Break Glass in Case of Emergency | Crooked Media
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July 11, 2022
Strict Scrutiny
Break Glass in Case of Emergency

In This Episode

It was a long term. It’s over. Leah, Melissa, and Kate recap what all happened, what we maybe learned out of it, and what we have to look forward to.

 

TRANSCRIPT

 

 

Melissa Murray: [AD]

 

SHOW INTRO

 

Melissa Murray: Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and what remains of the law and legal culture in the wake of the term we have just experienced. Where are your hosts? I’m Melissa Murray.

 

Leah Litman: I’m Leah Litman.

 

Kate Shaw: And I’m Kate Shaw.

 

Leah Litman: And welcome to our term wrap up slash recap episode.

 

Melissa Murray: Slash post mortem.

 

Leah Litman: Honestly, given what lies ahead for next term, it just feels like we are looking ahead at more slashing and burning. So. Hard to know exactly how to describe what we just experienced. But this does feel like something of a break glass emergency moment. We have been doing this podcast for three years now and there have been some dark moments along the way. But there has not been a term like this one, not just in the last three years, but I think also in our lifetimes.

 

Kate Shaw: And Melissa and I are older workers, so it has been a while.

 

Melissa Murray: Speak for yourself.

 

Kate Shaw: I do feel aged like 20 years in the past month. I mean.

 

Leah Litman: Yes.

 

Melissa Murray: You know who hasn’t aged though, Kate?

 

Leah Litman: That dang guy.

 

Melissa Murray: I was thinking moist and dewy were the adjectives I was going to use.

 

Kate Shaw: The drinking of the blood of his enemies like just gives him eternal youth. That’s obviously what’s happening.

 

Leah Litman: We are speaking, of course, of Justice Samuel Alito, who we repeatedly.

 

Melissa Murray: I thought you were talking about Voldemort.

 

Kate Shaw: Pick your poison.

 

Leah Litman: Who we repeatedly compliment on his excellent skin.

 

Kate Shaw: And that’s the only thing we repeatedly compliment him on ever. Okay, so maybe let’s start by ticking through what happened in the last week of the term, and it is just really an astonishing amount when you sort of list it out like this. So in the span of one week, from June 23rd to June 30th, the Supreme Court in Dobbs overruled Roe versus Wade and set in motion the near-total prohibition of abortions in many places in the country, including in some places for children who are raped and become pregnant as a result of that rape that was set in motion immediately upon the court’s overruling of Roe. Next in line, Cerpa versus Bruin. The court struck down concealed weapons licensing regimes in states in which a quarter of Americans reside, which will definitely make it easier to carry guns around crowded places. In West Virginia versus EPA. The court severely restricted the EPA’s authority to regulate greenhouse gas emissions and basically announced a supercharged version of a doctrine it had previously talked about, but never really in this way. That will likewise make it much harder for administrative agencies to address new or developing problems in climate and beyond. In Castro where to dramatically undermined tribal sovereignty in Vega versus Teko dramatically undermined Miranda in Kennedy versus Bremerton, basically tore down the wall between church and state, at least when it comes to public schools. The court also came pretty close in Texas versus Biden to directing President Biden to continue the Trump era, remain in Mexico policy, thereby basically replacing the president with the federal courts when it comes to setting immigration policy and engaging in foreign relations.

 

Leah Litman: But because they didn’t do that and only installed the federal courts to oversee the entire administrative state in West Virginia versus EPA, that means we have a moderate institutionalists court. Right?

 

Kate Shaw: The fact that this was even on the table has to be, as I just put it, on the list of insane things that happened. And.

 

Melissa Murray: Well, the list of insane things that happened is essentially Leonard Leo’s to do list.

 

Kate Shaw: Right.

 

Melissa Murray: And maybe they’re leaving replace the President with unelected federal judges for next term. So just so there’s more to do.

 

Kate Shaw: Yeah.

 

Melissa Murray: And that’s just the last seven days. The last seven days of this term. I mean, I can’t even wrap my head around that. Imagine having that many consequential things on your to do list. Like, I put things on my list like, you know, get staples. things like that, just so I feel I’ve accomplished something, but I.

 

Leah Litman: Walk my dog.

 

Melissa Murray: Yes. Imagine having, like, literally dismantle democracy on your to do list and being able to check it off with the help of the Supreme Court and it 6 to 3 conservative supermajority. So listeners, we did some pretty in-depth overview of many of these cases as they came down. And so today we’re going to discuss this last year in a more thematic way. We’re going to hit on some of the things we didn’t have a chance to cover as we did those recaps and previews. And we’re going to touch a bit on what’s on deck for next term. So again, previewing the rest of the to do list. And we’re also going to talk about what we have planned for you this summer. So we’ll talk a little bit about what we’re going to do about all of this. So let’s go.

 

Kate Shaw: Okay. So first top line takeaway for the term has to be, you know, credit and all credit to Leia. This is the YOLO Court. This is a court in an incredible hurry. So last term, you remember we were doing this recap and we sort of used a metaphor of an express train versus a local train. Right? All the conservatives we knew were going to the same place. But we had there was a real question about whether they were going to take a slow, incremental and gradual path there or just like hit the accelerator as fast as humanly possible. The trains have accelerators. Have I make transportation metaphors anyway, basically to go as fast as possible to the destination. And I think it’s pretty clear now we are on the express train, right? So.

 

Melissa Murray: Oh, we’re definitely on the A-train between 59th Street and 125th.

 

Kate Shaw: Yeah, it is. And yeah, yeah. And you’re like, oh shit. Yeah, that was going to get off on the Upper West Side. But now that 100/25 like that,.

 

Melissa Murray: No you’re not getting bagels. You’re not stopping at Barney’s.

 

Kate Shaw: You’re, you’re, you’re pretty far Uptown. Yeah. So that’s absolutely the answer. So there is this rock ribbed conservative supermajority, and they are not just luxuriating in that new configuration, taking their time deliberately focusing on a small group of targets, calibrating the change they make over time to say minimize chaos and maybe insulate themselves from public reaction. All these things, you know, I at least thought were possible, but they’re not. They’re trying to do it all as quickly as possible, as aggressively as possible, without any seeming concern regarding kind of public reaction and public pushback. And that it feels like any playbook that one might have consulted about sort of historical relationships between the Supreme Court and public opinion and the political branches, reaction and those things, tempering the court’s eagerness to move the law quickly, none of that applies anymore. So I feel like we’re in wholly uncharted terrain here.

 

Melissa Murray: Can I say something about this because with regard to abortion and Dobbs, I had said earlier in the term, like, the one thing that I think might give this court pause is the fact that there’s a midterm election coming up in November. And I doubt the chief justice wants to see millions of Americans going to the ballot box that throws death on their lips. Like what a naive idiot I was right. I’ll say it like I was like, surely they have to care about the political optics of this. They don’t. And then I really credit you, Leo, with this. The reason why they don’t, as you reminded me, is that there is no way to register your objections if the Supreme Court has already helped to dismantle the infrastructure of democracy. So again, check, check like they actually insulated themselves.

 

Leah Litman: Don’t have to worry about those votes in midterm elections.

 

Melissa Murray: Those pesky voters.

 

Leah Litman: We’ll make it unlawful to vote. Boom. Lest you think that’s an exaggeration, we will discuss the Wisconsin Supreme Court’s decision toward the end of the episode.

 

Melissa Murray: Again, we’ve often said, like, you know, people don’t say when they were wrong. Like, I will actually say I floated the possibility early on in this term that maybe the threat of political blowback would be enough to restrain this court. No, no. This is not a court capable of restraint, in part because they’ve cut the cords on all of the restraints themselves. So. Yeah, so I’m just. My bad.

 

But it was a totally justified prediction based on the way the court has historically behaved. And it’s just that this court has decided to radically break.

 

Melissa Murray: No, no, no. You can cancel me.

 

Kate Shaw: No one’s canceling you and I think that was justified. But I think it is right that they have they have changed the script so dramatically. And, you know, we’re saying, you know, there’s no way to actually register your objection at the ballot box and to skip ahead to the end of the episode. We’re going to come back to this point, and we are in no way saying that it’s not unbelievably important to continue to register your objection at the ballot box here. But the court has absolutely made it more difficult for those popular preferences to actually be translated into electoral success. And that is an enormous problem.

 

Leah Litman: Exactly. We will repeatedly underscore that, notwithstanding the court’s best efforts to, you know, breed cynicism and disillusionment with the political process and our institutions, and again, to just like raise the obstacles to voting and the standard for actually like registering preferences, allowing a political majority to win political power. It is so important to continue voting and get other people to vote as well. Okay. So second theme is this term was a million years, a million years long, like every day it was the 30 Rock. What a week. LEMON It’s Wednesday. Me like, every single day. Every single week. I mean, think about how this term started last summer. It started with the court invalidating the CDC eviction moratorium.

 

Melissa Murray: I had forgotten about that.

 

Leah Litman: Oh, Melissa, wait until you hear the story I am about to recount. And then Texas. SBA. Like, remember how in the dead of the night the court just refused to do anything, allowed Texas’s SBA to go into effect? That was the law.

 

Melissa Murray: That was back when I was a younger worker.

 

Leah Litman: Texas’s SBA is the law that prevented abortion providers in Texas from providing abortions more than six weeks after a person’s last period. After the court allowed that law to go into effect, Justice Alito went on an angry tirade about how Adam, Serwer, the wonderful, you know, reporter at the Atlantic was unfairly attacking Justice Alito on the court for nullifying Roe, which he, Justice Alito, definitely did not do. And then.

 

Melissa Murray: Yet.

 

Leah Litman: Exactly. Exactly.

 

Melissa Murray: Get the timing right Adam. I hadn’t done it yet.

 

Leah Litman: And then, you know, Justice Alito gave that deranged enemy speech accusing everyone who criticized him, you know, of being unfair and mean toward him. And they were the real threats to institutionalize and our institutions. And that was the beginning. That was the beginning of this term. And the entire the entire arc of that storyline, like Texas. SB, Justice Alito’s rant, the Dobbs Leak, you know, the ultimate release of the opinion. And Dobbs just perfectly encapsulates this theme and trend we seem doomed to repeat for eternity, where, you know, Republican appointed justices and Republican commentators are talking heads, as well as some supposedly liberal one say, what are you talking about, you crazy libs? We’re definitely not doing that crazy thing and we definitely have not done that crazy thing. Yeah. And then all of a sudden it’s like, yeah, okay, we did that crazy thing and it’s fucking awesome. And you must respect us and treat us with deference and tell us how awesome it is. Libs like that’s the meme that was this year that, that is the ark.

 

Melissa Murray: When you put it like that, Leah Oh my God. Yeah.

 

Kate Shaw: And that’s the cycle that we are trapped in. This is the bad place.

 

Leah Litman: Yes.

 

Melissa Murray: The Groundhog Day of grievance.

 

Kate Shaw: Yeah.

 

Leah Litman: Yes.

 

Kate Shaw: Okay. So also casting our memory back and this is like a little waltz down memory lane from this term. You remember it was also at the beginning of this term that mask gate happened. Remember, the justices returned to the bench and Nina TOTENBERG reported that the reason Justice Sotomayor was not attending argument, she was telephonically participating, even though she was in her chambers in the building, was because some of her cousins.

 

Melissa Murray: Nina would not want you to say telephonically.

 

Kate Shaw: Well.

 

Melissa Murray: She does not like that word.

 

Kate Shaw: I don’t really understand her objection there. But it’s we can we can return to that. She was, I don’t know, calling in, zooming in. She was participating remotely in oral argument. Yes. From chambers, though, like down the hall. And the reason Nina reported was that Justice Gorsuch, who Justice Sotomayor typically sits next to, refused to wear masks after the chief suggested in some fashion that the justices wear one. So that all happened. We then had the OSHA test or VACS case in which the court, remember, scrambled to set oral arguments in the first week of January. So, you know, despite Alito’s rantings, the court actually seemed a little bit to respond to public criticism of the court’s incredibly active summer on the shadow docket, in particular the COVID shadow docket. So heard those arguments and then a week later decided that OSHA lacked the authority to require large employers to have their employees test or get vaccinated because COVID isn’t just a workplace hazard. I mean, the logic was so bad, I had to kind of go back to the opinion and remind myself that’s literally what the court held. But it is.

 

Melissa Murray: I’d forgotten about that too, because COVID is over now. Anyway, another theme for this term, and it’s reprising a theme that we have highlighted in previous term recaps. But stare decisis is for suckers, which given the big story, decisis is for suckers. Energy. We got this term I think we have to expand it to sorry sizes is for suckers and precedent is for punk’s. Because like, yeah I mean just make it bigger because they, they certainly made it bigger. But we also saw a new theme. Statutes are for suckers, too. So in her final blistering dissent of the term, Justice Elena Kagan walked back her famous line, We are all textualist now and said that this court is only textualist when textualism suits its preferred outcomes. And she specifically noted that when textualism would lead to upholding a claim of administrative authority, the court just does something else. And I think we can encapsulate this theme by saying not textualist, but textualish.

 

Leah Litman: Oh, I like it.

 

Melissa Murray: Yes, I like it.

 

Leah Litman: Textualist.

 

Melissa Murray: Yeah, textualist.

 

Leah Litman: And we saw this, you know, not just in the major E.P.A. climate case, but also the court’s decision in Cummings about whether emotional distress damages were available for certain types of discrimination claims there. You know, there’s a pending petition for rehearing that says the court didn’t even acknowledge or account for the current updated correct text of the statute. This is also evident in Justice Alito’s and Justice Thomas’s writings in federal criminal cases, where they would urge the courts to just discard all cases interpreting federal statutes when those cases would lead to the defendant winning. In particular, I am thinking of Taylor.

 

Kate Shaw: Okay. Another theme of the term is that I think it is now crystal clear that Amy Coney Barrett is no moderate centrist. I’m not sure we really need this much evidence of course when she is appointed.

 

Leah Litman: Kate, this can’t be true. This cannot be true. I was promised there was a moderate institutionalist court, a three.

 

Kate Shaw: Three, three.

 

Leah Litman: Block of moderate institutionalist, that she was very, very different from Justices Thomas Gorsuch and Alito, and that as a liberal, I should support her because reasons.

 

Kate Shaw: Because feminism, I think, is one reason.

 

Leah Litman: Yes. Also feminism. I forgot about that one.

 

Melissa Murray: Femin-ish.

 

Kate Shaw: Oh, you’re on a roll, Melissa. So this is our first full term with her on board. And the data is pretty clear that, no, this is no moderate, centrist justice. This isn’t even a Roberts Kavanaugh style justice. Not that those two are moderate centrist.

 

Melissa Murray: Gaslighting conservative.

 

Leah Litman: Right? Yeah.

 

Melissa Murray: But we’ll get there just in a Dotson, not a Tesla.

 

Leah Litman: Yeah.

 

Kate Shaw: No, she’s definitely in that Tesla.

 

Leah Litman: We’ll get there at 55 miles an hour, not at 65 miles. So one kind of category of evidence for this is, you know, the court’s major decision. And Castro who where to versus Oklahoma, the decision basically clawing back a lot of the court’s foundational cases on federal Indian law. You know, that decision undermined tribal sovereignty by expanding states authority over tribal lands. And I think what that decision also suggested is that she is very influenced by campaigns on Fox News, because that was the campaign that Oklahoma basically launched against the court’s decision in McGirt versus Oklahoma that reaffirmed the existence of reservation boundaries. So, you know, that piece of evidence is there.

 

Kate Shaw: Definitely. And I think in addition, we have both Patel versus Garland and Shupe versus Twyford. Those are both cases in which she was part of a five justice Republican block with Gorsuch and the liberal justices in dissent, in both cases ruling against an immigrant in removal proceedings and a defendant in habeas proceedings. So she’s perfectly happy to supply the fifth vote if there are swing justices in the conservative bloc on particular issues. It’s pretty. Here they are. Roberts and Kavanaugh and Gorsuch. I mean, in a very small subset of I just.

 

Leah Litman: Do not want to refer to any of those justices as swing justices, because I feel like that moniker was used to refer to justices whose votes were frankly like up in the air, who you didn’t know how they were going to rule on particular issues in particular cases. Whereas I feel like going into this term and even before we heard the arguments in these cases, it was like, well, obviously Justice Gorsuch is going to be with Castor who where to, you know, in Castor who where to. Obviously, the chief and Justice Kavanaugh are going to say this Fifth Circuit remain in Mexico decision are two and say like they’re not swing justices in the sense that like.

 

Melissa Murray: There’s a strange bedfellow justices.

 

Leah Litman: Yeah.

 

Kate Shaw: I guess I’m not sure about, but. But Gorsuch and Patel and Shupe versus Twyford, those I think we’re not necessarily predictable going in. So maybe, maybe we should say occasional crossovers. Is that fair? Because I agree. Like, I think that they sometimes vote against the conservative bloc that will always contain Alito and Thomas and then some rotating cast of characters. Typically all of the other four, not always all of the other four. And they will occasionally crossover. But I guess my my big point here is that Barrett really actually doesn’t seem to be in there ever crossing over category. It’s really just Roberts and Kavanaugh and Gorsuch on different issues.

 

Leah Litman: So there were also some revealing cases that underscore, I think, that point. So there is Torres, the sovereign immunity case in which she voted with Justices Gorsuch, Alito and Thomas for a very muscular notion of state sovereign immunity that would basically immunize states from lawsuits for violating federal laws when those lawsuits are brought by private citizens. There was also Nance versus Ward. Again, she was in the dissent minority in that case, together with Justices Gorsuch, Alito and Thomas. In that case, she would have said People who are challenging how the state is going to execute them must use a procedural mechanism in which they, you know, are definitely going to lose, basically forcing them into a losing procedural maneuver. And so, just again, in the spirit of Melissa, your mea culpa, you know, revisiting some things you have said, I got an anonymous comment that I think is very well taken in which in our jobs episode, you know, I provided some of my feelings about the self-designated liberals and pro-choice commentators who, you know, supported the nominations of Justices Kavanaugh, Gorsuch and Barrett. And someone pointed out to me that maybe I spent a little bit too much air time on the person who testified in support of Justice Gorsuch. Given that Justice Gorsuch, his confirmation didn’t really change the composition of the court and the fact that, as we have just pointed out, Justice Gorsuch does seem to have like somewhat independent views on issues of federal Indian law, as well as in some criminal issues, or like immigration law matters as well, whereas the same cannot be said of Justice Barrett So I point well taken. Anonymous commentator.

 

Melissa Murray: You’re canceled.

 

Leah Litman: Yeah. Again, like well, I am willing to admit when some things I said need to be revisited, unlike, say, some men’s. All I will say on that point.

 

Melissa Murray: While we’re just copping to naivete or mistakes that were made, I mean, ours are pretty minor. I mean I like that was a pretty minor mare culpa Leia and expecting the court to be attentive to an election is also pretty minor I think. Anyway, back to themes. So another theme that I think characterizes Justice Barrett’s first full term on the court is that in the areas where it counted and the areas where she had the opportunity to supply a crucial vote to check something off of that Federalist Society to do list SB eight Dobbs Bruin Campaign Finance Religion. Justice Barrett was in lockstep with the conservative bloc the whole way. There was no wavering, no departures. She had some really interesting colloquy at oral argument. I mean, I was astonished by this in the Carson versus Macon oral argument, like I never in a million years expected young life to enter the chat. And it did. And I’m still thinking about that.

 

Kate Shaw: You know, it’s so interesting. Can I just all those cases you just mention Melissa SB eight, Dobbs Bruin Cruise versus FEC, the campaign finance case, the big religion case is can Kennedy and Carson? I don’t think she said I think she wrote in any of them. Interesting.

 

Melissa Murray: She didn’t.

 

Kate Shaw: She definitely didn’t write any majorities. She definitely did write a dissent because she wasn’t in the dissent. But I mean, look, she’s not like shirking she’s working on cases. But it’s it’s pretty interesting that she is like just quietly supplying the required vote in so many of these cases. I mean, some of them it’s the sixth and not the fifth vote, but not really saying anything like in a written opinion of her own.

 

Melissa Murray: I could say something, but I won’t.

 

Leah Litman: I am also restraining myself. Listeners, Let Your Imagination Run Wild. Another theme that we have kind of alluded to, or I think some of the prior themes relate to, is this idea of a jurisprudence of victimization and grievance. And I’ll try to explain kind of what I mean by this,.

 

Melissa Murray: Grievous Prudence.

 

Leah Litman: Yeah, Grievous Prudence. I love it.

 

Kate Shaw: Our next article, you guys.

 

Leah Litman: Yes. So honestly, this actually relates to an article that I have coming out in the fall, although it’s about a more narrow subset of cases than the point I’m going to make here. So part of what I think is going on in these cases and I’ll describe the like what’s going on in a second is. And this relates to the idea that the court, just like it doesn’t really care about public opinion is there is now this alternate universe that exists, you know, for the justices to evaluate their facts in for the justices to test their legal claims. M and a distinct subset of public opinion they care about. Right. Like conferences where their friends and like fellow travelers attend. And I think what this does is it has allowed them to discount the views and in some instances, assume bad faith and just like utter irrelevance of anyone who doesn’t share their bottom line conclusion or their worldview. And, you know, the this here that I’m talking about is this attitude of, you know, we don’t really care about the facts or, you know, our factual misrepresentations, whether it’s their completely unhinged dicta. And Martinez Ramirez, that the litigants conceded they lost under the alternative standard, whether it’s the very striking, overly aggressive, in the words of the Ninth Circuit judge, deceitful, false narrative they spun about the religion, public prayer at school, football games, case Kennedy versus Bremerton, or whether it’s their attitude toward stare decisis and precedent, you know, their complete willingness to just say, well, we don’t really care about the reasoning from that case or, you know, developing an analogy with that case, because we just think that case is wrong and it just leads to this like, fuck the facts, fuck the law, fuck your feelings. We don’t have to care about anything you think because we will get affirmation about our again, like statement of the facts are world view. Our analysis of the key says, you know where we want to.

 

Melissa Murray: Is does it even matter though, the fact that there is this external affirmation like it’s, you know, fuck the facts, fuck the law, fuck your feelings and fuck you libs because there are six of us. We can do what we fucking want.

 

Leah Litman: And you know that’s true. That’s that might be right. But I still think people want some support and some validation.

 

Melissa Murray: The echo chamber.

 

Leah Litman: Yeah, yeah. And again, particularly when people within that echo chamber have launched this very odd like delegitimization campaign, you know, directed to Justice Sotomayor, I think increasingly I have seen it directed at Justice Kagan, where you have commentators trying to criticize her writing style and tone and rhetoric. And obviously, we saw, you know, the conservative legal movement’s treatment of, you know, Justice Jackson and this effort to just undermine all of them again, as well as anyone with the kind of different priors.

 

Melissa Murray: Related to that observation, are, I think, this jurisprudence of grievance, the grievous prudence, if you will, also led to some really striking and jarring tone moments in the term. I’m just like just nasty, nasty stuff. I mean, you know, what was so striking to me in the Dobbs dissent was how the liberals really lamented the loss of the sort of open minded conservatives like Souter and O’Connor and Kennedy. And the counterpoint to that was really the way that Justice Alito came for Justice Breyer in his concurrence in Bruin, which is like, you know, Hey, you idiot, with all your statistics and your thoughts about gun control, how do you account for the fact that one of the mass shootings near the top of your list took place in Buffalo? Obviously, this New York law didn’t help with that. I mean, so ghoulish. I mean, like less than I’m like was it was it even a month after Buffalo when that opinion came out? I think it was just yeah, it was I mean, it was like literally weeks after this massive tragedy and it was just sort of like, yeah, obviously gun control didn’t help with that. Like, I mean, it was just, like just weird and ghoulish and directed at this man who is leaving the court and is, by all accounts been a really nice and generous colleague, even if he doesn’t share your views.

 

Leah Litman: Well, and the other kind of counter to that is the majority in Dobbs itself, in which Justice Alito, just like bitch slapped Justice Kennedy, Justice O’Connor and Justice Souter and their plurality opinion up and down zero respect.

 

Kate Shaw: And it’s nasty. It’s I think it’s a little less personal than his than the Thomas Bruin majority opinion but the Alito majority and Dobbs is pretty nasty with respect to the dissent. Right. Accusing it of failing to engage with the long tradition of history, which is just completely bullshit. And of course, it engages. They just read the history differently. The dissent does not identify any pre ROE authority. There’s just a nastiness. And you contrast that with anger, but not ad hominem in its articulation and the kind of sorrow that permeates the joint dissent in Dobbs, but also things like Sotomayor’s. Public statements about, you know, her good, her warm relations with her colleagues at the ACS convention. Like, they’re just like that. There’s so much asymmetry. It’s like we could spend a whole episode on it. But just like the sort of tonal asymmetry between the way the liberals on the court talk about and deal with their conservative colleagues, the way the Conservatives disrespect the Liberals on the court is really striking.

 

Leah Litman: Including the Chief Justice, of course.

 

Kate Shaw: Okay. As one of the liberals. Yeah. So true.

 

Melissa Murray: Had you all forgotten about the leak? I almost had. Like, that was like 150 years ago.

 

Kate Shaw: How do you think the investigation is going?

 

Melissa Murray: Oh, I mean, I think it’s going as well as the Buckingham Palace investigation into Meghan Markle’s bullying. Like.

 

Leah Litman: I mean, the clerks from this term are all leaving now. So.

 

Melissa Murray: Hopefully with their phones.

 

Leah Litman: Right?

 

Kate Shaw: Oh, God. Hopefully with their spirits not completely shattered. I mean, I do wonder about how the clerks, the liberal justices are are holding up, considering how hard this last stretch has been on like all of us on the outside, I can only imagine how hard it has been for them.

 

Leah Litman: I think there is some value to people leaving the court with a clear eyed view of what the current court is.

 

Melissa Murray: Many more legal opinions in the making.

 

Kate Shaw: Well, there is a silver lining. We found one.

 

Leah Litman: Start your podcasts. Work out your feelings. It will all be okay.

 

Melissa Murray: There’s a t shirt for that. Another theme for the term that I’m still trying to wrap my mind around is this whole selective federalism, you know, federalism for the but not for me, federalism for Arkansas, but not for California and New York or Illinois or any of those blue places. So this is all to say. The court was very, very happy to invoke federalism in Dobbs and to insist that all they were doing was a neutral settlement that returned the question of abortion to the states for Democratic deliberation. A la laboratories of democracy. But where were these laboratories of democracy in brewing? They had basically been blown up like a Breaking Bad meth lab. The court stepped in and decided that New York’s effort to deal with the question of concealed weapons was simply not something that should be subject to democratic deliberation but should be invalidated by judicial fiat. And so, you know, this is all really interesting when you think about the debates about congressional action to protect Roe and, you know, how we need to be mindful of the prospect of congressional action to prohibit abortion nationwide. So, you know, on the one hand, we have people talking about codifying the protections of.

 

Kate Shaw: Rights and the president saying he supports a filibuster exception to do that. So it’s like, you know, people are speaking in really serious terms about doing it.

 

Melissa Murray: People are speaking really serious terms. And we also have Brett Kavanaugh suggesting all this is just back to Democratic deliberation at state legislatures or in Congress. So, you know, inviting some Democratic deliberation at every level. So this is all to say. There is a kind of selective and itinerant commitment to federalism principles that we’ve seen from this court. And, you know, there’s every reason to believe that this court would invoke federalism and limits on congressional power if the issue was about a federal statute that sought to protect something like, say, abortion, but would uphold a statute that sought to prohibit abortion. And there’s just no principled understanding of how federalism works here. And I don’t know. I think that’s a major take away for this term and something to think about as you think about how to respond to what we’ve actually seen now.

 

Kate Shaw: It is so disheartening to kind of respond to people’s questions about, well, what about, you know, federal action? And I have to just answer. Well, it depends if the federal action is to protect abortion, I think it’s vulnerable. If it’s to prohibit abortion, I think it’s fine. And there’s no legal.

 

Melissa Murray: Likewise, it works the opposite way for guns to prohibit guns bad.

 

Leah Litman: Like just to inject another theme that I think is directly related to this, the attack on precedent, the attack on statutory text, the selective commitment to federalism, to textualism, to originalism, whatever you want to call it, is, I think, an attack on effective governance like the Supreme Court has become a chaos agent. You know how our agency is supposed to govern the court? Yes. Like they are a chaos agent. Because how are administrative agencies supposed to govern if you just know? Well, the court might just throw up its hands and say, we don’t like this exercise of administrative authority. Therefore, it’s a major question. So you can’t do this. How are states supposed to govern if the Supreme Court has required them to engage in this, you know, historical methods inquiry that is completely unworkable, rather than telling them to go gather evidence and support their policies, you know, with, again, actual evidence and empirically, how do people know their rights when, again, the court is just engaged? In this. We don’t care about precedent. We’re not developing sensible distinctions with prior cases. It just makes everything up in the air and governance, individual behavior, everything more difficult. What was it that Justice Kennedy said?

 

Melissa Murray: Liberty finds no refuge in a jurisprudence of doubt. But what about a grievous prudence of doubt?

 

Leah Litman: Well, I mean like.

 

Kate Shaw: There’s a grievous prudence of certainty, right? Like that’s the other thing.

 

Leah Litman: That’s the thing. It is a grievous prudence. A certainty. Because exactly as you were saying, Kate. Right. Like when someone says, like, well, could Congress enact a federal abortion ban? I’m like, sure, Justice Thomas has limited views of the Commerce Clause, but he’d be like, Well, Congress is protecting fetuses, so this seems fine to me. But could Congress enact a statute, you know, protecting abortion rights? That is unclear. And that asymmetry is all over the court’s cases.

 

Melissa Murray: [AD]

 

Kate Shaw: Okay. So other kind of like big thematic takeaways, one thing that we should mention and we’re going to do a deeper dove on this on a summer episode, but I think you have to note the important theme of the term that was just basically a clean sweep by individuals challenging rules or laws or policies on the basis that those rules or laws or policies undermined religious freedom. Right. So religious claim is one in every case they had before the court. And in many of those cases, you had the bulldozing of precedents in this area that had previously been understood to enforce limits on government funding of or active support of religion. So right in Carson, we saw the demise of the main scheme that funded private schools but, you know, didn’t allow those state funds to flow to parochial schools. Yet in, you know, the Kennedy versus Bremerton case, a big sweeping victory by a high school football coach who wanted to play midfield after football games. We had, in short of life, a big sweeping win for, remember, camp constitution. This was the religious organization that wanted to fly the Christian flag over the Boston City flagpole. And then finally we had a win for a death row inmate and Ramirez versus Collier, who wanted his pastor in the execution chamber with him. So in Ramirez, I hasten to say, I think that was and we all thought that was the correct outcome. But it is really a striking trend that there’s now, you know, the batting average as a thousand of religious claimants and before the court this term.

 

Melissa Murray: Also worth noting this religious energy is not just confined to the court. So we’re taping this on Friday the eighth. On July the seventh, Thursday, there was a hearing in Mississippi on a challenge to an abortion law that was about to go into effect in that state. And the proceeding began with the court calling a chaplain to say a prayer, which a chaplain did. It was apparently a quite extensive prayer that basically said, you know, this isn’t about law, it’s about God. And the court subsequently allowed the Mississippi law to go into effect, prompting the governor of Mississippi, Tate Reeves, to tweet. Today we wake up in a state where the church doors are open and the abortion clinics doors are closed. All the glory to God, the father. Amen. Prayer hands. Prayer hands. This is the chief executive of the state. Yeah.

 

Kate Shaw: And and you can see not only the way what the court has done is emboldening this kind of rhetoric, but also, I think, emboldening, you know, participants in the broader kind of constitutional culture to all of a sudden realize, well, if we are a religious entity and we have always understood, say we’re bound by state or local nondiscrimination principles, we can’t discriminate on the basis of sexual orientation. That’s just you know, that’s life in a pluralistic society, right to kind of channel. Joshua Max when he was on our show in June, I think those entities are actually now taking a look at this court and thinking like, Huh, we can change our policies and I bet we’ll win. And so I think that it is just having unbelievable ripple effects that even cases that are not litigated that don’t end up in the Supreme Court, like it’s having profound impact on individuals and institutions like way, way more than the small group of cases that we were talking about.

 

Melissa Murray: This is a point I think that we have underscored at various points during this term, but it’s worth thinking about again, there were four religion cases this term, right? So Ramirez, Carson, the Kennedy case, and then Shurtleff, like, I don’t know that we’ve ever had that many in a single term, certainly not since we know.

 

Kate Shaw: Not in the denominator of 66. That’s a big percentage of the cases. They didn’t decide that many.

 

Melissa Murray: That’s a really big percentage. And I think that speaks to the difference a 6 to 3 conservative super majority makes, right? So when it was just a 5 to 4 majority and they had to worry about where the fifth vote was coming from, especially if they wanted to do something extreme, they wouldn’t take those cases. Now they have five. They know they have five for this and they’re just emboldened to take all of them. So, I mean, this is sort of part of Leah’s point about being on the A-Train and going fast. But it’s not just in terms of speed, it’s also in terms of volume.

 

Kate Shaw: Yeah. Okay. So a couple of other points. One, I think we have to stop and talk for a minute about how laughably bad the law office history on display in some of these cases is. I mean, look, we spent time when the decisions came down talking about the selective reading of history in Dobbs, the abortion case and ruined the gun case. But there’s been a lot more commentary that’s come out since we initially responded to those opinions. And then I think there is like use and abuse of history on display in a lot of other opinions that got less attention this term. So, Bruen, we’ve talked about the gun case. Leading Second Amendment historian Saul Cornell, who’s at Fordham, had a great piece in Slate calling the majority opinion in my server versus Bruyn, one of the most intellectually dishonest and poorly argued decisions in American judicial history, and referred to it as an example of a court in serious intellectual and moral decline. Joseph Blocker and Darrell Miller had a really good piece in The Times about how bad the history and brewing is, but more how problematic the method announced in brewing is in terms of what lower courts are now in charge of doing and how nontransparent as compared to, say, you know, debate at the federal level about what, you know, passable gun package would look like, which we all just saw. That is a laudable example of how to try to, you know, do gun policy. Instead, what Bruen sets in motion is a method in which, you know, a group of judges and their law clerks sit down, try to connect historical gun laws that they find themselves or get an amicus briefs presented to them. And, you know, the judges and clerks are supposed to try to connect those laws to circumstances today and decide whether a regulation survives. You know, and I’m going to quote their op ed here. Whether a regulation survives this historical test will depend almost entirely on whether an individual judge thinks a regulation written to deal with a modern problem looks like a historical one. It is, and I know it when I see it, approach the historical analogy, and it’s one that we’re not going to really have, as you know, members of the populace, any insight into. And by sort of definition, it excludes considerations of the costs and the benefits of different kinds of gun regulations. Okay. A couple more things to highlight. One, in Dobbs, since we last recorded, there was a statement issued by the American Historical Association. The statement reads, The opinion inadequately represents the history of the common law. And despite mentioning history, 67 times does not meet the standards of historical scholarship. So that was quite a strong statement.

 

Melissa Murray: So can I say something about this?

 

Kate Shaw: Yes.

 

Melissa Murray: I did a program on Dobbs with the American Historical Association this week with a couple of other scholars. And as a thank you, they gave me a membership, a yearly membership to the AHA. And I was just thinking like, I wish I could read this to the court. I’m like, I’m good. But yeah.

 

Kate Shaw: Who? Alito. Thomas. Like, who is the most deserving? Who is the most in need?

 

Melissa Murray: Oh I think Alito, Alito and Thomas definitely would be the ones to whom I would request my membership. I hope I think the AHA should just literally signed some free memberships over there and just see what happens.

 

Kate Shaw: It’s a very very good suggestion.

 

Leah Litman: Yeah, yeah.

 

Melissa Murray: There’s some webinars you guys can get on.

 

Kate Shaw: And there were other cases that didn’t elicit, you know, these kinds of, you know, impassioned responses from entities like the AHA. But, you know, in Carson versus Macon, the main school funding case, the court basically says that another case it was distinguishing, it didn’t overrule, but it really narrowed this previous case log versus Davy, that involved a prohibition on state funds for actual ministerial training. And the court basically said, well, Locke’s reasoning expressly turned on what it defined as the historical and substantial state interest against using taxpayer taxpayer funds to support church leaders. It is clear that there is no historical and substantial tradition against aiding private religious schools. So again, this kind of really, really history and tradition bound analysis is largely what doomed the main program at issue in Carson. That was also true in Kennedy, the Koch Kennedy case in which the court, while it as it discarded the lemon test that had previously.

 

Leah Litman: Technically abandoned.

 

Kate Shaw: No technically recognized previous abandonment.

 

Leah Litman: Yes.

 

Kate Shaw: Which, anyway. So that’s the.

 

Melissa Murray: Precedents had been abandoned. Nothing active was done here.

 

Kate Shaw: You know, the passivity of the construction is really quite revealing.

 

Melissa Murray: The precedents had been left at a fire station after birth.

 

Leah Litman: Just Jungle Book, Lemmon.

 

Melissa Murray: Safe Haven, Lemmon. It was just left at a fire station and nobody used it. Therefore, it’s over.

 

Kate Shaw: And and as Lia pointed out when we talked about Kennedy, I mean, part of what is so insidious about this, like passive had previously been abandoned. Construction is it completely removes the obligation to explain why you were overruling a prior case. It just like says, Well, we already abandoned it, so we don’t need to run through any story decisis factors. We don’t need to explain forthrightly to the public why we are so changing the rule. We are just going to pretend that already happened.

 

Leah Litman: You know who doesn’t have to explain their reasons to the public? The fucking King of England and like that is how the court is behaving is like I’m a king. Right, you plebs. I don’t have to bother.

 

Melissa Murray: Well, even if they did have to explain, they’ve already overruled Casey where all of those factors are enumerated. So it’s like they didn’t even exist.

 

Kate Shaw: But they don’t even need to make the case that Lemon was egregiously wrong. Right? Like, that’s. That’s the only thing they seem to care about. Now, do we, you know, deeply disagree with it? And they didn’t even have to do that. So like the previous abandonment test or the previous abandonment, like move is in some ways

 

Melissa Murray: Don’t stop calling It abandonment test, it is a safe haven for precedents test. Stop calling it that. Call it what it is. Like. Do not be burdened by the difficulties of precedent.

 

Kate Shaw: And of overruling them.

 

Melissa Murray: Yeah. If you if you don’t want the burdens of precedent, drop it off at a police station or a fire station and some other country will adopt it. Some other constitutional system will take up your abandoned precedents.

 

Kate Shaw: I don’t know. This analogy is bizarre, but I kind of love it.

 

Leah Litman: Oh, I think it works.

 

Kate Shaw: It’s pretty great. The one about Lemmon  just to finish that is that, you know, the court also basically says, instead of this lemon test, we’re going to analyze an establishment clause case insofar as we even believe there is still an establishment clause with reference to historical practices and understanding. So it is very central to the Kennedy opinion as well.

 

Leah Litman: I mean, the legal test that the court has imposed in every case this term is do originalism be original ish like that? That is the legal test.

 

Melissa Murray: That’s not the test. The test is like do me and five of my friends agree with us?

 

Leah Litman: Okay. Yeah, well, that’s what it means to be original ish. Yeah. Not an originalist. I have to add to the law office history example. You know, Justice Gorsuch has completely unmoored musings about the history of habeas corpus and challenging or detention, Brown versus Davenport. You know, Justice Kagan in dissent, explicitly referred to this as law chambers history and described it as historical musings and said, although it is more entertaining to play amateur historian, right, you actually need to work on the technical legal issues before you accept the courts. Did no such thing.

 

Melissa Murray: Worth noting that no one on this court actually has a Ph.D. in history.

 

Kate Shaw: And it shows.

 

Leah Litman: Yeah.

 

Melissa Murray: Like I said, The Age is here for you. Some other top lines. These come from the SCOTUS blog stack pack. So this is where they collect empirical information about the term. Although we should note that these statistics do not include numbers from the shadow docket, which I think might skew some of these considerably. So first statistic, only 29% of the cases this term were decided unanimously, the lowest rate of unanimity in the last two decades that SCOTUSblog has been tracking such things. So, again, so much for our consensus driven, nonpartisan court. Another statistic about 30% of the court’s rulings on the merits were decided in a 6 to 3 vote. So much consensus of those 19 decisions, 14 were polarized decisions in which all six Republican appointed justices were in the majority and all three Democratic appointed justices were in dissent. Surprising another statistic Chief Justice John Roberts and Justice Brett Kavanaugh were in the majority and 95% of the court’s decisions. So weird for swing justices and 93% of the Non-Unanimous decisions. Roberts and Kavanaugh were each in dissent in only three cases this term. Justice Sotomayor, however, was often in dissent. She was in the majority, only 58% in only 58% of the court’s decisions, and only in 41% of its non-unanimous decisions, the lowest percentage of any justice. And she dissented in 27 cases. The two lawyers who argued most this term were not surprising. U.S. Solicitor General Elizabeth Prager and Texas solicitor general judge with two DS Stone each argued five cases before the court.

 

Kate Shaw: I feel like we’ve devoted enough air time to just with today’s let’s move on.

 

Melissa Murray: He’s going to have 3Ds by next term.

 

Kate Shaw: Okay. So one thing I wanted to mention briefly is we’re interested in taking a look at who the justices are citing in their opinions. And so we asked our terrific summer intern, Anoushka Chander, to help us compile these numbers, and she’s got some initial findings that are pretty interesting. Okay. So first dabs at the majority opinion had like 60 ish citations whose authors identity we were confident of. And of those, 51 were male, nine were female. So it’s a pretty striking asymmetry in terms of who is writing. Maybe not that surprisingly, the 17th century treaties.

 

Melissa Murray: I mean, if you don’t want to draw reproductive rights from some group, why would you cite them?

 

Kate Shaw: RIght?

 

Leah Litman: Yeah.

 

Melissa Murray: They shouldn’t even be writing. Really.

 

Kate Shaw: It was it was a pretty entertaining exercise to try to figure out the identity of some of the unnamed authors, like the unidentified author of a 1732 article in a publication called Gentlemen’s Magazine that I am trying to get my hands on to see what other gems it might contain beyond the source for which it was cited, which is its reporting of the conviction of one elinor beer for destroying a fetus in the womb of another woman. So I’m really hoping that the librarians at Cardozo, who I’ve asked to help me with this, will be able to get me a full copy of the 1732 issue of Gentlemen’s magazine.

 

Melissa Murray: I’m not a real historian, but I’m going to go out on a limb here.

 

Kate Shaw: You’re an honorary member of the AHA you have every right now.

 

Melissa Murray: Yeah. Now I am. And so as long as I don’t give away my membership, but I am going to go out on a limb and suggest maybe those writing for a gentleman’s magazine are jolly gentlemen.

 

Kate Shaw: I am taking the liberty of putting that in the chart anyway. So that’s pretty interesting about the numbers in the majority in the dissent. So the joint dissent in Dobbs had 42 citations, 36 of them were to women. You know, we observed the lack of women’s voices as authors write, you know, as named identified authors of the opinion. But the citations actually, when you drill down, really do reflect women’s voices. So that includes, as we’ve mentioned, previous strict scrutiny. Guest Greer Donnelly, who was cited along with her coauthors, Rachel Ray Bouchet and David Cohen. The dissent also cited previous guest Diana Green Foster and many, many other women scholars and researchers are cited. So 36 or 42 was really quite striking. Another in the dissent in the dissent we just heard, one other amazing finding was Gorsuch’s concurrence in West Virginia versus EPA. So it’s short that concurrence, but really chock full of citations. And it has actually 27 scholarly citations been on books and articles and things like that. And it is just man after man after man. 26 sites are two men. Guess who the one woman is?

 

Melissa Murray: I think I know.

 

Leah Litman: I have an idea.

 

Kate Shaw: Well, if you had found a way to, like, troll Ruth Bader Ginsburg, I’m sure he would have. But no, it’s to Professor Amy Barrett. And it is just like administrative law is a field with so many amazing women scholars, it honestly feels like this is a deliberate effort to only cite men with numbers that are that stark.

 

Leah Litman: So I have another idea that I think that this reflects, which is how the Republican appointed justices used citations, which I think was on display in the Justice Gorsuch concurrence in West Virginia versus EPA. Because remember, in that concurrence, he was responding to Justice Kagan’s dissent that cited recent historical scholarship, including from Nick Bagley and Julian Mortensen, who we had on this podcast to discuss their article. You know, that debunked the idea that Congress could not give authority to administrative agencies. And Justice Gorsuch is like, well, sure, you have these articles doing extensive historical research, but there are articles coming to the other conclusion. And just like string sites, a bunch of articles, rather than engage with the merits of the argument, that is like a substantive analysis of the underlying historical materials. And the reason why I think that’s representative is they are, again, going back to my jurisprudence of our grievous prudence is what we’re calling it, going back to grievous.

 

Kate Shaw: Grievous prudence of certainty.

 

Leah Litman: Right. The grievous prudence of certainty, as well as this idea of this alternate universe. They are citing their their friends, their friends who confirmed their worldview. And they also use the citation practice to elevate voices of people they agree with. No Democratic appointed justice uses citation practice remotely like that. They are not trying to highlight particular people’s voices, like Justice Kagan cited Nick and Julian’s article together with other recent ones, because it’s really fucking good legal scholarship that engages with the historical materials, you know? And it’s just I know that’s just.

 

Melissa Murray: A longstanding kind of issue with, you know, conservative think tanks giving out, you know, multi-thousand dollar book. Prizes to conservative authors. And if the left doesn’t do this, like, you know, maybe it should. Mackenzie Scott There’s a book prize for you if you want to get on it, but that’s just not something that they do. But, you know, to Leah’s point, what this reminded me of was Lisa Hynes, Serling’s Book Review and the Michigan Law Review that I think you may have talked about last year on one of our episodes, which was a review of Richard Lazarus, is the rule of five climate change at the Supreme Court, where he sort of recounted the litigation in Massachusetts versus EPA, and she wrote this like completely searing book review, which is like, I was there, women were there, like it’s called the Rule of five guys. And when I read the the Gorsuch concurrence in West Virginia versus EPA and, you know, saw all of those citations, like that’s the thing that stood out for me. Like this is the rule of five guys again.

 

Kate Shaw: And I think she actually is cited in the majority opinion. I’m going to double check that because she’s definitely not cited in the Gorsuch dissent. Yeah. So she so she gets cited in the majority, but very conspicuously not in the concurrence.

 

Melissa Murray: I mean, you had one woman. Kate, what more do you want?

 

Kate Shaw: It’s enough.

 

Melissa Murray: Like. hello.

 

Kate Shaw: Thank you. Thank you, sir. Yeah. Okay. So I want to do a quick rant about January 6th and the role of lawyers. And we have been so focused on the Supreme Court for the month of June, we haven’t had a chance to talk much about the January 6th hearings, but the committee has held six hearings. There are two more expected this month. In a functioning democracy, they would be absolutely game changing and they would eliminate entirely the prospects of former President Trump ever returning to political office. But we will see whether they have that effect. And, you know, we have heard a lot of really shocking revelations that we don’t have time to really go through. But we have also heard from lawyers. Right. So we have heard, for example, from Pence’s attorney, Greg Jacob, who testified before the committee on the same panel as retired Judge Mike Luttig. We have heard from former White House lawyers like Eric Hershman not in live testimony, but in recorded depositions about the kinds of theories that John Eastman was pushing inside the Trump orbit. We are recording on Friday. Today, former White House counsel Pat Cipollone is testifying in closed door sessions with the committee. And I am glad these former Trump officials are talking. It is incredibly important that they are doing so. But I remain pretty furious that they did not do so immediately. Trump was impeached on January 13th. Right? The people we are hearing from now knew all of this when he was impeached and when the Senate held a trial the next month, they knew there was a ton of incredibly damning information the senators were not hearing about as they decided whether to vote, to convict or acquit. And they didn’t speak up when it might have resulted in Trump’s conviction and disqualification. And I don’t think the testimony now in any way absolves them of those failures. And so we are now, you know, facing the possible presidential run of an avowedly anti-democratic candidate. But that presidential run is, you know, just one of a number of threats to our democracy. And so I just want to kind of briefly mention something that we we noted when the court granted cert in this case last week. So this is the North Carolina case more versus Harper. And it is a case in which the court will consider a legal theory that would really empower state legislatures to act in profoundly anti-democratic ways, like regulating elections in ways that might violate state constitutions. There is an extreme version of this theory that says that state legislatures can cut voters out of presidential elections even after they voted. And the idea that legislatures in the states possess this kind of power is baseless and profoundly dangerous. And. It’s a theory that looks and sounds maybe more serious than the farfetched claims of like stuffing ballot boxes that Trump was largely advancing in late 2020. But the theory can only look that way if lawyers and legal professionals mask it with that professional sheen, which is why I think it’s really important that lawyers and the legal profession condemn this radical idea because, you know, certain versions of it were the court to adopt them would risk throwing our country into the kind of crisis we barely managed to avoid in 2020. And lawyers are in a position to actually work to avoid bringing about that result. And so end rant. But I do think that as we are like in the run up to this really important case this fall and there will be other really important election cases, lawyers are in a unique position of actually working to safeguard the rule of law and not to participate in undermining it.

 

Melissa Murray: I think I’m really glad you gave us that summary, Kate, because we’ve been pushing off the January six hearings because there’s been so much going on at the court. But I mean, I think you just gave a really sort of important deep dove about how all of this stuff kind of comes back to the same core. Like there is, I think, a plot afoot to completely dismantle the processes of democratic deliberation and not just to insulate the court from blowback, but perhaps even to dismantle democracy as we know it. And I think it’s really important that people sort of see the connections between these two things. It’s easy to talk about them in silos, but all of this is interconnected and the court is in a really important position to deal with all of this as as you suggested, and indeed to facilitate the conditions with which something like this might happen. So.

 

Leah Litman: Yeah, I mean, I put it all under the rubric of is democracy constitutional right? I think that is what the independent state legislature.

 

Melissa Murray: Isn’t explicit in the Constitution?

 

Leah Litman: Funny, you asked.

 

Melissa Murray: Isn’t it deeply rooted in our history and traditions.

 

Leah Litman: I mean, like that’s kind of what the independent state legislature theory, either the warped variant or the narrower account in more races. But that’s also how I conceive of the Voting Rights Act cases that the court will hear next term, whether Congress can require states to take racial polarization and the prospect of diluting the votes of racial minorities into account when drawing legislative districts like they are asking whether a multiracial, representative democracy is constitutional. And I could go on with other cases that I think raise that question. But I think that is a unifying theme. And what we are seeing in the January six hearings, as well as on the court’s docket, and of course, Ginni Thomas, who sits somewhere between the two.

 

Melissa Murray: [AD]

 

Leah Litman: So what to do? As promised, we said we would discuss this. What to do with the shitstorm we find ourselves in. Wanted to canvass a few options for our listeners. Option one Don’t worry. Don’t worry, sweetpea. Everything will be fine. Several elite lawyers and fancy law professors are whispering. Soothing sounds of the court isn’t so bad in your ear. And I clerked with or I taught this justice. And I promise you, they definitely won’t require you to undergo a forced birth. Or even if they do. You could just fly to another state to avoid it. You could believe them. Pour yourself a Jenny tonic and sit back and enjoy. Because the road to Gilead is definitely not paved by a bunch of smiling men telling you not to worry your pretty little head.

 

Kate Shaw: An equally attractive possibility is to just give up. Right. The court is in the firm grip of a quite extreme group determined to reshape American law. The Democrats are not doing much of anything about it, so why bother? You can have long discussions on Twitter and in hipster gatherings about how the two political parties are really all the same. Because. Right. Footnote Dr. Joanna Breyer definitely sends insane emails about detaining people in barges off of Guantanamo Bay and encouraging people to overturn the results of elections. So that is the second option. Watch the world around you continue to burn.

 

Leah Litman: So option three is to wake up and do something. This involves organizing to protect your rights, you know, participating in efforts, petitions to amend state constitutions, to protect voting rights, to protect reproductive rights and more. As part of that, that involves getting involved in state Supreme Court elections. There are huge, important elections that will affect the balance of state supreme courts that are on the ballot this year in North Carolina, Michigan, Ohio and Montana. Next year, those elections will be in Wisconsin and Pennsylvania. These could not be more important. On the day we are recording this episode, the Wisconsin Supreme Court, as I alluded to, ruled four, three with four Republican justices in the majority that ballot drop boxes are illegal. This is not a drill. People, you know, just other things kind of go in this bucket, are getting involved in learning more about state and local DA elections, state legislative elections. Find local organizations on the ground who are already doing this work and get involved or you can start your own.

 

Melissa Murray: So I can actually get down with that option. I can get down with that option.

 

Kate Shaw: I wish we had time to talk about the Wisconsin case because it is so fascinating and so important. And that court has issued a lot of decisions that are just so profoundly anti-democratic. And yes, here the fourth, the conservative vote doesn’t join some of the more insane parts of the majority opinion.

 

Leah Litman: But you mean the parts of the majority opinion that call the outcome of the 2020 election into doubt and draw analogies to North Korea and Syria.

 

Kate Shaw: So don’t forget Iraq.

 

Leah Litman: Ballot drop.

 

Kate Shaw: Saddam Hussein’s definitely mentioned too.

 

Leah Litman: And Iraq. Because analogys right, not court’s forte, but ballot drop boxes are somehow like North Korea.

 

Kate Shaw: I mean, literally has to be read to be believed but that’s what the opinion says.

 

Melissa Murray: What the hell is happening in America’s Dairyland? What is going on?

 

Kate Shaw: Nothing good except in the dissent in that case, which is very powerful.

 

Melissa Murray: Very powerful dissent.

 

Kate Shaw: But yes, but it’s it is. And there is not a starker illustration out there of how important state courts are right now than that that was a 4-3 decision and that the balance of that court is going to be on the ballot in 2023.

 

Melissa Murray: So so let me recap the options for those who may have tuned out. Option one sucks, right? Option one is just like literally letting them lull you into complacency because they keep telling you nothing’s going to happen, everything’s going to happen. So literally, gird your loins. Option one sex. Option two also sucks, so don’t do that one either. Option three is literally the only option that works here. So wake up and do something. And I hear you like you voted. You voted for Joe Biden and things haven’t worked out exactly as you planned. To be fair, we’ve gotten some things we may not have gotten everything. That doesn’t mean we stop voting. Voting, to quote Stacey Abrams, is not magic. It is medicine. And you keep taking it and taking it every day because you fucking want to live. And I cannot emphasize this enough, like. As a black woman, I get the importance of voting like I wouldn’t be here in this podcast booth if people before me had not voted literally for their lives. And so I just do not buy this view that we can absent ourselves from the democratic process because things have gotten rough. And I’m like, I hear you. Things have really gotten rough. We have to redouble. We have to get other people to vote. We have to get involved. We have to stay active and we can’t despair. I mean, we can get on this podcast and talk about how totally effed up everything is, and that’s where we leave it. This is therapy, it’s cathartic. Get it out here because we need the hope to keep going because literally in the vacuum of hope is where they live, that is where they live.

 

Leah Litman: And you can organize to vote and continue to vote while also organizing to demand the Democratic Party do better. Write call your senators and representatives about these issues, about the Supreme Court’s decision. Call your senators about judicial nominations. Ask them what they are doing to schedule more hearings, fill vacancies, and bring nominees to the floor, and vote to do the same. The patriarchy not going to smash itself.

 

Melissa Murray: And there are lots of different organizations. You can channel your energies through Pod Save America. Crooked Media’s Vote Save America is a great plan. Sister District Project. If you want to really take your efforts to the state and local level Sister District Project is doing amazing work trying to turn states and localities blue. That’s a great place to intervene. But Leah’s exactly right. The patriarchy is not going to smash itself. It literally wants to drink unicorn blood and keep going. We have to cut off the supply of unicorn blood.

 

Kate Shaw: No, I know. And I’m glad, you know, you mentioned hope Melissa, which is like, you know, I thought that Rebecca Traister, the day after Dobbs had like a beautiful meditation about the necessity of hope. And she quotes the prison abolitionist Mariame Kaba on this, who has written often the hope is a discipline. And so Rebecca quotes Dahlia Lithwick asking, What does it mean? The opposing imperative of honoring the feeling of being shattered while gathering up whatever is left to work harder? And Rebecca sort of offers it means doing the thing that people have always done on the arduous path to greater justice. Find the way to hope not as feel good and esthetic, but as tactical necessity. I’ve read that essay a number of times since Dobbs was released.

 

Melissa Murray: So what do we have going on this summer in addition to hoping, wishing and hoping and activating and organizing and coalescing? And moisturizing

 

Leah Litman: So while the Supreme Court is not hearing arguments or releasing decisions in argued cases. We will still have weekly episodes. We are tentatively calling this strict scrutiny summer school because the court needs some, let’s say, remedial lessons on the law. We will have.

 

Melissa Murray: Wait, wait, wait. So instead of constitutional vibes, we’re going to be teaching constitutional law.

 

Leah Litman: It is.

 

Melissa Murray: Amazing.

 

Leah Litman: That is true.

 

Melissa Murray: Amazing.

 

Leah Litman: That is the plan. We will have some deep dives on issues that come up frequently at the court, like election litigation, the death penalty. We also have some book talks. We will also do some deep dives on issues that the court heard this past term and maybe look ahead to some issues on this upcoming term as well. Also, in the spirit of wrapping things up, I wanted to review our outstanding invitations to join the podcast in case some of our invitees have extra time. The Summer Call is really excited about these. Definitely, you know, released invitations to Taylor Swift. Elena Kagan. Regé-Jean page. I was imagining a group episode with all three of us. I think Justice Jackson will have to be on the episode with Taylor Swift since she is a swifty. I also did want to issue a new invitation to Cody Rigsby Peloton instructor.

 

Melissa Murray: Hey, boo. Hey, boo.

 

Leah Litman: America needs a pep talk that only you can provide.

 

Melissa Murray: I want to cosign the Cody Rigsby invitation. I want us to find our light, fix our wigs, and, like, let’s just. Let’s go. Let’s put the Britney on and let’s go. So, yes, Cody.

 

Kate Shaw: So he’s amazing. I don’t ride the bike very much. We do have one, but I usually go on runs and I sometimes run with Peloton instructors. Cody does not do runs. He just does. Does he just not run?

 

Melissa Murray: No, he doesn’t.

 

Kate Shaw: I wish he would.

 

Melissa Murray: No, you might like Jess King. She does a fun run.

 

Kate Shaw: I do. I do all the runs. But I just the conspicuous absence of Cody is is like creating a little hole in my life. I guess I got to do the bike more.

 

Melissa Murray: I mean, I think you got to do the bike. I mean, I really love Cody. X-o X-o. And like I said, we would should also re-issue our invitation to newly retired Justice Stephen Breyer, because we would love to have a regular segment here where you answer questions from the public. And I think you would like it, too. And, you know, we’re willing to say that we may have been a little hard on you at the beginning of the term. It seems so long ago it was like a million years ago. We’ve actually forgotten it because we’re so deep in the Brier High right now. But we would love for you to come on the show, Justice Breyer, and answer questions from our listeners, talk about your pot roast, talk about whatever you want, like you can do it. Like we want to hear from you. We’d love to have you additional guests that we would love to have. And I’m just going to reissue this invitation. Meghan Markle, the Duchess of Sussex. We’d love to hear your thoughts on comparative constitutional law, the difference between the United States and the United Kingdom. I can say someone of Jamaican descent, a former colony I have been watching with rapt attention the absolute implosion of the British government over the last couple of days. So would love to talk about it with you. Would love to talk about the various lawsuits your sister has filed against you, all of which seems spurious and a waste of judicial resources, which we can discuss in more detail. So please, we’d love to have you on here and we can talk about whatever you want.

 

Leah Litman: One additional wrap up on a somewhat optimistic, uplifting note. You know.

 

Melissa Murray: We don’t do that, Leah.

 

Leah Litman: Well, I’m going to try for whatever it’s worth.

 

Melissa Murray: Okay.

 

Leah Litman: I feel like right now I am balancing between fixating on this sentence from the joint dissent and Dobbs, which said, Closing our eyes to the suffering today’s decision will impose will not make that suffering disappear, but also balancing that against the need to find my people and find ways to kind of reset and stay sane amidst all of this. And so I just wanted to express how wonderful it has been to be doing this podcast with both of you. I feel like it has helped keep me sane and help keep me going and allowed me to do all of these things because it’s just like, it’s so nice to have your people and feel not alone and I hope we offer some of that to our listeners as well.

 

Kate Shaw: I’m literally tearing up now, Leah. Yeah. Yeah. This has been this has been an unbelievably hard ride, but it has been a source of great comfort to be able to digest and process this, all of it with the two of you. And we’ll keep doing this.

 

Melissa Murray: We are sisters in law.

 

Kate Shaw: Yeah.

 

Leah Litman: Kate, I literally did start tearing up at this talk Melissa and I did, where at the end of it I was talking about how speaking to people like the Jewish faith and in the Jewish tradition about accepting fights, you are not going to win in your lifetime. And I’ve definitely started like choking up and thankfully it was at the end.

 

Melissa Murray: Was that this morning?

 

Leah Litman: Yes, I know. Speaking of, it’s been a million years. That was this morning, Melissa.

 

Kate Shaw: Well, okay. Well, it’s I think it’s like a Rosé a clock. So let me read the closure and let’s get out of here.

 

Melissa Murray: It’s been rosé-o’clock since September. FYI. September 1st was the beginning of Rosie the clock.

 

Kate Shaw: Oh, that’s right. That’s right. All right. I’m going to close it out. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray, and me Kate Shaw produced and edited by Melody Rowell, substitute producing today by Katherine Fink. Audio Engineering by Kyle Seglin Music by Eddie Cooper, production support from Michael Martinez, Sandy Girard and Ari Schwartz. Digital support from Amelia Montooth and Summer Intern Support from Anoushka Chander.