, but it is something that I think we are hoping to do.

 

Melissa Murray Stanford. Golden Gate, Berkeley. Davis. Let’s talk. We can come do like I want to. I’m ready to go to the Bay Area. Let’s do this.

 

Melody Rowell Okay. This next question came in from Twitter and it is definitely for Melissa. Do you believe that King Charles is actually Prince Harry’s father?

 

Melissa Murray I affirmatively do believe this because Princess Diana’s James Hewitt era was after Prince Harry was born. Everyone thinks that James Hewitt. It’s Prince Harry’s father because they both have red hair. But in fact, red hair runs in the Spencer family. And Diana was a Spencer before she became the Princess of Wales. And her sister, Sarah Spencer, also has red hair. So there’s a lot of like gingers in their family. There are also a fair number of ginger ish people in Prince Charles’s line. So if you see pictures of Prince Harry with his beard and his uniform, he looks a lot like Prince Philip did when he went to Antarctica in the late 1950s, early 1960s. So I really do think this whole idea that James Hewitt is Harry’s father is really spurious and just meant to savage the Ginger Prince. And I will not stand for it. The end.

 

Ashley Mizuo Another question that maybe for Melissa. What did Jon Lovett get on his LSAT?

 

Melissa Murray So this is a mystery, right? He talked a good game about his all set score but didn’t actually disclose it. He just said sort of vague things about how he had such a great LSAT score. And I don’t really know what that means. You know, I wasn’t questioning. I thought it was weird that he brought it up, but, you know, I didn’t want to it was his show, so I didn’t want to say anything. So but he’s never actually actually given me a number, so.

 

Melody Rowell All right. We’ve got a question from Instagram. That is just three words, skincare recommendations.

 

Kate Shaw Oh, another one for Melissa, I guess.

 

Melissa Murray No, this you all can participate. I’ve coached you well over the years.

 

Leah Litman We got participation trophies.

 

Melissa Murray You all have dewy skin. Again. I think you just whatever you do, you just got to do it consistently. So I don’t know what Sam Alito uses on her skin. Some people have suggested it’s very high end. Others have suggested that maybe he’s just patting an olive oil or something. Some people do that it’s actually very effective. And if you don’t break out to just pat olive oil lightly into your skin. I love true botanicals. True botanicals. Holler at your girl. I love that stuff. I think it’s amazing. I also use like Sarah V, which is a drugstore brand, so also very, very effective. I think there’s lots you can do. So many good skin care options right now. Jenny Cells also great. Like they have a really good eye cream for when your eyes are puffy. So I think that’s a great one. So lots of different choices. Do what works for you like and do what works for Sam Alito once he tells you.

 

Kate Shaw Have either of you ever used a manicure mask?

 

Melissa Murray Yes.

 

Kate Shaw So out em on and they’re very intense. And they do this thing where they kind of contort your face muscles and you look insane. But then you take it off,.

 

Melissa Murray Take it off and you look amazing.

 

Kate Shaw It’s kind of amazing for like two days. I mean, they’re intense. Our mutual friend Melissa, Rachel and I did this a couple of weeks ago, and yeah, so I think I recommend them.

 

Melissa Murray I love that. Like, I’m really actually mad that you did not include me.

 

Kate Shaw Okay, next time. Next time we’re going to do this with you. Honestly, I will do.

 

Ashley Mizuo Another one from Instagram. Just four words Favorite Taylor Swift song. I’m actually really excited for this question because I’ve been wondering.

 

Leah Litman Okay, it’s obviously the ten minute version of all too well, and specifically the version that she performed on Saturday Night Live. That’s the number one. And number two would be all the other versions of all too well. Tie number three is tis the damn season and then four is the field.

 

Kate Shaw I weirdly even though I love her more recent albums much better like I love ever Le Figaro of Midnight are my favorite standalone songs are kind of like old classics, like I Love 22 and I love We Are Never getting back together, Like I love those songs so much. And yeah, I think I’m going with those two.

 

Melissa Murray So my favorite Taylor Swift song is We Are Never, Ever Getting Back Together. I like that one a lot. I also like ANTIHERO and Lavender Haze. I like weirdly like Lavender Haze. I also like lover.

 

Melody Rowell I’m a champagne problems, girly, and I was also among the blessed who got to hear Death by a thousand Cuts is the surprise song in Dallas. And that was one of the best moments of my life.

 

Ashley Mizuo Good one. I’m so jealous.

 

Leah Litman Wait Ashley, what’s yours?

 

Kate Shaw Ashley, what’s yours?

 

Ashley Mizuo I think it’s Mirrorball.

 

Melody Rowell Are you okay?

 

Ashley Mizuo I am an older sister. Through and through.

 

Leah Litman Wait no I need to adapt mine. Okay. One, all too well, ten minute version two. What it could have should of three all other versions of all too well. Four. Tis the damn season. Five, Field. Okay now we’re set.

 

Melody Rowell That’s a good ranking.

 

Leah Litman Thank you.

 

Melody Rowell Okay we got another question from Instagram that says I am a divorced single mom of twins wanting to run for office. Is this a ridiculous dream?

 

Melissa Murray Now you want to be Katie Porter? It’s amazing. You should totally do it. We will like we support you. You should totally do this.

 

Melody Rowell And Justice Jill.

 

Leah Litman Exactly. I was going to say, or Justice Kurosaki, who ran as a single mom for Wisconsin Supreme Court, as she talked about on our episode in Wisconsin.

 

Melody Rowell There’s a great resource, run for something.

 

Leah Litman Yes.

 

Kate Shaw Yeah.

 

Melody Rowell Yeah. So check out the website. Run for something I. There’s a lot of great resources. If you’re interested in running for office, it’s a good place to start.

 

Melissa Murray I mean, but honestly, that was like the easiest question to answer. You should totally do this, like leave no power on the table. You should totally do this. Don’t negotiate with yourself.

 

Kate Shaw And actually, the founder of Run for Something and did a great interview on the Ezra Klein show sometime in the last year. That’s a very nice if you’re a podcast listener anyway one our distillation of a lot of the kind of on the ground considerations that go into running for if it’s a start, local office makes sense in any way. I think that would be a good way to spend an hour. If you’re really thinking about this, listen to that conversation.

 

Ashley Mizuo Okay. And then last question. What do you think each of the justices eats for breakfast?

 

Melissa Murray Justice Alito eats unicorns.

 

Leah Litman He just drinks their blood, Melissa. Come on.

 

Melissa Murray That’s what I meant.

 

Kate Shaw I mean, a justice like the New Yorkers, I feel like are the promises. There aren’t really good bagels in D.C. And so I don’t know, like if Kagan and Sotomayor can find good bagels in Washington, D.C..

 

Melissa Murray I don’t think Sotomayor eats bagels. I think she’ll occasionally have like a piece of toast and some fruit.

 

Kate Shaw I feel like KBL is like a smoothie breakfast drinker, like maybe a green juice.

 

Melody Rowell A green.

 

Melissa Murray I can see that.

 

Leah Litman Yes.

 

Melissa Murray Brett Kavanaugh definitely drinks green juice and tells you about it.

 

Leah Litman No, he drinks like a protein shake. Come on.

 

Melody Rowell But he’s healthy. I think.

 

Kate Shaw Like eggs. I think eggs and bacon. I think he eats like a big greasy breakfast.

 

Leah Litman With a protein shakes with his bros from the gym. Come on.

 

Melody Rowell Kavanaugh is the big greasy breakfast to, like, sop up all the beer, right?

 

Kate Shaw Totally.

 

Melody Rowell He’s like the hunger.

 

Kate Shaw Also the guys from the gym. Sorry, I don’t to be mean, but, like, what evidence of gym going are you seeing under that robe?

 

Leah Litman He thinks of himself as the bro, you know?

 

Kate Shaw Yeah, but like, going to play ball. I don’t think he’s, like, lifting weights.

 

Melissa Murray I bet Amy Coney Barrett goes to her CrossFit box and then comes home and makes a protein shake. She drinks a protein shake? Yeah, for sure. What do you think the chief justice is eating? He is eating oatmeal. He’s totally eating oatmeal.

 

Leah Litman Like. Bland, unseasoned.

 

Ashley Mizuo With raisins, maybe.

 

Melody Rowell No, too much color, no raisins.

 

Melissa Murray All right, so we move on to mean tweets.

 

Leah Litman Let’s do it. These aren’t actually mean tweets. There are some mean reviews that I just screenshotted and I mean tweets. I adjusted my notifications a long time ago where I just don’t get notified of tweets by people I don’t follow because it just made the platform unusable without that. So this is all I’ve got. I can describe the tweets that people have screenshot about me that have been sent, but I’m probably going to get the wording a little off. Okay. So review one. Hmm. Leah’s constant funny error quote Interruptions are not all that funny and her sarcasm gets the discussion off. More times than not, Leah adds little to the legal discussion and attracts with her comma, frankly, comma, tired and repetitive humor. That’s one..

 

Melody Rowell Did I tell you guys.

 

Kate Shaw I so livid. No. Where is this? This is a tweet somebody tweeted us?. Oh, my God. I’m so glad I don’t read them.

 

Leah Litman I know. Unfortunately, I get notifications of them to our Gmail account. Did I tell you guys about the speech I did to the Michigan Law Review Women where I thought it would be funny to do like mean tweets thing. And I got up and I read like 3 million things and they all looked so horrified. I just stopped and was like, Oh, I guess.

 

Kate Shaw Wow, they were that bad?

 

Leah Litman Yeah.

 

Ashley Mizuo So.

 

Kate Shaw Oh my gosh.

 

Ashley Mizuo That’s one.

 

Melissa Murray So I’m going to read one. This is literally just a couple of days ago from someone who wants to call themselves Alchemist but has spelled it with a J. So just that just the setup. The subject line is cattiness undermines their intelligence slash argument. I’ve listened to this podcast for a few years now and I absolutely love their insights into the court. The hosts are excellent guests on other podcasts such as PSA, Kate is a welcome voice of reason. Leah and Melissa’s constant alcohol jokes and teenage humor distract and derail the show. Both Leah and Melissa are unprofessional and lack seriousness for important discussions, such as the Dobbs decision and its fallout when they are hosts, but can demonstrate it when they are guests on other podcasts. My final straw is the frequent interpretation of what people say during clips and the pleasure Leah and Melissa get from their meanness vibes such as Trump style, derogatory nicknames, and worse than Alito or Gorsuch whining. I mean. Sir,.

 

Kate Shaw I am glad I stopped reading these and looking at them. They got the great God, but we still got a one star review. It’s not enough to save our numbers. Oh, my God.

 

Leah Litman Part of why, you know wanted to do the podcast. Speaking of villain origin stories, like in the tone and manner that we did, is there is this discomfort with women who have senses of humor and make jokes. And there is a felt impulse to like, characterize that as like bitchiness or cattiness or mean girls ness rather than when guys do it. It’s like irreverent and edgy and funny. Plus, there’s just a fucking difference between punching down and punching up.

 

Kate Shaw I’ll read one now. I love this podcast, but Kate talks too fast most of the time. Today she started out at a good tempo, but after the first case, her speaking speed began to hurtle far too fast again. Yeah.

 

Leah Litman Yeah. That’s just not the same Kate. Sorry.

 

Kate Shaw No, it’s so. I am going to pull out though the two examples of specific appearance related messages that we got, both of which I think were in a constructive spirit. The point of a podcast. There’s many points of the podcast. One I thought of the benefits of hosting a podcast was that we actually wouldn’t get attacked for our appearances, right? It’s just our voices.

 

Melissa Murray Nope. Turns out.

 

Leah Litman Never thought that.

 

Kate Shaw That’s very well, I was obviously naive. Anyway, so this was one that Melissa was excluded from. I’m really sorry you’re written out of this exchange, Melissa. It was just an email to Leah and to me in which a listener diagnosed both of us with pretty serious cases of rosacea and recommended a course of treatment and a very, very detailed email that again, I think was really constructive. But I’ve been to the dermatologist a lot, like, I’ve got a lot of moles. I have to get checked out and no one has ever diagnosed me with rosacea. I don’t really think I have rosacea and I don’t think I need to take all the medications that this listener suggested was very striking IMO. The other one, I don’t think I said to you guys in preparation for today, but this was also somebody who had seen me somewhere and sent me a long email recommending their plastic surgeon because the listener decided I was a perfect candidate for a very sort of low impact, not terribly invasive surgical procedure to get my ears attached to the side of my head because they stick out too far. There was, again, constructively intended email, but it was like I do actually have pretty sticky out ears. But the beautiful thing about aging is one cares so much less about this and I hadn’t thought about it in a long ass time. And then this email came in and I was taken back to this incredibly young place of like having these big floppy ears that people would like constructively.

 

Melissa Murray I guarantee the person who wrote that literally looks like a gremlin, so like, forget them. Can I read one that I do like? Cause it’s actually okay.

 

Kate Shaw Yes.

 

Melissa Murray I love Melissa. This is by the queen of Fort GREENE, five stars. I love Melissa. And it’s serious. Why are you so delightful on MSNBC? Whip-smart. Such a cutie. I’ll have you commit adultery. I don’t care. I love that one. Okay. Oh, you know, it’s.

 

Kate Shaw So similar to my plastic surgery note.

 

Melissa Murray It’s literally right next to one called SCOTUS Mean Girls.

 

Leah Litman But my point, it’s.

 

Melissa Murray Gone downhill somewhat with too much sarcasm and attempts at wit. It’s become less informative over time as they attempt catchy slogans. The mean spiritedness has become offputting. Update Still boring. Still. On balance, the sarcasm is crunchier than ever. Very hostile towards religion. Very sarcastic all the time about everything. Insightful commentary. When they leave out the mean spiritedness, they do a disservice to their listeners by not even attempting to present any alternative to their strong opinions. The hostility is palpable.

 

Leah Litman You should hear all the things that don’t make the podcast right. There is still an inappropriate wildness life. If you would be,.

 

Melissa Murray You would clutch your pearls even harder, my friend. Update Still always hysterical, sarcastic and painful to listen to. More nuance can be found elsewhere. The vocal fry is just unbearable.

 

Leah Litman Speaking of Vocal Fry, a classic sample review is Leia’s vocal Fry is more than I can handle. I struggle to understand how someone who speaks like that can give college lectures. I’d have to drop her class.

 

Melody Rowell This is how you do it. Drop it. I don’t take.

 

Leah Litman This how I fucking talk. This is how a woman’s voice sounds.

 

Melissa Murray We should say like we’re just pulling out the shitty ones. But there are some really lovely ones. You all are so nice to put these nice comments. Here’s one from Maria Rodriguez from July of 2022. You are three incredible women. I’m so thankful for this podcast and the honest presentation. You’re welcome, Maria. We love you, too. Dick also says, We are so lovely and this person loves the podcast so, so much and learned about it through Chris Hayes, who, as you may know, is a friend of the pod.

 

Melody Rowell Mr. Kate Shaw.

 

Kate Shaw Mm hmm.

 

Leah Litman There’s also the one that called us an abortion of a podcast and three pseudo intellectual harpy lib chicks.

 

Melissa Murray Hell, yeah. But was it a self-managed abortion podcast? That was not a yes. It was in the description.

 

Leah Litman Anyways, we really appreciate your constructive feedback emails as well as kind notes and reviews of reaching out because this is just, I guess, part of the business.

 

Kate Shaw There is something about the psychology of doing this where I this is why I stopped reading the Apple reviews. Like even if you have ten great reviews and one terrible one, you feel just entirely shitty, like the ten are completely erased by the one bad one.

 

Melissa Murray I don’t.

 

Kate Shaw Okay. That’s that is good.

 

Melissa Murray Like fuck these people. I mean, like everything ain’t for everybody. Like, you don’t have to be your cup of tea. It’s totally fine. Like, you can go listen to the Heritage Foundation podcast. That might be your speed. Cool. Like if you like it, I love it.

 

Kate Shaw Don’t leave us one of these reviews on the way out. No, but my point my my point is, if you do like the podcast, be like Maria and just drop us a review that says so.

 

Melissa Murray Yeah. Thank you so much for writing in with all your grab bag questions. Thank you for leaving us. Helpful, constructive, positive reviews. We really appreciate it because like we are actual people and.

 

Leah Litman Women, we’re.

 

Melissa Murray Doing this, you know, we are actual women doing in our spare time. And so, yeah, like if you like it, we love that you like it. If you don’t like it, move along. We’re not losing sleep over it. And you shouldn’t either. Like, no need to be a dick. Keep moving. Keep it moving.

 

Leah Litman But I think like also on another slightly more positive note about all of this, like, part of the point is everyone makes choices about the things they want to do and like what they’re okay with. And you find people who’s judgment you trust and then you just kind of do what you want to do and like what you think has to be done. And that’s just kind of it.

 

Melissa Murray So basically, are you a Meghan Markle person or Kate Middleton person? Like if you’re a Kate Middleton person, that’s cool. We’re probably not going to be best friends. It’s cool tho

 

Leah Litman This is going to generate some negative tweets and reviews. I’m just going to tell you.

 

Melissa Murray Melody, take it out.

 

Kate Shaw Bring them on. No, we stand by that. All right. So we should land this plane.

 

Melody Rowell Okay.

 

Melissa Murray Is it a private jet? We can just keep flying.

 

Kate Shaw It refuels automatically. Something like that.

 

Melissa Murray It’s self managed.

 

Kate Shaw This is not.

 

Melissa Murray It’s a self managed private plane.

 

Kate Shaw Not in any kind of luxe accommodations. We in economy. All right, come on down. Don’t forget to follow us at Crooked Media on Instagram and Twitter for more original content hosts takeovers and other community events. And as just discussed, if you are as opinionated as we are and if you like our podcast and only then consider dropping us a review.

 

Melissa Murray Strict Scrutiny is a Crooked media production hosted and executive produced by Leah Litman, Melissa Murray and Kate Shaw. It is produced and edited by Melody Rowell with Audio Engineering by Kyle Seglin Music by Eddie Cooper, Production support from Ashley Mizuho, Michael Martinez and Ari Schwartz, and digital support from Amelia Montooth.

 

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