Jon Lovett joins Leah and Melissa to talk about what’s at stake in this week’s Wisconsin Supreme Court election and what it was like campaigning for Susan Crawford in Madison and Milwaukee. Then, the ladies run through a busy week of argument recaps, opinions, and legal news, covering the relitigation of the Voting Rights Act, the sunsetting of the administrative state, and that text chain.

Hosts’ favorite things this week:

• Leah: After Dobbs, David Cohen & Carol Jaffe; Mayhem, Lady Gaga; Black Bag, Steven Soderbergh; Wrexford & Sloane mystery series by Andrea Penrose; Lawsuits by Wilmer & Jenner challenging wildly unconstitutional executive orders; Judge Howell’s order rejecting the request for her to recuse in the challenge to the EO targeting the Perkins Coie order
• Melissa: Last week’s episode of Strict Scrutiny; A Season of Light, Julie Iromuanya; The Note, Alafair Burke; Yacht Rock: The Dockumentary (Max); Gwyneth and Meghan on Instagram; New Phone; Houthis? (Christian Schneider on X); Text STOP to opt out of war plans (Leta McCullough Seletsky on Bluesky)

Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 

• 5/31 – Washington DC
• 6/12 – NYC
• 10/4 – Chicago

Learn more: http://crooked.com/events

Pre-order your copy of Leah’s forthcoming book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes (out May 13th)

Follow us on Instagram, Threads, and Bluesky

 

TRANSCRIPT

 

Melissa Murray [AD]

 

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

 

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

 

Leah Litman I’m Leah Litman. As that intro suggests, Kate is out this week, but don’t worry, she’ll be back. And we thought in the absence of our little optimist, we should try to make sure we had some positivity in this episode, which is why we are delighted to begin this episode with our favorite JD Vance and Sam Alito impersonator, Jon Lovett, who’s here with some dispatches from his work in Wisconsin campaigning for the upcoming election that will determine control of the Wisconsin Supreme Court. We’re very grateful Jon has agreed to return to Strict Scrutiny because the last time he appeared on the show, we made him cosplay JD Vance and then we yelled at him.

 

Jon Lovett You know what’s funny about that? I was playing a character.

 

Melissa Murray Everything. Everything was funny about it.

 

Jon Lovett There was this study where, in a debate class, the class all knew that people were assigned a pro or a con. They knew it wasn’t their actual position. But people couldn’t help but coming away angry at the person for espousing the view they disagreed with. And I will never forget the expressions on your faces when I went full Alito. and it was I it was like it was It was as if what you were saying on some level, which is, we know you’re playing a character, but the fact that you can do it speaks poorly. There’s something deeply wrong with you. Like you’re so able to embody this. Sam Alito is a real moral failing on your part. But I’m glad to be here as myself. I am sorry that I have to play the role of optimist. I will try not to disappoint.

 

Melissa Murray Well, we could also switch and we could do like JD Vance with dispatches from Greenland. We could hear more about that. But I think it would just require you to be stoned by the public.

 

Jon Lovett Absolutely. The streets of Nook were not throwing flowers at the passing motorcade, it turns out.

 

Leah Litman Yeah. OK, so after we talk with Jon, we will recap the cases the court heard last week, and we’ll explain how those cases relate to the ongoing foster clock that is Article 2. Then we’ll recap some opinions that the court recently handed down. We should also give a content warning that having an episode with the three of us and no Kate has the potential to get real feral real fast. and it’s going to be a long episode too because we have a lot to cover. We will try to keep it in check. We have stopped texting national security secrets in our riverside chat and signal chat, and we definitely won’t be including any journalists in the group chat either. So with that intro, Jon, what was your experience like in Wisconsin?

 

Jon Lovett So everyone that listens to this is familiar with the race. I went to Wisconsin to kick off some canvases and door knocks with a bunch of volunteers. I knocked on a bunch doors myself. And first of all, it was so great to just see people and be among people. And I know there’s a lot of work that has to be done to understand, like, hey, where is democratic activism? the most effective—by the way, small d, democratic activism—where is it most effective, right? Like, I think we all believe that the text message system is out of control. We’re all getting these ridiculous tests. I just can’t believe that that’s effective, that, you know, it’s harder and harder. I advocated espoused phone banking, and I don’t know how effective it is. I still believe knocking on people’s doors and saying, hi, I’m here to talk to you about this important thing. Let me tell you why it’s important. It matters. I think it matters more. Like, in Wisconsin, Elon Musk has dropped over $13 million into the race. If you are in Wisconsin right now, you are seeing ad after ad of basically back and forth accusations around who’s softer on sexual predators, around a bunch of-

 

Leah Litman Well, well, do I have news for people about the Trump administration and Elon Musk and sexual predators? Hello, Andrew Tate. But whatever.

 

Melissa Murray Can we come back to the Elon Musk piece for a minute, Jon. So I don’t know how many of our listeners are totally up to speed on what’s been going on in Wisconsin. But Elon Musk has been weirdly, weirdly focused on this Wisconsin Supreme Court raise up. He has used a similar tactic in Wisconsin as that which he used when he was campaigning for Donald Trump in 2024, which is to say that he’s not just donating a shit ton of money to the campaign. The New York Times reports that his super PAC has offered cash to voters who sign a petition opposing activist judges. And that’s significant because it not only likely violates campaign finance laws, it also allows Elon Musk and his PAC to identify Republican-leaning, conservative-leading voters whom they can later target in their turnout efforts in this race. And Musk has also tweeted, but then he deleted, an offer to hand million-dollar checks to people who attended an event. for which a prerequisite was actually voting in the election. So there’s all kinds of stuff that he’s doing here. I wonder, though, John, if Wisconsinites were actually up on all of these shenanigans and really aware of how deeply Elon Musk was engaged in this race.

 

Jon Lovett It’s hard to say. Elon Musk has definitely made himself the main character of this Supreme Court race. It is what’s on people’s minds. When we were knocking on doors, we were in Madison, we were Milwaukee. Madison really was just about making sure everybody’s votes were in, and I was very pleased to see everybody really was voting. They all had a plan. They either voted already, we’re gonna vote early, we’re going to get their ballots in. They were talking about Elon Musk dropping all this money.

 

Melissa Murray And Madison is the state capital where the University of Wisconsin is. So it’s like it leans west. Go Badgers.

 

Jon Lovett It’s a very liberal city. We were in Milwaukee, I think in a more suburban, I think less blue, but still blue neighborhood. It was interesting knocking on the doors of some independent voters. And obviously it’s all anecdotal, but because Elon is now the main character of this race because of all the money he’s dropped, people were really were talking about the Tesla’s being set on fire. You know, I I don’t like all this money in the race. I don’ like seeing people set tessels on fire. I like the idea of billionaires buying our races, but everything’s gotten a bit crazy. That’s sort of the independent streak moderate moderate But I found, certainly, when you talk to people, say, hey, this race is really, ultimately, about three issues. One, whether or not you want an 1849 abortion law back in effect. Two, whether you want fair elections. And if you care about, if you’re an independent Democrat, do you want Republicans to have to earn your vote? Or do you them to be able to draw their own districts? And three, do you think it’s appropriate for a billionaire to buy a Supreme Court seat when that billionaire has business before the Wisconsin Supreme Court? Tesla has. a lawsuit that will go in front of the Supreme Court. Schimel, who is the former Republican attorney general, he has refused to say he’ll recuse himself from that case. And I think when you lay out those stakes simply, it’s pretty clear. And so the job is really making sure everybody in Wisconsin, who is feeling pretty deluge with advertisements, feeling pretty actually overwhelmed with too much unhelpful information. has what they need. So if you are, you know, text your friends in Wisconsin, this thing really, we have no idea what’s going to, it could be close. It could be a blowout. We have absolutely no idea. It’s very hard to pull an off cycle, post Trump victory, Supreme court race. The other reason that the Republicans are so focused on this is, we went through a cycle like this. We were just in Wisconsin for a Supreme court rates where Janet Protasewicz managed to win. that victory shifted the balance of the court from right to left, which allowed them to put in place fair maps for the assembly. Still a Republican assembly, but allowed them break the super majority. Right now in Wisconsin, we all know it’s a 50-50 state. Biden won, Trump won. It’s a fifty-fifty state. They have six Republican House members and two Democratic House members. Why? Because they drew the districts to make sure only Republicans could win. And if we can hold this majority in the Supreme Court. we will have the opportunity to have fair maps. If Schimmel wins, that’s off the table. They may even revert to the old assembly maps to get back in striking distance of that supermajority.

 

Melissa Murray This race is hugely important because of what it might mean for the redistricting maps in Wisconsin and the abortion issue. But I also want to note for our listeners that this is really important just as a general matter because Elon Musk has been maxing out contributions to Republican candidates who endorse his effort to impeach federal judges who are standing up to the administration. And so one way that you could look at this election if you’re outside of concert and just sort of generally interested in democracy is that if they win in Wisconsin, Elon Musk will be emboldened to continue funneling money to these Republicans who don’t want to stand up to the administration and who do want to intimidate and frustrate judges. If they lose though, it will send a signal to those Republican candidates and officials that Elon Musk isn’t all powerful. He can’t buy everything and maybe they could stand up too.

 

Jon Lovett Yeah, and I think it’s even bigger than just on this question of judges. Right now, the Republicans are pushing ahead with a plan to do through reconciliation in the Congress, which means they won’t need Democratic votes, to pass a sweeping set of cuts to the safety net, to Medicaid, potentially Social Security, to government spending in order to pay for a tax cut for billionaires and millionaires and the richest corporations. That is deeply unpopular. It just is. It’s unpopular in blue districts. It’s unpopular among Republicans. Right now, there’s a dozen or so Republicans from these swing districts who are watching all of this unfold. And they are cynical people. They are weasels. And they’re trying to decide what’s scarier to them. Is it scarier to side with Elon Musk and face the wrath of your constituents in the fall, but know that Elon will spend money to try to protect you? Or is it scarrier to buck Elon Musk, except that you may be primaried. that you won’t have his money, but you’ll have done the responsible thing that will earn you some confidence from the actual voters. Are they more scared of Elon or are they more scare to their voters? If we can show that $13 million dumped on the heads of Wisconsin doesn’t work, that will send a signal to these people. It really, look, we don’t, it’s hard, right? We don’t know, we are not in charge of what these individual swing district Republicans are going to do. But man, if we can them that this money doesn’t works. it will go a long way to scaring them potentially in a way that could stop them from making these sweeping cuts. So like the stakes couldn’t be higher.

 

Leah Litman Jon, what are some things people can do to help out in the final legs of the race?

 

Jon Lovett A couple things, and I do think this is probably at this point the most important thing. You know people in Wisconsin, reach out to them. If you’re in Wisconsin make sure you’re telling everyone you know how to get involved. You can go to vote safe america dot com slash Wisconsin and there are other ways you can help. They could still use money here in the homestretch. Ben Wickler, the incredible chair of the state party of Wisconsin, the best chair in the country, is doing everything he can. They could use resources. there are volunteer shifts. Knocking on doors is better than calling, calling is better then nothing. If you’re not able to get into Wisconsin in the next couple of days, you can help from your couch, either by donating or by volunteering. But if you’re in Chicago, if you are in Michigan, if you were in Minneapolis, St. Paul, like get in your car, find a canvas shift. First of all, it’s helpful. It is helpful, it makes a difference. But also, we’re watching all of this horror unfold. And I think a lot of us who pay close attention. feel like, what’s it gonna take to wake everybody up? Like, where is everybody? Where is the cavalry? Like, when are people gonna stand up and start showing up? And I do think part of the problem is like, the answer’s just not gonna be in our phones. We all have to model it, and that means just we all have start meeting people face to face, getting out there and talking to people. Solidarity is not just about politics, it is about community, and we’ve become so atomized, we’ve became so separated from each other. I think we’re paying such a terrible price for it. and it’s hard and it is going to take time, but like it is so good to be among people and you need to figure out ways to do it, whether that’s a town hall in your community for a Republican or Democrat that’s fighting, that’s going to have these votes on reconciliation or if you’re near Wisconsin, like get in there and be part of it. There’s this asymmetry in politics where it is completely normal for a republican politician, a JD Vance, to go on Fox News and say the liberal cities are filled with communists and traitors, right? It would be obviously inconceivable that, like, John Ossoff or Elizabeth Warren would go on television and start ranting about the rubes in Alabama, right? Like, there just is no version of that. then the conversation about politics is about how, oh, Democrats have all the voters that care about democracy. Those people are already baked into the stock price. We gotta find the people that are less engaged. We gotta the people that maybe are more open to Trump, right? And that’s all true. But it ignores the fact that there are millions of people who are doing everything that they’re supposed to do, who are angry and scared and want to help. And those are great people. And you’re walking in doors around Madison and there are these. Like these, you know, this older woman who was gardening and she was just like, I made my own sign. Thanks for being out there. I’m so scared for my country. I’m worried about what’s gonna happen. We gotta beat Brad Schimel. I can’t believe what’s happening to our country. And you just forget like, yeah, great. You have their votes. But it’s so good to be among the people that are in this fight who don’t get the credit they deserved. And we have to start building out from that community of people. So like be a part of it. It’ll be, I’m telling you, once you start, you won’t be able to stop.

 

Leah Litman Optimistic and inspiring.

 

Jon Lovett How was that? That was optimistic.

 

Melissa Murray Jon Lovett. Can’t stop, won’t stop energy. Also, someone who has taken the LSAT and done a really credible job. So I want to invite you to stay with us for the opinion and argument recaps if you’d like.

 

Jon Lovett I’m happy to stick around. By the way, is there any doubt right now that Donald Trump’s lackey that he put in charge of the attorney’s office in D.C.?

 

Melissa Murray Oh, um, that would be.

 

Leah Litman U.S.A. Dick, Ed Martin.

 

Melissa Murray U. S.A., Dick, yeah, Ed Martin.

 

Jon Lovett Is there any doubt that right now you sit us side by side, give us a bar exam, I’m beating him?

 

Melissa Murray You got USA Dick all wrapped up. I take that back.

 

Jon Lovett I’m happy to stick around. I’ll ask questions. No, no. You don’t want me to? No, all right.

 

Melissa Murray That wasn’t a sincere invite. Okay, good. It’s just like one of those things where you do it to be polite, but you don’t expect that he would have take you up on it.

 

Jon Lovett No, get rid of me. I’m happy to- I’m sorry, I thought you wanted- I- I am great. Oh, nothing made me happier than to not do that.

 

Leah Litman Okay, okay, thanks.

 

Jon Lovett I’m sorry, it’s a fake invite, but if I joke about it, I’m a piece of shit.

 

Leah Litman Exactly, exactly.

 

Melissa Murray Now we’re back to the energy of the top of the show.

 

Leah Litman Now we rub you up to say something where we can yell at you. It’s great. Just like old times.

 

Jon Lovett Alright, thanks guys.

 

Leah Litman Thank you.

 

Thank you, Jon.

 

Melissa Murray [AD]

 

Melissa Murray OK, that was great to hear from Lovett with that dispatch from Wisconsin. But now let’s go to 1 1st Street and talk about some of these oral arguments that the court heard last week. First up, Louisiana versus Kelly. This is the case in which the court heard a challenge to the Voting Rights Act. And basically, the whole question here is whether it is unconstitutional racial discrimination for states to try to remedy a violation of the Voting Rights Act.

 

Leah Litman The TLDR of this case is that Louisiana was found to have violated the Voting Rights Act. It drew only one of six districts in which black voters could elect the candidates of their choice. Districts that did not comply with traditional districting criteria, such as compactness, but did manage to ensure that black voters had less political power. If this sounds eerily familiar, it should. In 2023, the court decided Allen versus Milligan, basically the same facts as this case, only in Alabama. Alabama’s legislative district map also contained only a single black majority legislative district when it was possible to draw two. The Supreme Court paused the lower court decision in validating those Alabama maps on the shadow docket, which allowed the state to use the illegal maps in the 2022 midterms. But then on the merits docket in June, 2023, the court ultimately concluded that Alabama’s congressional maps violated the Voting Rights Act and said that the state must draw an additional district with a black majority. Using similar logic as the Supreme Court did in Allen, a court held that Louisiana’s map violated the Voting Rights Act. Even the Fifth Circuit was on board. They didn’t undo the lower court decision, and the Supreme court did not review the matter.

 

Melissa Murray OK, so just to be really clear about the procedural posture of all of this. This is a case out of Louisiana, and it is called Robinson. That’s important, hold on to that name. In Robinson, several judges concluded that Louisiana violated the Voting Rights Act by doing almost exactly what Alabama did that was ruled impermissible in Allen versus Milligan, which is to say. that Louisiana drew a congressional districting map with only a single black majority district when the population and the composition of the state would have allowed it to draw two. Court said this was an impermissible violation of the Voting Rights Act. So after that decision in Robinson, Louisiana went back to the drawing board and the legislature redrew the maps and created a new black majority district, bringing the total of black majority districts up to two. Now, this is the important part. The new maps, although they did provide two black majority districts, also did some other things. Two birds, one stone. Louisiana’s legislature decided to also protect the seats of some Republican members of Louisiana’s congressional delegation, including Speaker of the House Mike Johnson. So helping black voters, but also helping themselves, which sounds exactly the same.

 

Leah Litman Yeah. And it’s those maps that the three-judge district court struck down. And because, inevitably, stare decisis is for suckers and constitutional rights are for cucks, it seems that some number of Republican justices are very interested in relitigating Alan versus Milligan. And there’s just no doubt that relitiguating Robinson, the underlying Louisiana case about whether Louisiana had initially violated the Voting Rights Act, would relitigation the state acknowledged in earlier papers that the case is. present the same question. So I would just like to note how convenient it is that the justices decided to probe this ostensibly settled question right now. Why now pursue this race-neutral vision of the Voting Rights Act when they could have used Allen versus Milligan? Maybe because June, 2023, when Alan was before the core, that was part of the lead up to the 2024 election cycle. Or maybe, maybe it was because June 2023 was the 10th anniversary of the Supreme Court’s decision gutting another part of The Voting Rights Act, the preclearance regime in Shelby County versus Holder.

 

Melissa Murray Hmm

 

Leah Litman Or maybe, maybe, it was because June 2023 was just a year after the court really said fuck precedent and your mama too, in daubs.

 

Melissa Murray All right, so with no election looming and no pesky anniversaries with which to contend, the Republican justices decided that, yes, maybe this is exactly the right moment to be relitigating Allen versus Milligan. And here’s how they went about it in this argument. In previous Voting Rights Act cases, the court has held that a state can engage in race-based districting when it has a strong basis in evidence for concluding. that doing so is necessary in order to comply with the Voting Rights Act. And here, multiple judges concluded that Louisiana’s original maps violated the VRA because they only produced a single black majority district when there could have been two. So in redrawing the maps, Louisiana actually had a very good reason to believe that in order to be compliant with the vra, it actually had to take race into account because it actually had to draw a second black. But alas, that kind of very straightforward, very logical logic didn’t seem to stop our favorite justices from doing the absolute most in this oral argument. Throughout the argument, these bros were all, what are you even talking about? Louisiana didn’t violate the Voting Rights Act, even though our very recent decision in Allen v. Milligan obviously says that they did. And case in point, America’s favorite civil rights jurist Clarence Thomas asked whether. The court had to accept or take the resolution in Robinson as a given. And remember, the resolution and Robinson was that Louisiana had violated the Voting Rights Act by only drawing a single black majority district. And again, yes, my guy, you actually have to take that as a give. The court decided it. The other judges agreed. And here we are.

 

Leah Litman Well and also Louisiana just gave up the ghost, right? And like conceded and had the legislature draw a new map.

 

Melissa Murray We violated The Voting Rights Act. And now we’re going to go draw new maps. We’re going make another black district. We’re also going to safeguard Mike Johnson’s seat. Everything’s copacetic here.

 

Leah Litman Samuel Alito also wanted to know, what if Robinson was plainly wrong? It is not, unless Allen is plainly wrong, spoiler alert, it’s not. Justice Gorsuch was also trying to distance the court from Robinson, but those people were in dissent in Allen versus Milligan. The concerning part for me is that two of the justices in the Allen majority who had found Alabama had violated the Voting Rights Act, the Chief Justice and Justice Kavanaugh. seemed open to relitigating Allen as well. The chief also asked whether the litigants thought Robinson was correct. So at least three justices, justices Thomas Alito and Gorsuch, Barrett didn’t talk that much, seemed eager to religate Milligan, and in the process put the same burden on courts and legislatures that are trying to draw maps to remedy a Voting Rights Act violation as the burden that applies to plaintiffs who are challenging maps that legislatures have already drawn. This does not make any sense as states are supposed to be the ones with primary responsibility for drawing maps so that they can balance between different considerations like protecting Mike Johnson’s seat, but whatevs, I guess.

 

Melissa Murray All right, can I just say something? Did I not call this back when we were talking about Alan versus Milligan in 2023? Remember, Steve Vladek and I wrote- Kate and I literally noted that in the argument preview, OK, great. Thank you. I got so much shit from people when I was like, don’t get too excited about Alan vs. Milligan. This is an ephemeral victory, if we even want to call it a victory. They’ve already used the shitty maps in the midterms, and they don’t even seem really committed to this. Remember, Clarence Thomas had that. weird, separate opinion when he was like, hey, wait a minute. Do you have to be a government actor in order to sue under section two of the Voting Rights Act? I think maybe you do. Like, there were all kinds of Easter eggs about how they’re going to fuck this up.

 

Leah Litman Well, also, Justice Kavanaugh wrote separately and was like, maybe, maybe if you made this additional argument, I would have struck down the Voting Rights Act in this case. Melissa, I’m so, so with you on this point. Sorry, you wanted to say something.

 

Melissa Murray No, I’m just saying like there were so many people, including from our little, like, you know, lefty milieu, who are just like, how can you say that about Ellen vs. Milligan? I’m like, because I said what I said, bitch, because it’s true. Like, they were not committed to it. Not committed to

 

Leah Litman I am so with you. I literally wrote that into my book and was just like, be warned, bitches, right? This is not settled for all time. I’m like, there are Greeks in this horse. It’s a wooden horse with Greeks in it. Yes. And you know who put one of those Greeks in?

 

Melissa Murray Brett Kavanaugh. Yeah, let’s talk about him. So speaking of nonsensical ideas in oral arguments, Justice Kavanaagh once again brought up a pet idea of his sun setting. And it is this notion that there are sort of time limitations on statutory provisions, especially in the realm of civil rights. So the idea here is that even if the Voting Rights Act did at one point permit race-conscious redistricting That kind of action has to stop at some point because it will be no longer necessary because we are very, very, very post-racial. This is the same kind of logic the justices use to effectively end affirmative action programs in SFFA versus Harvard. And it also, I think, has really strong strains of the logic that we saw in 2013, Shelby County versus Holder, where the Chief Justice was hey, do we even need a pre-clearance regime? Because did you notice we elected a black man? We must be post-racial. Same logic. And I would just like to commend to y’all, and by y’al, I mean the justices on the court, this really insightful discussion of the court’s temporal obsession with racism and its durability and. That article is by Yuvraj Joshi, who is a blog professor at Brooklyn Law School. It’s called Racial Time, and it appears in volume 90 of the University of Chicago’s Law Review.

 

Leah Litman So the argument that the Sun has set on Section 2 makes no sense. First, Section 2 is recent, most recently amended 1982. Also, it is tied to facts on the ground, such as the extent of racial polarization and voting at the time, as well as the extent or racial segregation in the area at that moment. It’s not tied to old facts like Section 5 of the Voting Rights Act was. It’s got a built-in timeline. You don’t. That’s not you, Melissa. That’s Coach K. But again, we should all be scared, as it seems like even if the court doesn’t pull the trigger on that issue here, they may have other opportunities to do so in exchange with Coach Kavanaugh brought out that the ultimate unconstitutionality issue could well be before the court this fall. Yeah. So… Point of privilege, I realize I mentioned my book. I did not give the title. I am extremely, incredibly nervous about the upcoming book. So I’m just going to mention it again. The podcast is in your ear holes and not in a sub stack. So click the link in the show notes and you can get the pre-order. It is called Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. And it’s out in May.

 

Melissa Murray I’ve already pre-ordered many copies of it. If you’re someone who-.

 

Leah Litman That’s because you’re the best.

 

Melissa Murray Well, and if you’re someone to whom my love language of giving gifts extends, that’s the gift I’m giving.

 

Leah Litman I hope you enjoy. You will. Hi, it’s me. I’m the present. It’s me, my book. So, okay. Back to bad things.

 

Melissa Murray Back to bad things, I think it’s really important here so our listeners understand that these things are not occurring in isolation. I think we should link up Callais and what the court appears likely to do in Callais, which is to say that it is constitutionally suspect for state legislatures to try and ensure that black voters are represented in politics. We should link that ethos up with some of what the Trump administration is doing with its recent actions. Because again, all of this nonsense is inextricably intertwined. And so. One of the administration’s most recent executive orders is actually related to elections. To frame this, I should say at the top that the president cannot, through an executive order, alter the substance of statutes or amend them or even repeal them. That is something that has to happen through other vehicles like Congress, but it can’t happen through EOs. And yet, a lot of what this executive order dealing with elections tries to do, which is. on its face, wildly illegal, it’s essentially trying to alter, repeal, amend existing voting rights statutes to disrupt the voting process and to disenfranchise millions of voters. So Leah, tee this up and explain what this crazy EO is doing.

 

Leah Litman So not going to be able to take through all of it, but among other things, the executive order would direct the US Election Assistance Commission to change the federal voter registration form to require proof of citizenship in order to vote. It would also direct the Department of Justice to sue states that accept ballots received after election day. Just want to note that that idea relates to this absolutely bonkers case out of the Fifth Circuit that we had previously highlighted. That case had held states cannot accept ballots after Election Day. idea would have undermined or changed the election laws in more than 20 states, underscoring that the Fifth Circuit is basically the country’s petri dish for fascism. Executive order would also allow Doge and the Department of Homeland Security to subpoena voting rolls, perhaps to prove voter registration fraud, also likely to kick people off the voting rolls.

 

Melissa Murray And when they say require proof of citizenship, they usually refer to presenting your passport in order to register to vote. I just want to point out, there are tons of Americans who are naturalized citizens, birthright citizens, and they don’t have a passport. They’ve never literally left the country. So I mean, we’re basically requiring a passport, which you have to pay to get, in order to vote, like make that make sense. Again, just. There’s no need to do it. We know that evidence of voting fraud is glancingly rare, and it just doesn’t happen. We have really secure elections. This is just something that they are cooking up in order to disenfranchise people and make it harder for people to vote. So all to say, Article 2 seems to be very much on team anti-democracy, and it seems like this court is also on that team in Kelly. And again, worth underscoring. Calais isn’t just about the question of democracy. It’s about whether or not this democracy is going to be a multiracial, plural, inclusive democracy. And the court says, it seems, like maybe that’s suspect. TBD? Yeah, the court seems to say that’s a suspect. Who knows?

 

Leah Litman Hard to say. Also, as we noted last episode, the arguments in Callais seem to parallel some of the Trump administration’s anti, quote, DEI maneuvers in Callais and the executive branch. There’s an effort to brand any and all consideration of race or even acknowledgment of race or sex and or the presence of racial minorities or women in public life as presumptively suspect, if not illegal. Along these lines, the administration announced investigations into Stanford University and several University of California schools, accusing them of impermissibly taking race into account when making admissions decisions. I thought this was an odd selection of schools, given that California law has long prohibited public institutions from taking race into account since 1996, well before the SFFA decision did. But whatever. The administration also issued an executive order this week telling the vice president. as a board member of the Smithsonian to quote, prohibit expenditure on exhibits or programs that degrade shared American values, divide Americans based on race, or promote programs or ideologies inconsistent with federal law and policy, or that recognize men as women in any respect. So like these directives seem to relate to and the executive order mentions the National Museum of African-American History, also the National. Museum of Women’s History, because apparently we can’t even acknowledge that women or black people have history. To be clear, the National Women’s history.

 

Melissa Murray Museum is still being built. It doesn’t actually exist yet in full. It’s being planned and built and they’re still mad about that. They just don’t want it to live, apparently. The whole thing is insane.

 

Leah Litman The EO is kind of a censure of the Smithsonian, like saying we will restore the Smithsonian Institution to its rightful place, which is all kinds of awesome since by law, the chair of the Smithsonian Board of Regents is some guy named Chief Justice Roberts.

 

Melissa Murray I guess his boss is JD Vance now, weird, very awkward. He’s going to love that. The upshot of all of this is that the administration seems to be suggesting that getting rid of what they call DEI would return us to the Halcyon days of meritocracy. These Halcyion days are the ones where black people had to pay poll taxes and take literacy tests to vote. I should also remind people that these Halcyons days include. the period that predates affirmative action. So basically, the 1950s or so, where if you were competing on merit for a job or admission to a school, you actually only had to compete against a third of the population because the other two thirds were categorically excluded from the competition. But her merits, whatever, OK, whatever.

 

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Leah Litman Speaking of meritocracy and making America great again, what were the Trump administration’s very meritocratic national security goblins up to last week?

 

Melissa Murray Well, honey, it was a bad week for meritocracy because the meritorious, obviously qualified members of the Trump administration were on a meritocratic chat group that was encrypted end to end, but not a secured, classified information facility, and disclosed in it their plans to bomb Yemen. And they did this while also including in the chat a journalist from the Atlantic. All of this unsecured and on signal. as one who is meritocratic does.

 

Leah Litman If you have not read the Atlantic piece on this, you need to do so ASAP. The title is, quote, the Trump administration accidentally texted me its war plans, end quote, and it’s by Jeffrey Goldberg. The short of it is Goldberg received a connection request over a signal from a user that he identified as Michael Waltz, the national security advisor.

 

Melissa Murray Question, why is Jeffrey Goldberg of the Atlantic in Michael Waltz’s phone. Have they talked before?

 

Leah Litman He seems to have a lot of journalists on his phone.

 

Melissa Murray Hmm.

 

Leah Litman Yeah.

 

Melissa Murray Interesting. Anyway, there is a key passage. I’ll quote from it. At 11 44 AM, an account labeled Pete Hegseth posted and signaled a team update. And it contained operational details of forthcoming strikes on Yemen, including information about targets, weapons the United States would be deploying, and attack sequencing. End quote.

 

Leah Litman Earlier in the text chain, they had made sure to declare, quote, we are currently clean on OPSEC. The bombing plans revealed they seem to be bombing civilians. They referred to bombing the Target Girlfriend’s building. And the user, Michael Waltz, responds with some emojis, like a fist bump, an American flag, and a fire emoji. While Jeffrey Goldberg was in the signal chat, there was a notable admission, which is the commander in chief himself, leading me to wonder. unitary executive theory. Like, what? Is this now like a signal group chat theory of the presidency? I wonder.

 

Melissa Murray Well, not only was he absent from the chat, he seemed like a cipher onto whom they were projecting their deepest desires about bombing Yemen. So JD Vance is like, I’m not really cool on the bombing of Yemen. I don’t think the president really understands how this totally undermines his message on Europe. That’s going to go over big at their next one on one. And then they were all trying to figure out what had POTUS said about the bombing of Yemen. And it was all over the place. And then Stephen Miller came in. Apparently, he was the voice of POTus, or allegedly, Stephen Miller, came in, and he was voice of Potus. It was just like an utter shit show to which you could all like, where is the president? Is he golfing? What is he doing?

 

Leah Litman And it’s not just that Michael Waltz was adding an Atlantic journalist to the Signal chat as an indication that he doesn’t know how to use Signal properly. Waltz had also set his disappearing messages on Signal to four weeks. Four weeks! This is just basic signal hygiene.

 

Melissa Murray With the attack sequence.

 

Leah Litman Right, exactly, exactly.

 

Leah Litman Come on.

 

Melissa Murray I mean, again, only the best people. Just going to say, I think I’ve seen better cabinets at IKEA. IKEA has great cabinets.

 

Leah Litman They do this in one of them in more colors than the than this cabinet. This is not a mom or a hem

 

Melissa Murray Since these guys did such a bang up job with state secrets and war plans, the administration decided it was time to release yet another executive order. This one entitled, Stopping Waste, Fraud, and Abuse by Eliminating Information Silos. And this EO seems designed to allow more people and more entities in the federal government to take a look at your tax returns. And again, just to be clear, this would seem to violate the law, but laws are for suckers. And as a bonus, I think we know that with all of this sensitive data to which all of these federal government employees now have access under this EEO, we can be assured that our very important private data will be kept secure and certainly out of any group chats with Atlantic journalists.

 

Leah Litman For sure. Because disclosing bombing plans is so utterly indefensible, we wanted to share with you the administration’s attempt at a defense, which is White House press secretary Caroline Levitch tweeted, quote, the Atlantic has conceded these were not war plans. This was a reference to the fact that the second Atlantic story, which disclosed the actual bombing plans after the administration first tried to deny that they had in fact disclosed plans at all. had attack plans in the story title, not war plans in title? Checkmate, Libs! No, forget check.

 

Melissa Murray That’s a law school argument, like, girl, you are a textualist. That is textualism right there. She is her own little textual healer. Good for her. Indeed. Owned. Boomed. Lawyered. Wired also reported that this administration doesn’t seem to be super great on all of the public information that they’re disclosing. And apparently, Mike Waltz and Susie Wiles, the White House Chief of Staff. had their Venmo friends list set to public. They later made them private shortly after Wired asked the White House about it. But according to Wired, quote, experts say it’s a counterintelligence nightmare, end quote. And the reason why it’s so bad to have your friends list set to publish is because it links you to politicians, doctors, tailors, lobbyists, and other people who you’re sending money to. And basically, they can cobble together all of your networks. Anyway, bad idea. But because all of these good things tend to come in threes, Dear Spiegel also reports that they were able to find, quote, mobile phone numbers, email addresses, and even some passwords belonging to top officials in the Trump administration, including Mike Waltz and Pete Hegseth.

 

Leah Litman What could go wrong? This is a real fucking banner week for men whose entire personality is complaining that DEI leads to unqualified people holding positions. But back to the OG NatSec disaster. When asked whether Mike Waltz, the national security advisor who was credited with initiating the Signal Chat and inviting the journalist to join, had made a major national security breach, the president of these United States had this to say.

 

Clip No, I don’t think he should apologize. I think he’s doing his best. It’s equipment and technology that’s not perfect, and probably he won’t be using it again, at least not in the very near future.

 

Leah Litman Hell of a job, Brownie.

 

Melissa Murray Yes.

 

Leah Litman Hell of job, brownie.

 

Melissa Murray Take it back all the way to 2005. I had real post-Katrina energy. That is a deep cut for all you Gen Xers in the audience. Just got to say, I am loving this final season of the United States. It’s amazing. Really good. I was really waiting for one of these. clowns to blame this massive security breach on DEI. And this is how I imagine it would go. George Washington Carver, the famed African-American inventor, used leftover peanuts to create an encrypted end-to-end messaging system that Mike Waltz innocently got sucked into like a mouse on a peanut butter rat trap. and Then Mike Walsh decided to use the peanut-based end-to-end encrypted app to transmit sensitive information about bombing targets, which is why we now must use merit-based systems instead of DEI to distribute leftover peanuts. Maga. That’s it.

 

Leah Litman Don’t do their work for them, Melissa.

 

Melissa Murray It’s inevitable. I mean, I’m sorry, George Washington Carver has to be thrown under the bus for this, but it’s like and the leftover peanuts too. But it’s inevitable

 

Leah Litman Not going to say I told you so, but I did kind of predict a massive security breach. I’ll be it for Doge. I thought they were going to leave personal info at some strip club during a ketamine bender.

 

Melissa Murray Look, yours had more white lotus energy. I’m not going to lie. It had more White Lotus energy. This definitely had homeland energy. Homeland slash Veep. Like that’s Yeah, that’s what we’ve got here. Speaking of big balls, big balls and Doge are going to serve as our transition to talking about the judicially ordered, rather than Doge ordered, destruction of the federal government and administrative state as we know it. Because we do have more argument recaps to get to. Wait, wait, that the transition you construct. I put together that transition. I’ll own it. I’ll owned it. What we’re doing

 

Melissa Murray Well, you’re doing more owning than any of the folks in the Signal Chat did. I mean, like that’s a way to take responsibility. Like you’re modeling. I like that. You’re modeling for them. You know, these folks went up on Capitol Hill and acted like, what’s the problem? What are you talking about? Why are you so sensitive? Like, I’m sorry I hurt your feelings. People text bombing plans.

 

Leah Litman People text bombing plans to L.A. journalists like all the time.

 

Melissa Murray Like, I’m sorry you can’t take a joke. Look at that, the energy. I’m just sorry we were trying to be transparent, right? Like, now you object to transparency. I’m I’m we’re trying to help innovators by using their apps and publicizing them, small businesses.

 

Leah Litman Well, I also loved how they thought it was like a big on to note that the Atlantic had called signal secure. And it’s like, yeah, it’s secure, you adults. That doesn’t mean you add Atlantic journalists to your chat, right? That would make it insecure, you freaks.

 

Melissa Murray I also love, after we spent probably, I don’t know how many thousands, maybe millions of dollars to put skiffs in the homes of these people so they could do their work while they are in their private lives, they’re still using publicly available crap that you can download from the Apple Store. How’s that for government waste? Give people back Medicaid and cut the skiff budget. Seriously.

 

Leah Litman Um, okay, but, but now really back to really.

 

Melissa Murray Okay, really focus, we’re gonna really focus. The core dojing, the administrative state.

 

Leah Litman OK, so the court heard a trilogy of cases that could, in different ways, dramatically reshape the administrative state. Surprise, said no one. We are going to start with the smaller ones before we discuss the big kahuna, the big ball, if you will.

 

Melissa Murray The smaller, wonkier cases are EPA versus Calumet Shreveport refining and Oklahoma versus EPA. Both cases are about venue provisions in federal law. So venue provisions tell it against where they can or where they must file their cases. The big question in both of these cases is whether certain kinds of cases that challenge certain kinds EPA determinations have to be filed in the DC circuit, which is mostly saying. or whether they can be filed in other circuits where you basically have a grab bag of just randos and homosexuals to choose from. So if litigants could choose to bring more cases challenging EPA policies, say, in the Fifth Circuit, for example, not to name names, but in the fifth circuit, it would clearly gum up many more EPA policies because the 5th Circuit. is absolutely hostile to the EPA. And FYI, the court heard another case along similar lines, this time involving the FDA a few months ago. That was FDA versus Whiteline. And the same question, did you have to file this in DC or did you had to file in some other place like the Fifth Circuit?

 

Leah Litman It was a little hard to read the justices in these EPA cases. The Democratic appointees seemed receptive to the federal government’s argument that these cases have to be filed in the DC Circuit. Justices Thomas and Gorsuch were more obviously hostile to that position. They were basically accusing the federal government of possibly gaming the venue provisions by writing EPA rules in certain ways that would channel rule challenges to the DC circuit. Alito also seemed skeptical of the federal governments position. It was harder to read Justice Barrett, who didn’t speak much. The whole idea of the…

 

Melissa Murray EPA sort of gaming the system. Like the EPA is in DC. Like a lot of these administrative law cases are channeled into the DC circuit because that’s where the agencies are. I mean, it’s just.

 

Leah Litman That notion came up in the federal government’s closing, as you will hear in a bit. Okay, just.

 

Melissa Murray Previewing. Anyway, Justice Kavanaugh seemed almost sympathetic to the effort to steer cases to the DC Circuit, which shouldn’t surprise you, because please don’t forget, he was once a member of the DC circuit fraternity. I believe they call it Delta Chi Chi. But it’s as. But as is often the case with Coach Kavanaugh, it’s unclear whether he’s actually going to side with the government here, mostly because the government in question is an administrative agency and not Big Brother Almighty POTUS. That is another deep cut for the Spike Lee fans. Maybe Spike Lee movies are unconstitutional now, too. I’m waiting for that EO to come out. Could happen.

 

Leah Litman Yeah, so the advocate in Oklahoma versus EPA made sure to acknowledge that they weren’t dissing the DC circuit as you can hear here.

 

Clip It is true that the judges of the D.C. Circuit are excellent judges and work very hard, but…

 

Leah Litman And as I was suggesting just a second ago, the federal government’s closing argument in Oklahoma versus EPA had this little, I’m not sure what to call it, passive aggressive petty closer that just had to highlight.

 

Clip I guess the last thing I wanted to say is I’ve always bemused in these papers by references to the D.C. Circuit as a hometown court for EPA, because if location in D. C. meant that the D C circuit is a hometown Court, then this Court would be a hometown Court for EPA and I’ve never had that perception. Thank you, Mr. Chief Justice.

 

Leah Litman ZING!

 

Melissa Murray Again. The subtext in these cases, the through line, maybe, is the possibility that you would actually have to litigate your cases in the Fifth Circuit. Basically, whether litigants can choose where they want to file their cases. Because the Fifth Circuits just really going to be bad for the EPA. And I think everyone recognizes that. Although it is worth noting that. The Fifth Circuit has some imitators. There are some appellate judges who seem very, very interested in transforming their own circuits into black holes where progressive policies can go to die. So for example, Ninth Circuit Judge Lawrence Van Dyke, who is a Trump appointee, put together a video dissent in a case called Duncan versus Bonta, which is a Second Amendment challenge. So in this nearly 20 minute video descent. Judge Van Dyke assembled various firearms in an effort to refute the majority’s conclusion that a magazine containing more than 10 rounds of ammunition is an accessory and not a firearm for purposes of the Second Amendment. And I just have to say, oh my gosh, I’ve never seen anything like this. A 20 minute video dissent. And the production values were A plus. They spliced in video from the oral argument.

 

Leah Litman It was well done and if you have not checked it out, I would encourage you to do so. The stills alone are insane. I’m not sure what to say other than, you know, shooter’s gonna fucking shoot, of course.

 

Melissa Murray Like, who’s the clerk who to hold the camera and zoom in. What’s that clerkship interview like? What are your camera skills like? Do you have a degree in cinematography?

 

Leah Litman Well, in your application, you have to submit home videos and pictures that you’ve taken on guns or other things. America’s funniest home videos, only judicial version. Yeah, speaking of America’s Next, Jim Ho is going to be mad AF that he did not come up with the idea of filming some amosexual porn in his quest to be America’s next top Supreme Court justice. I mean, are you even hoeing if you’re not filming your dissents? That’s the question. as Tim Gunn basically said, “‘Jim Ho, but make it Ninth Circuit.'” The Fifth Circuit, however, was not going to let the Ninth circuit pull ahead. Judge Andrew Oldham, a possible Supreme Court nominee in the Trump administration, just fucking wilded out in an opinion criticizing Biden’s decision to commute a man’s death sentence. The opinion not so subtly suggests that President Biden was cognitively impaired and did not know what he was signing. So in the first footnote, the judge writes, questions have arisen about the flurry of last-minute pardons issued by the Biden administration. At least one was issued by mistake. Some or all were allegedly effectuated by auto pen. And then it includes as a citation slash quotation Speaker Johnson stating that President Biden, quote, genuinely did not know what he had signed, end quote, in at least one instance. The pick me, choose me energy could not be harder. Also, it wasn’t a pardon, it was a commutation. So also that so it’s not just the Supreme Court and doge that is all down with ending the administrative state It’s also the lower courts as well. So while we were recording, we just got news that the US Court of Appeals for the DC Circuit on a 2 to 1 vote allowed Trump to fire the members of a multi-member independent board, including Gwen Wilcox of the National Labor Relations Board and Kathy Harris of the Merit Systems Protection Board. Recall that the idea that the president cannot fire the heads of multi-members independent agencies That is the basis for the Supreme Court’s decision in Humphrey’s executor, the case that allowed for the constitutionality of independent agencies. And it seems like that issue could now be teed up for the supreme court. And in any case, these decisions allow Trump to fire the officials and are going to allow considerable damage to the agencies, even if in some unlikely event, the court. decides to uphold Humphrey’s executor and sustain the constitutionality of independent agencies. The decision was two to one. Two judges in the majority were Judge Justin Walker, appointed by Donald Trump, and Judge Karen Henderson, another Republican appointee. The judge in dissent was Judge Patty Millett. Yes, speaking of sunsetting the administrative state, now the possible very big blow to the administrative state that the Supreme Court heard, which is FCC versus consumers research.

 

Melissa Murray In this case, the court is being asked to revive some version of what is called the non-delegation doctrine. The non- delegation doctrine is the notion that Congress cannot, outside of some narrow exceptions, delegate some of its authority to agencies to make rules governing what businesses and people do. Now, all of this is very interesting because agency regulation, to paraphrase Justice Elena Kagan, is basically how much of government works today. And this is why the non-delegation doctrine hasn’t really been a thing since the 19th century.

 

Leah Litman So, you know, that is what they are coming for, i.e. most of government. This would be a huge, huge, HUGE deal. And not surprisingly, Justice Elena Kagan, former administrative law professor and dean at Harvard Law School, was having none of it. She told the advocate who was arguing that the law was unconstitutional that he was advancing, quote, a not credible reading of this statute, end quote. And because, as I said up top, we are looking for positivity in bright spots, I wanted to play a clip of Justice Kagan fileting said advocate.

 

Clip You’re saying that we should interpret this statute to say that that word sufficient is not imposing a requirement, meaning sufficient what is required to do these services, but not more than that.

 

Clip Yes, because that’s what the FCC itself has said for 30 years.

 

Clip Okay, I’ll add that to my list of things that I think would be an unreasonable statutory interpretation. Sufficiency means like when I call the pizza operator and say, I want you to send me pizza sufficient for 10 people, and then an 18 wheeler shows up. That is not an accurate understanding of what I asked for.

 

Leah Litman This is like ASMR to me.

 

Melissa Murray Justice Alito also seemed to want to throw his hands up at the consequences of the court saying that all delegations to administrative agencies are now potentially suspects. So let’s hear a clip.

 

Clip Another concern is the effect on other statutes, and I sort of throw up my hands at dealing with this. This has come up before, this sort of argument made by the Solicitor General has come up before. It was made in the CFPB case last term. I don’t blame the government at all for making it, but the argument is made that But if you decide a case in a particular way, it is going to result in… imperiling, dooming, a whole list of statutes, and maybe that’s true, maybe that isn’t.

 

Leah Litman He’s like, what’s the big deal? Maybe we’re gonna blow up government. Maybe we won’t. Maybe we shouldn’t even try to figure out if we are. It reminded me so much of his discussion of the reliance interests in Dobs where he’s like some people say this is gonna destroy women’s lives, but who’s to say, right? Can’t possibly think about that.

 

Melissa Murray You know, it would require thinking of women and I definitely can’t do that.

 

Leah Litman On the particular question about whether the statute in FCC versus consumers research is unconstitutional, I think there is a pretty good possibility that the court might uphold this statute as a permissible delegation. But I’m just going to plant this flag now. I’m worried they’re going to refashion the law while doing so and thereby evade some public scrutiny and basically say, this delegation passes muster because there’s a ton of guidance in this statute to the FCC and implementing entities and then kind of leave open whether they are going to go piece by piece through other statutes that might not provide quite as much guidance and basically invite lower courts to do so. That’s my kind of concerning read coming out of this oral argument.

 

Melissa Murray Another really interesting part of this oral argument was where Justice Barrett seemed to be. She kept going on and on about the consequences of making a decision on the non-delegation question. And she seemed especially concerned about the consequence to marginalized communities, like, for example, the Native American communities who would be deprived of broadband access if this statute was invalidated under the non delegation doctrine. I just had to wonder, has she been in some kind of sister circle with the liberal justices? I mean, if so, more of that, please. But I thought it was really interesting that she had a more pragmatic view of it and was sort of centering it on these marginalized communities.

 

Leah Litman Yeah, so one angle, and this is just way too conspiracy theory, tin hat, but I’m going to outlay in it anyways. Put your tin hat. Put your Tinfoil tiara on. OK, great. Is this program, which the Supreme Court might blow up, is something that disproportionately benefits rural communities. And a part of me wonders if they actually don’t want to disrupt broadband and internet access. and Telecom access in rural communities because it is right a cycle for so much disinformation right via X and Meta Facebook and other social media again

 

Melissa Murray No, I actually don’t think that’s it. I don’t, I don’ think that super tin-hatty.

 

Leah Litman I appreciate that.

 

Melissa Murray Well, there’s been all of this reporting about how the media universe has become much more right-wing.

 

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Leah Litman So we noted last time that the Supreme Court’s quest to demolish the administrative state parallels in many respects, doge and big balls in the Trump administration’s efforts to demolished the administrative state and federal government. But there is at least one part of the federal government that the Trump Administration is very enthusiastic about. And that’s immigration and exclusion and expulsion and rendition and deportation and snatching people off the streets.

 

Melissa Murray Since we last recorded, there seemed to be not one, not two, but six additional cases of the administration whisking people away. Occasionally on the ground that Secretary of State Marco Rubio has determined that the individual’s presence in the United States has an adverse effect on U.S. foreign policy. That was the logic of the Administration’s detention of legal permanent resident Mahmoud Khalil. I will also note, though, that in some of these cases, we just don’t know what the theory of the detention is. So a lot of this is just rank speculation. Some of the new cases include a Georgetown student, a Cornell student, a Tufts University graduate student, a student at the University of Alabama, and yet another Columbia student. And what do all of these targets have in common? Well, one of these individuals was a student who challenged a Trump executive order on immigration. Another co-wrote an op-ed that was critical of Israel and the university’s response to October 7 and the resulting protests. And there’s also video footage of that woman, that student who wrote the op-Ed, being dragged off the streets and arrested by unidentified officers who are in plain clothes and wearing masks and do not actually identify themselves as police or law enforcement officials until about 30 seconds into their interaction with her. All of this is very much giving some handmade tale vibes, all a little concerning, by which I mean a lot concerning.

 

Leah Litman This is what it means to literally disappear people off the streets. Another case of a detained student is a Russian scientist at Harvard Medical School. The woman who’s detained is a critic of Vladimir Putin and could now be deported to Russia, where she would certainly face arrest, if not worse. On the issue of immigration slash expulsion slash rendition, there have also been developments in the matter of Trump’s invocation of the Alien Enemies Act to summarily expel people from the United States and render them to foreign prisons, all without due process. Since we last recorded, Trump said, maybe in an interview, maybe he didn’t sign the Alien Enemys Act proclamation. Um I took this as like a glimmer of a good sign, assuming it wasn’t about senility, that he recognizes that this is not about sunsetting, that he recognized this is an issue that he’s getting pushback on and maybe should abandon. I don’t know, that’s my ultimate fingers crossed Kate Shaw moment.

 

Melissa Murray Well, uncross your fingers, because Secretary of State Marco Rubio says that the administration is considering an offer from El Salvador to take in our American citizens who have been convicted of criminal acts to house them in El Salvadoran prisons. Amazing. What could go wrong? According to PBS, quote, Rubio reached an unusual agreement with Salvadoran President Naib Bakule a day earlier. that the Central American country would accept US deportees of any nationality, including American citizens and legal residents who are imprisoned for violent crimes. Marco Rubio did note that, quote, there are obvious legalities involved. We have a constitution, end quote. I’m glad he remembered that. Good for him. But what is a little constitution between fascists, Melissa? Really? I mean, very little given this, as Rubio put it, very generous offer.

 

Leah Litman Constitutions are for cucks, in the Alien Enemies Act case that is quickly making its way up through the courts, the Court of Appeals for the DC Circuit rejected the government’s attempt to appeal and pause Judge Boasberg’s temporary restraining order that barred the administration from relying on the Alien enemies Act proclamation to deport, expel, render individuals. The DC Circuit’s action. Should note does not concern whether the government has to bring back the people it already summarily expelled

 

Melissa Murray The decision was two to one with Judge Justin Walker, a Trump appointee in dissent. We wanted to play two exchanges between the government’s lawyers and Judge Patricia Millett. We thought these exchanges were basically good examples of why the government lost so roundly with the DC Circuit. So here’s the first one.

 

Clip There were plain loads of people. There were no procedures in place to notify people. Nazis got better treatment under the Alien Enemy Act than has happened here, where the proclamation required the promulgation of regulations. And they had hearing boards before people were removed. And yet here, there’s nothing in there about hearing boards. There’s no regulations. And nothing was adopted by the agency officials that we’re administering. this. People weren’t given notice. They weren’t told where they were going. Those people on those planes on that Saturday had no opportunity to file habeas or any type of action to challenge the removal under the AEA. You’ve agreed that two of those airplanes, people were moved under the AEA.

 

Leah Litman Signs your argument is not going well. Judge Millett says you are treating people worse than the federal government treated actual Nazis.

 

Melissa Murray Or, put differently, actual Nazis got due process, and there’s no due process here. So there’s that. Here’s another banger from Judge Millett.

 

Clip If the government says, we don’t have to give process for that, then y’all could have put me up on Saturday and thrown me on a plane, thinking I’m a member of Trendy Ragwa and given me no chance to protest it and say somehow it’s a violation of presidential war powers for me to say, excuse me, no, I’m not. I’d like a hearing. He wouldn’t say that.

 

Clip Your Honor, obviously nothing of the sort is presented by the record here.

 

Leah Litman And to be clear, that’s not a no to the question of whether they can put citizens and federal officials on planes to summarily expel them and render them to foreign prisons without due process.

 

Melissa Murray Again, remember that very generous offer from El Salvador to the US.

 

Leah Litman My bad. Can’t look a gift horse in the mouth, right? I gotta keep talking about the horse. The horse has Greeks in it. Is it unconstitutional to accept gifts from foreign leaders, militia, Melissa? Come on. Militia. I’m just plopping all my words. I should know at this point, the energy is at a level. I am hopped up on cold medication. I have COVID, probably should have disclosed that upfront, but it’s all happening now.

 

Melissa Murray Woo. And Kate’s not here, so we have no guardrails. Basically, we’re like Doge. We’re like doge, no guard rails, no restraints. We’re just doing it. OK. It’s been reported that some of the individuals expelled to El Salvador might not actually be Venezuelan, might not even be gang members. One person, according to the Miami Herald, has legal refugee status. Another was deported because they have a tattoo. But it turns out… The tattoo is not a tattoo associated with Tren de Aragua, the Venezuelan gang that the administration has declared an enemy of the United States. It’s an autism awareness tattoo because that person’s brother has autism. Also, per the Miami Herald, the administration may have sent a married father with no criminal record in any country to an El Salvadoran prison because of a paperwork error. man’s paperwork has two different people’s ID numbers listed and the wrong last name. Just going to pause to note here that one of the reasons why we have due process is because the government isn’t infallible and they do make mistakes and you give people due process so they have an opportunity to present their case and show that the government has made a mistake.

 

Leah Litman Also gonna note that the idea that the government would send someone to a foreign prison on the basis of a paper work air is literally the basis of like the farcical satire in a novel Brazil. Again.

 

Melissa Murray You’re assuming this administration reads books. Good point. The government has now asked the Supreme Court for relief from the order restraining them from relying on the Alien Enemies Act to summarily expel individuals from the United States to El Salvador. Now, that doesn’t directly tee up the government’s possible non-compliance of the order. This is the whole question of whether Judge Boasberg told them to turn the planes around, and they were like, Make me. Obviously, though, it does perhaps color the judge’s assessment of this case and maybe even the justice’s assessment of this place. In the portion of the Alien Enemies Act case that’s still now at the district court, the government officially invoked the state’s secrets privilege in order to avoid answering questions about whether or not they had been non-compliant when Judge Boasberg issued that order to turn the planes around. So again. Really not the right person to be making the state secret argument to, since Judge Boesberg, for many years, served on the FISA court. The FISA Court deals with state secrets all the time. But keep playing, I guess. Play stupid games, win stupid prizes.

 

Leah Litman And would also just like to note the timing here that for the record, the federal government invoked the state’s secrets privilege in the same week that we learned that bombing plans and military campaigns aren’t so secret. In fact, they can be conducted via messaging apps that any person can download from the App Store and that include, right, journalists. So a case was filed challenging the administration’s use of signal. on the ground that their use of that app was intended to avoid their compliance with the presidential records act which would require agencies to keep records of their decision-making policies and procedures. Instead of allowing them to disappear after four weeks. After four weeks, right. Or sooner if you know how to fucking use Signal. Guess who that Signalgate case was assigned to.

 

Melissa Murray I’m gonna guess, is it Judge Boasberg who keeps getting all these?

 

Leah Litman It is, girl.

 

Melissa Murray In the SignalGate suit, Judge Boesberg issued a quote unquote compromise order in joining the Trump administration defendants to preserve all signal communications between March 11 and March 15. And Judge Boasberg apparently has a great sense of humor because he knows who he’s dealing with. And he said very clearly, don’t worry. It’ll be in writing. Remember, his last ruling wasn’t in writing, and they were like, do we have to listen about turning around the plains? I don’t think so. Put it in. writing. So he is. Yeah. Okay.

 

Leah Litman Finally, some additional legal culture on the legal profession. A lot of it isn’t good. Some of it is, though. So we are going to try to end on some notes of optimism. So the president, this is part of the bad part, I’ll warn you. The president signed an executive order that seems aimed at the legal professional generally. The order rants about how the immigration bar and powerful big law pro bono practices participate in the immigration system and actually assist their clients. And so the order directs the attorney general to seek sanctions against attorneys and firms who engage in frivolous, unreasonable, and vexatious litigation. Just like to note, the call is coming from inside the house. So have you heard what your own DOJ lawyers are saying? Also, the defamation claims. Not great either. And so this executive order, which focuses on representation and immigration matters, kind of undermines external checks on what the administration is doing in immigration. And at the same time, they have fired everyone in the Office of Civil Rights at the Department of Homeland Security, thereby disabling internal checks as well. No checks, and that checks out. More news on law firms. So in the wake of Paul Weiss’s settlement with the administration, there has been a lot of discussion about why Big Law could not act. collectively. The New York Times reported that at least part of the failure is because some other firms targeted the law firm during their precarious situation. So according to the New York Times, the firm’s competitors were allegedly trying to recruit Paul Weiss lawyers and their clients. And the Times named Kirkland and Ellis, Sullivan and Cromwell, and Wachtell Lipton, which if true is obviously extremely disappointing. New York times also reported that Skadden has been talks with the administration to come to some sort of deal. And just before we recorded, it came out from the White House pool that Trump announced a deal with the Skadden law firm, in which the firm agreed to provide $100 million in pro bono work that the administration approves of. Okay. So that’s the still bad. Um, we’re going to transition to more bad before we get to a little

 

Melissa Murray Now, none of this means that the president has stopped targeting law firms. The most recent victims of EOs targeting their operations have been Jenner& Block and WilmerHale. The latest EO directed at Jenner subjects it to the same sanctions requiring contractors to disclose whether they do business with Jenner, barring Jenner’s lawyers from federal buildings, rescinding security clearances, and things of that nature. The Wilmer-Hale EO does much of the same thing.

 

Leah Litman And we should say like the executive orders are similar and that both of them on their face make clear that they are motivated by retaliatory animus and all kinds of unconstitutional motives. So the Jenner executive order, for example, singles out the fact that one of the partners at the law firm is Andrew Weissman, a member of Robert Mueller’s investigative team. Andrew is also Melissa’s colleague and co-author. The executive order bizarrely faults Weissman for devastating tens of thousands of American families who worked for the now defunct Arthur Anderson LLP, which Arthur Anderson enabled massive fraud and contributed to the Enron crisis. Weissmen was one of the federal prosecutors who worked on the case in the early 2000s. And then Wilmer Hale, I should note my former law firm where I worked for two years, was also targeted. Robert Mueller returned to be a partner there. Then they also singled out the law firm for a press release? that the firm released celebrating hiring Mueller and some other individuals as if they wanted it to be more apparent that they were punishing entities for First Amendment speech. But as I suggested up top, this is going to transition to slightly happier news, which is Wilmer and Jenner have opted to fight back. Both have already filed lawsuits. Wilmer is represented by Paul Clement and Jener by Cooley LLP. Cases filed in the district court for the District of Columbia. And hopefully, there will be an expeditious resolution on them.

 

Melissa Murray The Supreme Court has decided to show us their work. So let’s turn to some opinion recaps. We got an opinion in a much anticipated case that is Bondi versus Vanderstoc. Used to be Garland versus Vanderstock, but now we have Pamela Jo Bondi, our new attorney general. So it’s now Bondi vs. Vanderstock. And in this case, the Supreme Court upheld the Biden administration’s regulation of ghost guns. Remember, ghost guns are the untraceable firearms that can be quickly assembled from kits. The challenge regulations subjected ghost guns to all of the same federal firearms restrictions to which traditional firearms are subject. The decision here was 7 to 2, as written by Justice Gorsuch. No credit at all for guessing who the two dissenters are. Spoiler alert, it’s Justice Alito and Justice Thomas. But big props to our in-house optimist, Kate Shaw, who predicted this result when we recap the oral argument a while ago. Although I will just suggest right here that I think a lot of the outcome here might be attributed to what can be known as the Luigi Mangione effect, which is to say that Luigi Mangione. allegedly used a ghost gun in the alleged killing of United Health Care CEO, Brian Thompson. And I can’t help but wonder if that implicated some of the decision making in this case.

 

Leah Litman Also wanted to give some credit to our forever solicitor general, Elizabeth Prelogar, who literally assembled gun kits in order to prepare for the argument so she could talk to the justices about the mechanics of doing so. The court also issued a decision in delegati versus United States, holding that a crime committed by omission that is a failure to act can constitute a violent felony that has as an element the use of force against another. and therefore may subject a defendant to the mandatory minimums of the Armed Career Criminal Act. This was a 7-2 opinion. Justice Gorsuch joined by Justice Jackson dissented.

 

Melissa Murray In Thompson versus United States, the court held that the prohibition on knowingly making false statements does not criminalize misleading statements. This is the case, you’ll recall, where a mortgagee referred to a $200,000 loan in discussing his remaining obligations. He had taken out a$ 200,000 dollar loan, but other loans as well. The opinion here is by the Chief Justice, and it was unanimous. Although Justice Alito wrote a separate concurrence urging an expansive interpretation of the term false because of course he did. Justice Jackson wrote a concurrence here saying that the jury had been properly instructed in this case and that I think means that she believes that the defendant’s conviction is very likely to stand here.

 

Leah Litman In United States v. Miller, the court held that the Bankruptcy Code’s waiver of sovereign immunity in Section 106 applies only to claims under Section 544 of the Bankrupcy Code, not to state law claims nested within Section 5 44 claims.

 

Melissa Murray All right, we wanted to do a couple court culture notes. We couldn’t really figure out how to incorporate these into the case recaps or the argument recaps, but we just wanted to keep you abreast of some of these developments. So the first thing we wanted do was take a moment to hate read this flaming garbage from the Wall Street Journal’s editorial board, which drafted an op-ed that basically told the president to simmer down on this whole attacking the courts thing. Why should the president simmer down, you ask?

 

Leah Litman The Wall Street Journal wrote, quote, the White House strategy of bashing judges and jamming the Supreme Court could backfire in spectacular fashion. And then the piece goes on to note that Justices Thomas and Alito might decide whether to retire soon. And then it says, quote neither one is likely to resign if he lacks confidence in Mr. Trump’s judgment about who might be his successor. They have too much respect for the law and the court to resign, if they think Mr. Trump will nominate a results first law second legal hack, end quote. And they say comedy is dead!

 

Melissa Murray I mean, that’s a tight five if I ever heard one. Comedy is no longer dead. Comedy is not longer dead, yeah. All right, let’s try and land this plane on a happy note. Listeners will remember that we did a recent deep dive with David Enrich about his new book, Murder, the Truth, and the ongoing conservative quest to overrule New York Times versus Sullivan, which would undo a major precedent. and would allow the media to be sued more easily, completely undermining protections for a free press. Well, in that interview with David Enrich, we noted that pending before the court was a petition brought by Steve Nguyen seeking to have New York Times versus Sullivan overruled. Well, we just learned that the court declined to take up that case. So that is something for now, right? so Okay, because we’re gonna land this plane on a happy note, we’re going to do what we’ve been doing for the last couple of episodes, which is ending with things that we read, watched, saw and liked this week. So Leah, I’ll let you go first.

 

Leah Litman I read the lawsuits by Wilmer Hale and Jenner& Block challenging the wildly unconstitutional executive orders that threatened them, the legal profession, and the rule of law. These are two big firms that are trying and I should also note, again, I previously noted I worked at WilmerHale. I love the attorneys there. I learned so much from them and just extremely proud to see this. So. Another thing I read that I loved is Judge Howell’s order rejecting a request for her to recuse in the challenge to the executive order targeting the Perkins-Cooey law firm. So she wrote, quote, this line, which sounds like a talking point from a member of Congress rather than a legal brief from the United States Department of Justice. Yeah, read the order. It’s awesome. Something else I read is the new book After Dobbs. It’s a new book by David Cohen and Carol Jaffe. and then some other kind of media experiences. I really like Lady Gaga’s new album, Mayhem. Enjoyed listening to it, have been listening to it repeatedly, saw the movie Black Bag, would recommend that as well. And then I started reading the Rexford and Sloan mystery series, which has been a very fun fiction detour.

 

Melissa Murray I really loved listening to last week’s episode of Strict Scrutiny, because I, of course, was not on it. So it was always great to be part of the audience and not necessarily a participant. So very well done, ladies. Enjoyed it a lot. While I was gone, I read a fantastic new book, A Season of a Light, by Julie Arumanya, Nigerian author. It’s just absolutely magnificent. I also read a lighter book. Sort of light is about a murder. It’s called The Note by Alifair Burke. Alifar Burke is a law professor at Hofstra, but also an award-winning mystery novelist. Absolutely fantastic and fun, very easy read. I also watched Yacht Rock, the documentary. And I have to say, fucking amazing. I loved it. I love, love, loved Yacht rock in all of its forms. But this was so good, because it was like a genealogy of yacht rock, like sort of piecing together. you know, this band and this band, and this is where this influence comes from. I just thought it was like fantastic. It was like a Punnett square for easy listening music. And it was fantastic and I loved it. Also, Michael McDonald was all over it. And I just love Michael McDonald. Like he’s in all the yacht rock songs and he’s just fantastic. So highly, highly recommend. Then I had some social media that I really loved this week. So I love. Gwyneth Paltrow and the other M.M., Megan Sussex, on Instagram, quashing any rumors of beef between them and showing that ladies who live in Montecito and have lifestyle brands can get along. And can’t we all get along? There’s room for everyone here. And there’s no need to be bitches about everything. So well done to both of them. I also loved the social media fallout from Signalgate. So for example, Christian Snyder, whom I don’t necessarily follow, but this came up on X, he posted this tweet, which was fantastic. It was, new phone, who theese. Exactly. Very, very good. And then another banger, Leda McCulloch-Soletsky on Blue Sky tweeted, text stop to opt out of war plans. And I was like, that sounds perfect. Like, no, no. It’s 10 out of 10. Absolutely amazing.

 

Leah Litman I don’t know if all of your signal chats were renamed to no Atlantic journalists here or no bombing plans allowed but several of mine were.

 

Melissa Murray I mean, I think, yeah. I think we’ve got to change some of these signal chats to something a little pithier. Yeah. I do like who the PC group, though, for everything now. Yeah, good. All right. We have to do some housekeeping before we close up shop. On the newest episode of Assembly Required, Stacey Abrams sits down with Sky Perryman, president and CEO of Democracy Forward, to break down Trump’s most brazen legal battles, from ignoring federal injunctions to unlawfully detaining immigrants. Mandela Barnes joined Stacey to discuss Wisconsin’s crucial Supreme Court race, an election that could reshape 2025. You can tune into those important conversations now on the assembly required feed or on YouTube.

 

Leah Litman Hey, Wisconsin, you guys have a super important state Supreme Court election this Tuesday, tomorrow, between a qualified judge named Susan Crawford and an Elon Musk-backed manga guy. This is the first major race since Trump won in November and will determine the majority on the Wisconsin Supreme Court. Get everything you need to vote or volunteer before Tuesday, April 1st, i.e. tomorrow, at votesaveamerica.com. Paid for by Vote Save America. You can learn more at votesaveamerica.com. This ad has not been authorized by any candidate or candidates committee.

 

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