Share This Podcast

Melissa, Kate, and Leah can smell the fascism in the air as President Trump forces troops on California protesters. They discuss how he is (yet again) pushing the boundaries of authoritarianism, provide an update on the Kilmar Abrego Garcia case, and unpack another flurry of Supreme Court Opinions. Then, they talk trans rights with Chase Strangio, deputy director for transgender justice and staff attorney with the ACLU. Finally, a bit of fun with a game about iconic breakups—political and otherwise. This episode was recorded live from Sony Hall in New York City. 

Hosts’ favorite things:

• Kate: “How 2000s Culture Messed Us Up”, (The Culture Study Podcast); “Delay, Interfere, Undermine”, T. Christian Miller and Sebastian Rotella (ProPublica); Federalizing the California National Guard, Steve Vladek (One First)
• Leah: This Is What Autocracy Looks Like, Michelle Goldberg (NYT); Argent, who dressed the hosts for the show
• Melissa: What the Hell Is Posse Comitatus Anyway? Elie Mystal (The Nation); The Better Sister (Prime Video); Sarah Sclarandis’ shoes

 

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

• 10/4 – Chicago

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

Order your copy of Leah’s book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes

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 Welcome to a very special episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. And we are coming to you live tonight from Sony Hall in New York City.

 

Crowd Applause

 

Melissa Murray This crowd had three choices tonight. They could have gone to Hamilton. They could’ve joined the Church of Scientology. Or they could have come here. And I’m just going to say, what was the right choice?

 

Crowd Applause.

 

Melissa Murray We are your hosts, I’m Melissa Murray.

 

Kate Shaw I’m Kate Shaw.

 

Leah Litman And I’m Leah Litman. So as you know, we have a new Strict Scrutiny summer cocktail, the Big Baller. We still can’t tell you what’s in it, because state secrets. But it has been another fucking week. And since the Supreme Court has now signed off on DOGE getting all of our information without turning over any of theirs, We’ve decided, I know boo, we’ve decided to make these bad boys doubles. So since the court is now on board with the big ball agenda, may it displease the court, let us introduce the bigger baller.

 

Melissa Murray And I just have to say, because we are shallow that way, we had a great live show in DC and we had an amazing, beautiful crowd in DC, but I have to stay, this New York City crowd is something.

 

Crowd Wooohoo. Applause

 

Melissa Murray In fact, you all look so good and you’re having so much fun that I think we might have to call in the Marines. Too soon, too soon.

 

Leah Litman The city is going to be filled with seamen. That’s S-E-A men. The Marines are part of the Department of the Navy. Get your minds out of the gutter. This isn’t the fucking Pentagon. I’ve already eaten the off of three Magnolia cupcakes, so I am raring to go.

 

Kate Shaw That is literally true and sugar is Leah’s secret sauce, so she is really just getting warmed up. But I’m gonna get us back on track because that is my job. And here is what we have in store for you tonight. We are gonna start off with the unfolding scene in Los Angeles, where as of Thursday, there are nearly 5,000 federal troops deployed in an American city. We’re gonna talk generally about some of the legal questions raised by the president’s domestic use of the military. This situation is rapidly unfolding, so it is likely that a lot of additional things will have happened before this episode airs on Monday and also possibly before we are even off this stage, but we’re gonna press on. After that, we will talk about some of the additional goings on at SCOTUS, including the opinions that we got last week.

 

Melissa Murray And we’re also going to be joined by a very special guest, friend of the pod and Supreme Court litigator extraordinaire, Chase Strangio is here in the house tonight.

 

Crowd Applause

 

Melissa Murray And after we break down this court with Chase, because it’s a live show, we are going to play a little strict scrutiny game. And you know this is a podcast that runs the gamut from the Federalist Papers to Vanderpump Rules. So that’s what this game is gonna do. So if you’re a con law nerd or a pop culture nerd, this is your moment because everyone needs to get on this pub night trivia. All right, let’s dive in. We are going to start off tonight with the Trump administration’s extraordinary and extraordinarily dangerous decision to implement its mass deportation agenda in the great state of California. And in California, as we know, they have launched massive ICE raids, ICE raids that were allegedly orchestrated by Stephen Miller.

 

Leah Litman Boo! So after the massive large-scale ICE raids began around June 4th in LA, Angelenos began protesting. Most of the protests were peaceful, although a handful were not. Some driverless cars were vandalized, there was other scattered property damage, as we should say oftentimes happens at large mass protests. And never before did anyone think that a few protesters were so scary, they required a full-scale military deployment. Until now, until the very scared administration of manly men, Donald Trump and Stephen Miller.

 

Melissa Murray They really need to take a look at Josh Hawley’s manhood? The masculine virtues that America needs. Get your minds out of the gutter. Again, this is not the

 

Kate Shaw On Saturday, June 6th, President Trump signed an executive order that generally referenced, quote, incidents of violence and disorder, but actually didn’t say anything about LA specifically, which I think means New York, Philly, Chicago, and elsewhere, we are all on notice. So that executive order relied on a federal statute, 10 USC section 12406, that allows members of the National Guard to be, quote, called into federal service, that is federalized. An executive order said they would be used to, quote, temporarily protect ICE and other US government personnel who are performing federal functions. So after the executive order, the Secretary of Defense, yep, then implemented the directive by federalizing around 4,000 members of the California National Guard and then sent in 700 Marines. So again, this is how we get to nearly 5,000 military personnel members in Los Angeles. As Leah said in our last show, Article two, fascist, two, furious. That is where we are. Or, as this fine denizen of Los Angeles said after being tear gassed.

 

Clip But you told me you got caught up in the tear gas as well. Describe what happened to you.

 

Clip Oh, just tasted a little tear gas. Tasted like fascism.

 

Melissa Murray Just for context, the last time that the President of the United States deployed the National Guard to Los Angeles was in response to the 1992 Rodney King riots. But importantly, in that case, California’s Governor Pete Wilson actually requested the presence of the National Guard. And in fact, that is typically how this works. In fact, the only times, to our knowledge, of the president has deployed the National Guard. Without first seeking the approval of a state’s governor is when President Eisenhower deployed the Arkansas National Guard alongside federal troops to integrate Central High School in Little Rock, and when President Lyndon Johnson sent troops to protect civil rights marchers in Selma, Alabama. So I think the real question that we have to ask here is how much time will it take for this administration to start claiming that what they are doing in Los Angeles is about protecting civil rights.

 

Leah Litman You are manifesting a true social post real hard right now.

 

Melissa Murray It’s inevitable

 

Leah Litman Yeah, I know.

 

Kate Shaw So both Eisenhower and LBJ relied, when they federalized the National Guard, on the Insurrection Act, this different statute, to deploy troops to protect, again, ordinary people pursuing civil rights.

 

Melissa Murray Real civil rights.

 

Kate Shaw Real civil rights, the literal opposite scenario of today. So according to California’s complaint in the case that is now challenging the administration’s actions in Los Angeles, the only time that this statute that is currently being relied upon, 12406, by itself has ever been used to justify federal military force was when Richard Nixon used it to authorize the National Guard to help with mail delivery because of a major postal strike. Again, nothing like the present.

 

Leah Litman But these guys do love Dick. Nixon. So section 12406. How many cupcakes did you have? Just three and just the frosting. Actually, I did have some pudding as well, banana pudding, so extra sugar. But the statute 1240 6 is usually the vehicle for federalizing the National in service of the Insurrection Act. Here, the Trump administration has consciously decoupled them.

 

Kate Shaw At least for the moment, right? So we should pause to explain the relevance of the Insurrection Act. So there is another key federal law, the Posse Comitatus Act, which prohibits federal military forces from engaging in ordinary law enforcement except under specific exceptions when authorized by Congress. And the Insurection Act, which is really acts is one such exception. So when it is invoked, it allows the federal military to enforce existing federal laws. It is a very big deal to unleash the federal military to enforce federal law. Which is what the Insurrection Act allows, right? Most military personnel are not trained to do this kind of civilian law enforcement. They aren’t trained to deal with civil unrest or engage in de-escalation. They are trained to defeat an enemy.

 

Leah Litman So Kate’s right, Trump has employed the military to respond to political protests. But on the other hand, there are now no more black little mermaids. And you can use homophobic slurs, and you can deny women healthcare. So who wouldn’t take that deal? Right? Yes?

 

Melissa Murray WRONG

 

Leah Litman Oh, okay, anyways, without invoking the Insurrection Act, all the military is supposed to do right now is to protect federal personnel like ICE officers as those federal officials themselves enforce federal law because the big manly men at ICE and DHS need some protection from the dancing Angelinos.

 

Melissa Murray And again for context it’s really important to note here that the last time someone tried to stop a throng of people joyfully dancing in order to advance a Christian theocratic agenda was in 1984 in Footloose. And that is obviously very different from the circumstances here, in large part because everyone in Footloose was actually hot.

 

Leah Litman Also, for some reason, the specter of a bunch of very insecure men calling up the military to feel big and strong reminds me of the scene in Arrested Development where Buster Bluth, wearing a stripper’s army costume, is holding a buncha beanie baby-like stuffed animals and says, these are my medals, mother, from the army.

 

Kate Shaw And I pulled that clip when Leah mentioned it, he’s like, he holds up a stuffed seal and says, the seal is for marksmanship and the gorilla is for sand racing. But, you know, more seriously back to what these guard members are supposed to be doing, it is obviously very difficult to police the line between enforcing the law and protecting the personnel who are enforcing law, right? And along these lines, some reporting has already suggested that some federal military officials may be helping ICE carry out arrests and detaining some people until ICE arrives to make arrests. So we may be inching much closer to the invocation of the Insurrection Act and actual law enforcement than has officially even occurred.

 

Leah Litman But those aren’t arrests, arrests. They’re just like a vibe.

 

Kate Shaw Okay, so. So it’s fine. Arrest-ish.

 

Melissa Murray Arrest adjacent.

 

Kate Shaw Right. Yeah, but I mean, that obviously does. It reveals the way that federalizing the National Guard and deploying the military is allowing Trump to push the boundaries of authority, edging closer to invoking the act, and again, having the military enforce federal law in an American city.

 

Melissa Murray We should note at this point that California is not taking this lying down. And in fact, California’s governor, yes, let’s give it up for California.

 

Crowd Applause

 

Melissa Murray California’s governor, Gavin Newsom, we call him Gavin with the good hair and the bad podcast.

 

Kate Shaw They’re bad guests. I actually don’t know. Is it a bad podcast?

 

Leah Litman Yes.

 

Kate Shaw Or just bad guests? Okay, right. Yes, it’s a bad podcast.

 

Melissa Murray I mean, I think we all know the guests make the podcast, so.

 

Kate Shaw That is true.

 

Melissa Murray So Gavin Newsom, Gavin with the good hair, has filed a lawsuit challenging the lawfulness of the administration’s actions. And specifically, California is arguing that section 12046 specifies that when the president calls members of the State National Guard into federal service, those orders, quote, shall be issued through the governors of the states. And California argues that that means that the statute contemplates. Some kind of consultation between the president of the United States and the governor of the implicated state in question. And that’s because of reading, right? And textualism. And that is something that, according to California, did not happen here.

 

Leah Litman So on Wednesday, June 11th, the Department of Justice filed its response, and predictably, they fucked it up. So the table of contents just said, table of content. There was no actual content described. This seems like a metaphor. And the table authorities, which is lawyers speak for a bibliography of laws and cases that support your argument, basically just said, Table of Authorities. They didn’t list any supporting sources, no actual authority supporting them, also quite Freudian. It was mortifying for them, which of course made it awesome for us.

 

Kate Shaw They did include some actual pages of written argument, which claimed, in essence, that section 12406’s quote, through the governor language, just means the president has to use the governor like as a pass-through, right, like a message conveyor that the statute.

 

Melissa Murray Or an ATM.

 

Kate Shaw Yeah, that works too, but essentially, right, the statute doesn’t require any substantive assent or approval, right? Like you put your request in, the National Guard comes out, no substantive role for So that’s a theory, an ATM, a rubber stamp, because federalism.

 

Leah Litman So they’re saying the statute doesn’t actually contemplate the governor’s involvement, even though it literally says, quote, shall be issued through the governors of the state, end quote. They are forgoing textualism for texting, or maybe accidentally adding Gavin with a good hair to their signal chats. Once again, Pamela Jo Bondi’s DOJ is showing us that reading is what? Not fundamental. They can’t read, so.

 

Kate Shaw So a hearing on this question was actually held on Thursday, June 12th, in the Northern District of California before District Judge Charles Breyer. That is the other Breyer, Judge Breyer is the younger brother of retired Supreme Court Justice Stephen Breyer You didn’t know that? I know I know!

 

Leah Litman So we are quite possibly expecting a ruling maybe during this live show, more likely right after because Article 3 loves to fuck with the pod. Based on reporting, it does seem like Judge Breyer may rule that the administration’s federalization of the National Guard was illegal. So at one point during the hearing, he remarked, quote, That’s the difference between a constitutional government and King George. It’s not just that the president can say something and anything goes,” end quote. It’s like he knew we were recording this episode live from a venue across the street from Hamilton. We see you, we see you Judge Breyer, yeah, yeah. So. DOJ’s argument is that the president has the constitutional authority to federalize the military, which would mean he doesn’t even need Congress’s permission to do so. They also maintain courts owe complete deference to the president’s determination to call up the guard. So Judge Breyer summarized DOJ position this way, quote, if the president says that there’s a rebellion, then there is a rebellion end quote. Even if the rebellion is more of a vibe. But Judge Breyer continued, quote, how is that different from what a monarch is?

 

Melissa Murray Which totally reminds me of, I will send a fully armed battalion to remind you of my love.

 

Kate Shaw This is Melissa’s Broadway debut and she is making the most of it.

 

Leah Litman As Jonathan Goff, as King George said, I’ll be back and you’ll be sorry.

 

Melissa Murray OK, but Judge Breyer is asking the real questions here. What is the difference between a president deploying the military troops to affect law enforcement in a domestic context and a monarch doing the same thing? That is the essential question and waiting with bated breath for his answer. And

 

Kate Shaw I think we are likely to get a ruling again, as Leah said, today. He suggested he was likely to try to get it done today, so potentially tonight. And the prospect of a ruling potentially against the administration makes all the more relevant some statements by one Secretary of Defense, Pete Hegseth, which is a phrase we still cannot believe we have to say, but we do, at a hearing in the Senate on Wednesday. So, Hegseth, who in the immortal words of Melissa Murray…

 

Melissa Murray Okay, I actually, no, no you’re not going to throw me under the bus again like you did at the Senate, like where you were like. I did not say that.

 

Kate Shaw I did not say you said it!

 

Melissa Murray He said that Brett Kavanaugh was the Dan Bongino of Pete Hegseth.

 

Kate Shaw Oh god, that’s right. That’s right, that’s true. That’s true, I’ve garbled it. That’s what I said. Okay, well, so if Kennedy asked me that question, I’m going to be sure to get it right next time.

 

Melissa Murray Get it right.

 

Kate Shaw So, but this aforementioned, Pete Hegseth, in response to a substantive question, declined to say whether the administration would obey court orders, telling the federal military to stand down. He basically just deflected. He stated, quote, What I can say is we should not have local judges determining foreign policy or national security policy for the country, right? Which was alarming on Wednesday and in light of the possibility of an actual ruling materializing is all the more alarming. So let’s maybe do a lightning round on some assorted thoughts. How bad is this?

 

Leah Litman Well, so I think this feels like the administration relitigating and reliving what they wanted to do with the BLM protesters in the summer of 2020, unleash violence and military force against the Black Lives Matter protesters. And they are also trying to normalize these emergencies, quote, emergencies that warrant assertions of extraordinary power. You know, apparently L.A. Slash California slash the entire country is in rebellion or on the precipice of one, which purportedly requires military presence. Our trade deficits are an emergency requiring unprecedented tariffs. The fentanyl situation is too. The presence of students in the United States is a grave and dangerous threat to United States foreign policy. So they have to be kidnapped out the streets because of all the reading, all the reading. And then we, the United States, are under some kind of invasion by Trendy Aragwa, which requires us to say, like, due process. But the Hegseth statement is illuminating because when he says it’s not for judges to determine national security policy for the country, they are framing everything as national security policies. So they are arguing everything they are doing is above the law and not subject to checks. And little wannabe fascist tyrants everywhere are trying to do the same thing. So the Missouri governor declared an emergency to mobilize a state guard in response to possible protests. And this is how it happened.

 

Melissa Murray I’m just gonna say, none of this is surprising. If you’re surprised, then you just tuned into this pot because we’ve been saying this for forever. In Trump 1.0, the Brennan Center’s Liza Gautian basically had a cottage industry in basically studying all of the different emergency statutes that could authorize the president to act and to do these sorts of things without any kind of legal checks. And the only thing that really surprises me right now is. How it took them this long to get to this point, right? I mean, it’s June. I expected them to do this in February. So I guess that’s restraint, like conservative values. Good, I guess. I also want to give a shout out. The California Attorney General’s comms office is doing an absolutely amazing job. So California released. Press release about its lawsuit against the Trump administration over this issue and it had a great explainer on California’s arguments explaining everything that California was putting forth at the court but then it had this CVS style receipt where the section is titled what they were saying which is like just read that in your Joan Collins voice what they was saying And they literally have clips and tweets of people like former South Dakota Governor Kristi Noem saying things like, South Dakota would never do anything to violate states’ rights. And sending in the National Guard without the assent of South Dakota’s governor, her, would violate states rights. Very, very interesting.

 

Kate Shaw But South Dakota and California are fundamentally different, Melissa. That’s what you’re failing to grasp.

 

Leah Litman Well, it’s also only Democratic presidents need to seek consent from Republican governors, but the opposite isn’t true. Yes, that’s the principle. Article 2. Yeah, article two.

 

Kate Shaw Yes, that’s right. It’s true. So as we record this episode, we’re sort of on the precipice of a pretty surreal split frame that we’re expecting on Saturday. So first we have Trump’s military parade slash birthday party. Yes. Rude Lee. That is also Melody’s birthday. Melody wants you to know. Yes. You can cheer for that. Not for Trump, but for Melody.

 

Clip Applause

 

Kate Shaw Melody wants you to know if you’re looking to celebrate either her birthday or Trump’s you can donate to the Missouri abortion fund. I’m not wishing this on Melody’s birthday, but as of Thursday, there were rumblings that thunderstorms might end up requiring the cancelation of the birthday parade, which, I mean.

 

Melissa Murray Let the heavens open.

 

Kate Shaw Like possible divine intervention. But we also have scheduled, in terms of this split frame, the No Kings protest planned all over the country on Saturday. The last big round of nationwide protests, the hands-off protests in early April, were actually pretty remarkable, including in very small towns, in very red states, and big cities like New York. And Trump has said some pretty ominous things about this convergence, so let’s roll that tape.

 

Clip We’re going to be celebrating big on Saturday. We’re gonna have a lot of — and if there’s any protestor that wants to come out, they will be met with very big force. By the way, for those people that want to protest, they’re going be met with very big force — and I haven’t even heard about a protest, but, you know, this is people that hate our country — but they will be met very heavy force.

 

Melissa Murray Very heavy force, if you missed it.

 

Leah Litman That’s just locker room talk. It’s just the way boys talk. It also reflects a very well-known exception to the First Amendment for emotionally needy, insecure men who need to throw themselves military parades. Yeah. The First Amendment also notably does not apply on June 14th, which is Flag Day, since that is the Alito’s favorite holiday, and also their least favorite amendment, at least when it’s being exercised by people who aren’t Republican.

 

Melissa Murray I’d forgotten about that.

 

Leah Litman Melissa! Virgonia! Virgo-nia on you!

 

Melissa Murray So much has happened.

 

Leah Litman Never forget the freak flags flying.

 

Melissa Murray All right, that is truly Martha Anna erasure. Okay, so just because the heavens are going to open doesn’t mean some people aren’t going to let their freak flags fly. Some Trump officials have already started celebrating the president’s birthday a little bit early. So on Thursday, Secretary of Homeland and security, Crispy Gnome, held a press conference. And she described the occupation slash invasions mission in the following terms.

 

Clip We are not going away. We are staying here to liberate this city from the socialist and the burdensome leadership that this governor and that this mayor have placed on this country and what they have tried to insert into this city.

 

Leah Litman They are liberating L.A. The same way Vladimir Putin is liberating Ukraine. She just, she just comes out and says they are subjecting a major city to military occupation for politics because they disagree with the city and governor’s politics. And unsurprisingly, California’s elected leaders, including California Senator Alex Padilla, had some questions, which he tried to ask the secretary at the presser. And this was such a grave offense. That the administration manhandled the senator and forced him out of the room. He was thrown to the ground and put in handcuffs. These goons assaulted a duly elected senator. They are lurping a military dictatorship because free speech is so free, they are trying to free themselves of having to answer for their occupation of California. Like they are tryin’ to make it a crime. To oppose dear leader and his policies.

 

Kate Shaw It is nakedly authoritarian conduct. And thus far, their defense seems basically to be that Senator Padilla was asking for it, that he hadn’t identified himself as a senator. As if first, that would make the assault okay if he was, say, a journalist asking the question. But also, there is video in which Padilla very clearly identifies himself as senator. I don’t think there’s any question that they were on notice that he is a senator And along these lines we should note they are not just detaining, handcuffing, and throwing to the ground opposition politicians. Representative LaMonica McIver was indicted on three charges related to her exercise of her constitutional oversight authority and the resulting clashes outside of an ICE detention center in Newark, New Jersey. None of this is normal. Arresting and charging opposition political leaders for speech and oversight is authoritarian conduct full stop.

 

Melissa Murray [AD]

 

Melissa Murray OK, next up, we would like to briefly cover some of the developments involving Kilmar Abrego-Garcia and the ongoing litigation about the scope and substance of the Alien Enemies Act. Now, listeners, you may recall that midway through recording our last episode, ABC News broke the story that Abrega Garcia was on a plane bound for the United States where he was going to be charged. With various offenses related to the transporting of undocumented migrants. And we were processing that in real time. And as we noted in that last episode, it was a very big deal that Abrego Garcia was returned to the United States.

 

Kate Shaw I think that our view is that Abrego Garcia’s case has been an enormous stress test for courts and for the rule of law, right? The news cycle can move really fast, and it doesn’t help that there is an ever fresh supply of executive branch conduct that is genuinely shocking and appalling. But in this case, I really think that a concerted effort to maintain public attention on his case and pressure on the administration mattered. So, recall, administration officials, including DHS Secretary Noem… Attorney General Pamela Jo Bondi insisted that he would not ever return to the United States.

 

Clip Abrego Garcia is a citizen of El Salvador and should never have been in this country and will not be coming back to this country. There is no scenario where Abrego García will be in the United States again. If he were to come back, we would immediately deport him again because he is a terrorist, he’s a human smuggler, and he is wife beater.

 

Clip He is not coming back to our country. President Bukele said he was not sending him back. That’s the end of the story. If he wanted to send him back, we would give him a plane ride back. There was no situation ever where he was going to stay in this country, none, none. He would have come back, had one extra step of paperwork and gone back again. But he’s from El Salvador, he’s in El Salvador and that’s where the president plans on keeping him.

 

Melissa Murray So shouty.

 

Leah Litman She should try smiling more.

 

Kate Shaw Despite the shouts, the unsmiling shouts he returned, right? And an important takeaway here is pressure works.

 

Melissa Murray Not just pressure from the public, although I think the fact that so many people were engaged with the story, but I have been railing about this thing we call a Congress, so I’m just gonna give credit where credit is due. I think it was really meaningful here that the Maryland Congressional delegation took themselves to El Salvador, and I think that really made a difference. And so, again, Congress, more of this. And if you don’t wanna go to El Salvador, you can just show up to Senate Judiciary Committee hearings on Trump nominees and ask them questions, and that would be good too.

 

Leah Litman Speaking of showing up, we are a Supreme Court podcast, so let’s get to that business. I’ve forgotten about them too.

 

Kate Shaw We would all like to, but regrettably, we can’t. So, okay, first, a week ago, the Supreme Court actually had its weird glitch. It issued its Monday orders list three days early, which is last Friday, blaming an apparent software malfunction that caused email notifications to go out early, which didn’t instill a ton of confidence in how things are going over there.

 

Melissa Murray Remember that time when there was a leak of an opinion back in 2022, and the chief justice says, we are conducting a technology audit.

 

Leah Litman So, you know, I think they did. They did do that audit. It was just that the audit was a reenactment of that scene from Zoolander where they’re bashing the computers. Only here it’s Brett Kavanaugh grunting like a monkey, hopping around with a computer, with Neil Gorsuch by his side. Anyways, so. We got some opinions from the court, but none of the big ones. We got six opinions on Thursday, four unanimous, two with Gorsuch descents, though some significant concurrences. I think we’ll just do two of them, though, yeah.

 

Kate Shaw Yeah, all right. So let’s start with AJT versus Aseo Area School Districts, a case about what legal standard courts should use when reviewing a challenge to a school’s failure to offer reasonable accommodations to students with disabilities, and in particular, when the challenge is brought under a statute, the Americans with Disabilities Act, or ADA, and Section 504 of another statute, The Rehab Act. This is actually an open question, because typically challenges to schools’ failures to provide reasonable accommodations proceed under another federal statute, the IDEA. Rather than the ADA or the Rehab Act.

 

Melissa Murray So the court granted cert in this case to decide whether a uniquely demanding standard should apply in the context of ADA and Rehab Act claims that involve students. So let me put this differently. The standard would require students claiming a failure to accommodate their disability to show first that the school acted with bad faith or gross misjudgment rather than just some deliberate indifference to the accommodation. So, a much higher standard for the students to make.

 

Leah Litman And listeners, you’ll recall that the way the petitioners framed the question presented really triggered counsel for the respondent, long time Supreme Court advocate Lisa Blatt, who was defending the decision below in the school district. As she stressed at oral argument, she did not think the courts or her client were advocating a standard unique to the educational context. And she maintained that anyone who suggested otherwise was a big fat liar, leading to these exchanges.

 

Clip What the school district has said, which is what Monahan said.

 

Clip You believe that Mr. Martinez and the Solicitor General are lying?

 

Clip Adora argument. Yes, absolutely. It is not true that we should

 

Clip I think you should be more careful with your words.

 

Clip Okay, well they should be more careful in character mischaracterizing a position, but yeah

 

Clip I confess I’m still troubled by your suggestion that your friends on the other side have lied.

 

Clip Okay, let’s help pull up.

 

Clip Yeah, I think we’re going to have to here, and I’d ask you to reconsider that phrase.

 

Clip An oral argument, if I might, was incorrect.

 

Clip If incorrect is fine.

 

Clip Oh, fine.

 

Clip People make mistakes. You can accuse people of being incorrect. But lying, Ms. Blatt, if I might finish. Lying is another matter. One could interpret those perhaps different ways. But surely a reasonable person could interpret them as arguing for a special rule in the educational context. Correct?

 

Clip No, only because of the tech. This flat. OK, well, you know, I mean.

 

Clip A reasonable person. All of those emphasize the unique context of primary and secondary education and the need for a special rule, don’t they?

 

Clip Fine, but what I’m…

 

Clip Fine, fine, then would you withdraw your accusation? I’ll withdraw it. Thank you. That’s it.

 

Melissa Murray Okay, why does she have me rooting for Neil Gorsuch? I just want to say, if at any point in our interactions with each other I say to you, okay, that’s fine, please understand that it is actually not fine at all. And I am going to go back to my desk and I’m going to take out my Arya Stark burn book and I am gonna write your name in it. It’s not fine, at all!

 

Kate Shaw And no one wants that. So OK, in this case, in an opinion by the chief justice, the Supreme Court unanimously rejected Blatt’s position, the idea that students had to show bad faith or gross misjudgment in bringing accommodation claims under the ADA and the Rehab Act as a position she said she wasn’t taking at the oral argument, but it was a 9-0 ruling against her client. And that’s the good news.

 

Melissa Murray But, okay, now is the time in the show where we have to have our reoccurring segment, we need to talk about Justice Thomas’s concurrence, okay? All right. Or should you- Why are people clapping for that? These are never good. This is never a good segment. So we are workshopping, you know, we have the cab currents for Justice Kavanaugh, so we’re workshopping some names for the Justice Thomas concurrences. So. There is the Clarence currents, a little wobbly. A Claire currents, possibility. The Con Clarences, possibility too. I think you all are thinking of other things. But we’re workshopping it, and our DMs are open to your suggestions, so please send those in. Anyway, back to our originally scheduled programming. Just as Thomas suggested in this concurrence, the court had not, quote, resolved what all plaintiffs. Are actually required to show under the ADA and Rehab Act. And I think we should take that as an invitation for more litigation.

 

Leah Litman Also, he just threw out that, by the way, the spending clause might be unconstitutional. No, really, he suggests there is a constitutional problem with the way courts are applying Title II of the ADA.

 

Kate Shaw And as is typical in, I think I like Con Clarence. I think that’s my pick for now. But we got some applause. I think others also like that one. Okay, okay.

 

Melissa Murray All right. Go for it. Oh, oh, oh.

 

Kate Shaw More than two, Melissa. Thank you. Okay. He would have gone further, of course, than the majority. So he explained, quote, The district contends that Title II, which targets state and local governments, cannot be read to compel states to expend state funds to accommodate people with disabilities in accordance with federal standards. Seems like maybe a pretty scary invitation to reconsider the ADA more generally. And this was especially alarming because it was not a typical solo Clarence currents, I guess I’ll try another one. I still like on Clarenced better.

 

Melissa Murray Conclearance only.

 

Kate Shaw But he was joined, so it wasn’t just him, he was joined by the court’s other great concurrer, Justice Kavanaugh, the author of many riveting calf currents is good, yes, boo his.

 

Melissa Murray Them Kav Kurrences, they could also be buzzfeed listicles.

 

Leah Litman But these two nasty boys say that the ADA might violate the spending clause because the courts are not requiring plaintiffs to show intentional discrimination, to prevail on their ADA claims. But requiring plaintiff to show intentional discrimination under Title II of the ADA would eviscerate reasonable accommodation claims.

 

Melissa Murray And Justice Sotomayor, who is joined in her concurrence by Justice Jackson, explained why the nasty boys are dead wrong about this. Hat tip to Elena Kagan. As Justice Sotomayor wrote, quote, persons with disabilities can, of course, lose access to benefits and services by reason of or because of their disabilities absent any invidious animus or purpose. Stairs may prevent a wheelchair-bound person from accessing a public place. Exactly. This is not hard. There are lots of ways in which people don’t intend to discriminate, but the practicalities is that some people will be excluded from a state of space. So why are you trying to change this, to require intentional discrimination, unless you actually want to undermine the prospect of civil rights? No, no, no.

 

Leah Litman No, no, no. No, it’s because civil rights, because they’re enforcing civil rights.

 

Melissa Murray Right, of the people building stairs. Yes, exactly. Justice for stair builders. Exactly.

 

Kate Shaw Kavanaugh could get behind that. Oh yeah. He wants to build. He is a builder, that’s right. Okay, so the other case we’re gonna talk about is Martin versus United States, a case about whether and how you can sue federal officials when, as here, an FBI SWAT team mistakenly raids your house and roughs you up and destroys your property because a GPS device took them to the wrong house on the wrong street, not even the same number as the right house on a different street. All of the particulars are a little murky because the official threw away the allegedly malfunctioning personal GPS device, as you do, but that’s basically what happened.

 

Leah Litman Yeah, so the law here is super complex. So the first thing to know is the background principle that the government is generally immune from suit. That’s called sovereign immunity, and it’s kind of sketchy, but that’s for another day. A federal law called the Federal Tort Claims Act or the FTCA waves the government’s immunity, so you can sue the government in certain circumstances, but that law also contains a lot of exceptions, meaning circumstances where the government continues to be immune. Those exceptions also have exceptions, including a proviso that removes that preserved immunity and circumstances involving law enforcement officials. Got it? It’s fine. Neither do any of the Supreme Court justices, or at least the boys, so yeah.

 

Melissa Murray Everyone in this room is prepared to decide this case right now. The particular provision that’s at issue here is the law enforcement proviso that allows the government to be sued in circumstances involving certain kinds of law enforcement officials. And the court, in an opinion authored by Justice Gorsuch, clarified that the law-enforcement proviso only overrides the government’s sovereign immunity in cases of intentional torts, which is one of the statute’s exceptions that allows the Government to retain its immunity. If you’re confused now, so are they. The law enforcement proviso, however, does not override any of the other exceptions. So there’s that.

 

Kate Shaw So to translate a little bit, the reasoning so far actually kind of restricts plaintiff’s ability to proceed in these suits against the government, but the court also held that the United States does not have a free-floating supremacy clause defense that allows the federal government to prevail whenever officers can plausibly claim they were pursuing a federal policy, and that’s something the 11th Circuit had found below. So here the court reversed the 11 circuit, but left to that court the application of this new opinion. And a Sotomayor and Jackson concurrence made clear that they definitely think these claims should be allowed to proceed. And I think they have a better chance of proceeding now, but that all remains to be seen below.

 

Melissa Murray [AD]

 

Kate Shaw All right, one of the best things about live shows is that we get to be joined by our friends and the guests make the podcast, in the words of Melissa Murray. So we get be joined our friends in real life. It is actually quite rare that even the three of us get to in the same place in real-life and it is even more rare that we get to hang out with one of our BFFs of the pod.

 

Melissa Murray New York, that’s quite a wind up from Kate, but I think you know what’s gonna happen now. We’re going to be joined by, again, a friend of the pod and a friend of civil rights more generally. Real civil rights. Real civil right. Please join us in welcoming to the stage the extraordinary Chase Strangio. If you’re unfamiliar with Chase, then you’ve been listening to Gavin Newsom’s podcast, and we know. But for those of you who are longtime listeners, I know I don’t need to say this, but I will say it anyway. Chase is the deputy director for transgender justice and a staff attorney with the American Civil Liberties Union. And he also argued on behalf of parents of trans minors in the recent case, probably the blockbuster case of the term. United States versus Skirmety. So, Chase, welcome back. We are so glad to have you.

 

Chase Strangio Thank you. I was really glad that there was a visual of how to hold a microphone back there. So that was don’t eat it. They’re doing great. Don’t eat. But now I’m almost self-conscious about it. Like, could it get too close? Like, yeah. But yeah.

 

Leah Litman We’re ready. Okay, so there is so much happening. We wanted to talk to you about some of the dynamics we’ve observed in the political and legal conversations over trans rights. And one thing we have noticed is the recent hesitation or unwillingness to defend trans rights in certain corners, which maybe is related to some efforts to blame the results of the 2024 election on trans people. I guess trace like What do you make, or is there a retrenchment and is this part of the process of social movements, progress, pushback, retrenchments, moving forward, or what are we seeing?

 

Chase Strangio Have you two been listening to Gavin Newsome’s podcast?

 

Leah Litman I don’t even hate listen to that thing, but I’ve seen clips on social media.

 

Chase Strangio Well so I like that orientation that this is part of the process that we will sort of inevitably move forward and I like to believe that that’s true I think if that is the cycle we are in the retrenchment it’s impossible to suggest otherwise and for trans people in particular it’s a catastrophic retrenchments because we are being positioned as the fall guys so to for everything in just the classic scapegoating where a group of people that represents less than 1% of the population is being blamed for societal problems and sort of endemic challenges, and all of a sudden it’s trans people’s fault.

 

Leah Litman Yeah, right, like because a trans woman competed in swimming, the price of eggs went up, right? That’s how the economy works.

 

Chase Strangio And now it’s like darts, you know, so great.

 

Melissa Murray Let’s talk about the Skrmetti case in particular. There’s been a lot of sort of, I guess, Monday morning quarterbacking on this about why the case was brought, should the case have been brought. What do you make of both critics outside of the movement and within progressive circles who are fly-specking or questioning the strategies around how rights advances are made or brought to the courts?

 

Chase Strangio Yeah, I mean, this is something that is, it’s so difficult to comprehend in a certain way because if you think about the healthcare bans for trans adolescents, these started in 2021, very recently. This is medical care that people were receiving with the consent of their parents, the recommendation of their doctors for decades in the United States. They were relying on this care. And then you go from zero states banning this care to half the country banning the care in a period of three years. And families are. In absolute catastrophic circumstances, kids are losing their healthcare. When the ACLU filed the first case in 2021, everyone thought this is a winning case. The governor of Arkansas vetoed the bill. Asa Hutchinson said, this is vast government overreach. We are- Liberal squish, noted liberal squish. I mean, Asa Huchinson loves trans people, as we all know. He too thought this was a bridge too far, and that was the context in which we brought these cases into federal court. Republican governors vetoing the laws, kids losing healthcare, overriding the decisions of parents. In the middle of the pandemic, when the states that were passing these laws were also like, oh, by the way, you can definitely try ivermectin even though we know it doesn’t work. And so that was- And bleach. And bleach, yeah. Yeah, and we have to be able to not send our kids to school in masks because of parental rights. And so there was this robust discourse of parental right, these were states that the Republican governors even thought they were going too far, and there was such a catastrophic harm. And so everyone was in support of bringing these cases into federal court. And when you bring a series of civil rights cases into federal courts, and a circuit split emerges- You cannot control whether the Supreme Court is going to hear a case concerning your civil rights. And I think this is really important. The other thing is there’s all sorts of people saying, well, you should have gone to state court, which first of all, yes, maybe we could have gone to state Court in Alabama and it would have been incredibly unsuccessful. And also, State Supreme Court decisions are also reviewed by the Supreme Court. And so you cannot say, in essence what people are saying is trans people should have waited and died and then you can in a few generations, if there’s any of you left, vindicate your civil rights.

 

Leah Litman And I guess part of the context for bringing these cases at that time is also, this is also happening in the wake of daubs. When state referenda that are protecting individuals access to healthcare and individual civil rights are succeeding. So it’s within the context of that movement as well.

 

Kate Shaw And so it’s amazing that we’re only talking about four years ago, and the dynamics have so radically changed. So maybe I’ll ask a two-part question. One is, how are you thinking right now about kind of courts in this moment, not just the litigation, much of which has been ongoing for some time, but new challenges if they need to be brought? And again, we don’t want to ask you too much about a case that is currently pending. But if you want to talk with any more specificity about Scrometti itself and the dynamic around bringing that case when you did, We would love to hear those.

 

Chase Strangio Yeah, I mean, how do I think of courts? In some sense, I think, of course, the way that I’ve always thought of courts, which is this is a limited harm reduction tool that we have to keep utilizing because we can get temporary relief in contexts where the harms are so great that even the temporary relief is transformative. And so to me, it’s always a harm reduction. We’re not getting liberation through the courts. And there’s lots of reasons to be concerned, but we are bringing cases in state and federal court every single day at the ACLU, and we will continue to do so. So that’s, I would say, point one. And then, you know, with Skrimeti, I guess I would just say two things. And again, coming back to the harm, I have been working on trans litigation for 15 years. I’ve been working on behalf of LGBTQ people for over 20 years. And I’ve never felt so devastated and despairing as I did between 2021 and 2023, watching people lose access to their lifeline. And you know, it just felt like we were gonna fight as much as we had to fight. And the Sixth Circuit decision that we sought cert from was so terrible and so intellectually dishonest and so harmful, not just for the Six Circuit but for the three other circuits that followed it and you know for the people whose lives were impacted by it. And so you know we fight to get a less bad or a good decision, you know you never know. And so I think that’s what it feels like with respect to scrimmety, but I’m thinking it’s June, in 1986, the Supreme Court upheld criminal bans on sodomy for same-sex couples. And that was seen as, obviously, a catastrophic for LGBT movement work for gay people generally. And it’s not like the movement was like, oh, well, we lost, we’re gonna give up. Whatever happens, we not gonna give us. We’re gonna keep fighting. And they overturned Bauer 17 years later in Lawrence. So yeah.

 

Leah Litman So I wanted to say something else about the decision that the Supreme Court is reviewing in Skirmetti because when you talk about how catastrophic it was and bankrupt it was, one of the remarkable things about that opinion is the court in explaining why laws that targeted trans people don’t trigger heightened scrutiny focused on this weird idea that actually trans people are not minorities in need of judicial protection, but the real people who were subject to attack were somehow political officials who were attacking trans kids because the court noted, look, look at all the briefs in this case. Who are non-profit organizations and medical organizations supporting. The trans kids, not the state, as if that somehow proved that trans people didn’t need the protection of the state because reasons and when the reality is, those briefs just underscored that there is no case for these healthcare bans, right? That’s why the medical organizations are supporting the plaintiffs. Yeah, I mean, I will say, I remember that- the opinion.

 

Chase Strangio For you, Chief, just FYI. Yeah, I mean, it’s done. Right. In the appeal of the first preliminary injunction in the Arkansas case, the attorney general’s office got up before the East Circuit. And the first point they argued was that trans people have a huge amount of political power. The other side is really obsessed with zeroing in on it. Couldn’t you have?

 

Leah Litman Couldn’t you have done something about the 2024 election then? Yeah, no.

 

Melissa Murray I thought Justice Sotomayor addressed this very effectively in oral arguments, noting that this is not a situation where this group, which is about one percent of the population, is going to be able to harness the political process to affect the kinds of returns that they want. I also note, this whole question of who exercises political power is not an idle question. This goes to the very heart of what it means to be classified as a minority for purposes of equal protection. If you look at the Dobbs opinion, Justice Alito talks about how women are not lacking electoral and political power. That’s not, you know, get yourself to the ballot box, ladies, it’s get yourself the ballot so we can later talk about how you don’t need to be considered minorities for purposes of the Equal Protection Clause. So again, doomsday Cassandra here raving harpy, but it’s gonna happen. Correct? Correct.

 

Chase Strangio I mean I do think that this you know series of exchanges at the at oral argument in scrimmety sort of foreshadow all of the ways in which in you know Supreme Court precedent is under attack more more broadly and there’s obviously this idea of well let’s get rid of heightened scrutiny all together no this is the demise of protection as we know it. Yeah, and then this idea, too, that we can just, on the front end, say, you know what, biological differences, then we don’t need to worry about it. But as if the invocation of biological differences wasn’t the very thing used to subjugate women forever. And they’re like, well, no, biology, QED, we win. So can I say about another? You have boobs, you can’t have a job. Right, yeah.

 

Melissa Murray Certainly not as a bartender, right? Can I ask a different question? And again, we need to talk about Justice Thomas’s concurrence. This one was in Dobbs, where Justice Thomas was like, while we’re getting rid of abortion, there’s a bunch of other decisions that I would like to reconsider, including Obergefell versus Hodges, the 2015 decision that legalized same-sex marriage. Last week, delegates at the national meeting for Southern Baptist, which is the largest Protestant denomination in the country. Endorsed a ban on same-sex marriage, including a call to ask the Supreme Court to overturn Obergefell. How does that development fit into the broader effort to shore up civil rights at a time when it seems the entire civil rights settlement is under threat from this administration and those who support it?

 

Chase Strangio Yeah, I mean, this was an obvious development. And just shout out, it’s the 10-year anniversary of Obergefell and 22. Let’s talk about the good thing. And, but I think too, we just, it should be a wake-up call to us that we have to stop being complacent. Because this was always the play. They never gave up the game on marriage equality. It was very clear. And actually, What’s so frustrating about all of the calls from, I don’t know, our so-called friends about why did you pick this fight about trans people in bathrooms? Guess how that fight started. It started the day after Obergefell was decided as an effort to say, we’re not giving up on marriage equality, we’re gonna undermine your equality efforts, and every single time you introduce a non-discrimination measure, we’re going to talk about transpeople in bathrooms. And all of that work is being done to erode all of these equality norms for everyone, but also for cisgender gay people. And so this effort to divide us, this effort act like if you just drop trans people, don’t worry, your marriages will be safe, is patently absurd, and people should know that, and we can’t be complacent, and we have to mobilize together.

 

Kate Shaw I actually wanted to ask about another case that we discussed last week. This literally straight rights case, Ames, in which our take was that actually the court made it easier for straight plaintiffs to allege sexual orientation discrimination. But we thought there was a silver lining in the case and we’re curious to get your take on it. And that silver lining was that the case does cite Bostock, right? Which holds that discrimination on the basis of sexual orientation or gender identity is sex discrimination under Title VII. And Sam Alito joined that opinion, and he did not spontaneously combust. And that, at least, is something we thought of a positive sign. Did you read it the same way?

 

Chase Strangio I definitely did and I think I was really expecting at least a concurrence being like I am going to at least continue to lodge my hatred of BossDoc and it relies very heavily on some of the fun, the sort of critical parts of Boss Doc that we continue to rely on in our litigation including in Skrimeti which obviously isn’t a statutory case but this idea about the protection flowing to the individual is That was central to how Bostock was litigated. And so having nine members of the court agree with that and cite to Bostok repeatedly, it makes it a lot harder to then overturn Bostocks.

 

Kate Shaw Up wondering, like, did they just forget to append the, like Alito nasty gram that was going to end if they did they just, they just called malfunction. But it really matters that he just held his fire for whatever reason. And now that is a unanimous statement from the court.

 

Chase Strangio Yeah, and you know why.

 

Kate Shaw Do you know why he held his fire?

 

Chase Strangio I was like, well, I hope it’s not something to do with a bargain in Scrametti, but I guess we’ll see.

 

Leah Litman Well, on that bright note, Chase, thank you so much for joining us. We really appreciate it.

 

Melissa Murray [AD]

 

Kate Shaw All right, I’ve prepared myself mentally. We’re moving on to the game segment. And we really do love doing live shows and it is great to be in person with all of you. And so as an expression of our appreciation and love and also to lighten up this dark timeline somewhat, we thought we would have a little fun with some games.

 

Melissa Murray Okay, you totally made that sound like we’re having a key party, okay? That was, like, very-

 

Kate Shaw Don’t get excited. We’re not.

 

Leah Litman Like, uh, so we might have to interrupt the game. Oh no. Judge Breyer decided he wanted to participate in said podcast. Okay.

 

Kate Shaw We have a cameo from Judge Breyer.

 

Leah Litman We have a cameo from Judge Breyer who has ruled that President Trump’s use of the National Guard in L.A. Was indeed unlawful. Kate, Judge Breyer knows how scared you are of pop culture. And he came.

 

Kate Shaw This timing was for me only.

 

Leah Litman To your rescue.

 

Melissa Murray I don’t mean to be the fly in the punch bowl, but this is clearly going up on appeal. And I think Donald Trump right now is thinking, you’ll be back like before. It’s my moment. It’s not just going to be Ketanji Brown Jackson on Broadway, normalized black women on Broadway.

 

Crowd Applause.

 

Leah Litman So, as the audience for a live show, you get to see us try to process something in real time. I brought my phone up here just in case this happened. Okay, so Kate, do you want to opine on some pop culture while I quickly skim this so I can say something?

 

Kate Shaw Should we proceed with the game, or so you’re actually gonna read? How long is the opinion?

 

Leah Litman It’s 36 pages.

 

Kate Shaw Yeah, this is literally how we do it. All right. She is a speed, an actual factual speed reader.

 

Leah Litman I’m already on page 9.

 

Kate Shaw And she’s been talking the whole time. This is literally, how Leah Litman rolls.

 

Leah Litman Yeah, so if you guys could amuse the audience for like a few minutes, I’ll be back.

 

Melissa Murray Is this my moment?

 

Kate Shaw I think it is.

 

Melissa Murray Let’s talk about the game.

 

Kate Shaw Alright, we’ll set the game up, this is going to be a little surreal. We’re going to set up a game about epic breakups. It’s a breakups game.

 

Melissa Murray So here’s the setup. We are going into summer. And usually, this is the time for a summer romance, a summer fling, something fun, flirty. It’s not intended to last until September, like Danny and Sandy in Greece. Summer lovin’, if you will. But sometimes, a summer romantic ends a little early. And this summer, we have been plagued with some epic. Breakups that I think we really need to talk about on the pod. The girls have been fighting, right? The game is called Breakup Bracket, OK? All right. Here’s how the game works. We’re going to give you some content about some pretty iconic breakups. But we’re not just going to tell you about them. We’re gonna pit these breakups against each other. For the title of most iconic breakup. So we’re gonna have two separate breakups and we are each going to make the case for why that breakup should be considered the most iconic. And then of course we will involve you as the trier of fact, if you will. And you will help us determine which breakup was the most epic. And we’re just gonna go through a bunch of truly iconic breakups until we get to.

 

Kate Shaw Until Leah finished the opinion.

 

Melissa Murray Until Leah finishes the opinion.

 

Kate Shaw And then we’ll talk about Breyer.

 

Melissa Murray When we break up with democracy.

 

Kate Shaw That’s right. No he says we’re not

 

Melissa Murray Or break up fascism for a minute. Okay. This is going to the court, so I’m just anticipating. Okay.

 

Kate Shaw First bracket. Melissa is going to argue the Donald Trump Leonard Leo breakup, and I will argue the Brett Kavanaugh and John Roberts.

 

Melissa Murray OK, let us begin. Many of you are already briefed on the particulars of the Trump-Leo breakup. But to summarize, a few weeks ago, after a three-judge panel of the Court of International Claims, which included a Trump-appointed judge, ruled against the president on his tariffs, the president, as is his want, took to Truth Social to call Leonard Leo, quote, A sleazebag! And a bad person who, in his own way, probably hates America. Leo is, of course, the mastermind behind the Federalist Society’s meteoric rise, and he was instrumental in stocking the federal judiciary with conservative judges during the first Trump administration. Here is my case. Yes. I mean, I could just stop now, but I will say. This is obviously the more iconic breakup in this bracket because the GOP really only loves three things, right? They love tax cuts, they love judges, they love a pre-1954 America, and this breakup basically cuts out two of those things. I’m gonna let you guess which one sticks around. So this Leo Trump bromance has given us Neil, Brett, Amy on the Supreme Court. Pretty sizable. It has also given us Jim, Andy, Kyle, Lawrence, and Justin. And no, that is not a struggling 2000s boy band, like 98 Degrees. I know, you will not stand for this Nick Lachey erasure. These are the names of Trump-appointed circuit judges, and these are the same judges who basically stay auditioning for the post of America’s next top justice. So the fact that Donald Trump and Leonard Leo are no longer together, I think is pretty epic. Do you agree?

 

Kate Shaw I feel like this is, that’s always a hard act to follow. I will say, just look at Brett’s face in that picture. That is not spliced together. That is an actual picture of the two of them Melody found. That’s powerful evidence of what they had once, but no longer seem to have. So basically John Roberts and Brett Kavanaugh were once like John Roberts and John Roberts number one fan boy. That is who Brett Kavanagh was on the DC circuit. There was a profile that McKay Coppins wrote of Kavanaugh that recounted that in Kavanaagh’s DC circuit chambers there was a blown-up photograph of Kavanagh with the chief on the wall. Friends reported that Brett idolizes John Roberts. Quote, this is what an actual source told the reporter, if you’re looking for soulmate types, that’s them. So going from number one fan to semi-hater is, I think, a pretty big thing. It has definitely created a more precarious situation. At the court when it comes to restraining the Trump administration, because Brett is not in play in a lot of really important executive power cases, and so it comes down to the Democratic appointees and potentially John, and then maybe Amy, and did the chief ghost Kavanaugh for Barrett, or has Coach Kavanaug fallen prey to the wiles of Sam and Clarence? But either way, the consequences for democracy are quite significant, so.

 

Melissa Murray Where is the evidence other than he’s not with the chief justice all of the time that they’ve actually broken up? We haven’t even gotten the big cases from this term.

 

Kate Shaw That’s true. I’d be So I’m happy to revisit this debate after, you know, July 1st.

 

Melissa Murray But have you met your burden?

 

Kate Shaw Leah can decide.

 

Leah Litman Okay, here’s the thing. I’m gonna conclude this as a tie. It’s a draw because both of these, quote, breakups are like the Spider-Man meme, where one Spider-man is pointing at the other Spider-men, and they’re the same person. So I’m not convinced. It’s draw, sorry. We’ll take a draw. Congratulations, you’re both winners. Thank you. Okay, speaking of winning, a quick recap of the opinion slash order. Judge Breyer just gave us. And I apologize if this is a little rough. I was literally taking screenshots of different opinions, parts of the opinion on my phone that I wanted to be sure I touched on. So first, Judge Breier rejects the government’s argument that the court cannot review the grounds for the president’s federalization of the National Guard. So he says, yes, of course courts owe the president. Deference, they can’t review the president’s factual determinations, but at least in the context of domestic matters, courts get to decide whether the president correctly applied this statute. So the president invoked two grounds for federalizing the National Guard. One is that the country was, as we jokingly said, in rebellion. That was the dancing. Yeah, that was the dance part. The second is that the federal government wasn’t able to execute federal law without the involvement of the National Guard. So on the rebellion front, Judge Breyer is basically like, get real, guys. This isn’t a rebellion. This is called First Amendment activity and protest. Exactly, exactly. And- Shorter, Charles Breyer. Everybody cut, everybody cut. Charles Breyer also invokes some interesting sources to support the idea that rebellion really is not synonymous with political protests, so he cites Wuthering Heights. Oh yeah, examples of this usage include spiritual rebellion. The event of this evening has reconciled me to God and humanity. I had risen in angry rebellion against Providence. Quoting Bronte, Wuthering Heights. Okay, he’s literally stunting on that. I know. He’s like, I read, I can read. Unlike you, buffoons. So he also goes through different examples about how, of course, there is some violence here, but violence might be necessary for a rebellion, but isn’t sufficient. And he goes through, again, different examples of how there has been some violence in political protests throughout American history. He also notes that protest against the federal government is a core civil liberty protected by the First Amendment and so that cannot justify finding a rebellion. Yes. Okay. So then he also concludes that the president did not actually sufficiently determine that it wasn’t possible to execute federal law. In the absence of federalizing the National Guard, so he says while ICE was not able to detain as many people as defendants, read Stephen Miller, believe it could have, ICE was nonetheless able to execute the federal immigration laws. Then on this point about whether the order has to go through the governor, Judge Breyer agrees with the state that of course these orders have to go through the Governor as the statute says. Reading, according to Judge Breyer, is fundamental, right? So very, very good there. He notes that, of course, the order the president said wrote at the top of it, through the governor, that he says is not sufficient to actually satisfy the statute. But also he notes that, you know, again, it just doesn’t matter, that they, again told the governor allegedly instead it requires more meaningful consent. Finally, Judge Breyer adds that they are in violation of the 10th Amendment because they are usurping the state’s police power. Federalism! Federalism!! Federalism, it’s a thing. He’s totally stunting on them. He is. States rights, you bitches. So it’s not just for integration anymore. It is not. I also wanted to note some real troll energy in this opinion, which I have to say respect to. So toward the closing of the opinion, Judge Breyer suggests that the federal government is harming California because they are depriving the state for two months of its own use of National Guard members to, among other things, combat the fentanyl trade. Oh, dang, Gina. Oh, yeah. Oh, yes. Judge Breyer has also been reading the news because he ordered the plaintiffs to post a nominal bond of $100. This is important because there’s currently a proposal in Congress that would limit court’s authority to hold officers in contempt of violating court orders that don’t have a bond accompanying them. So, Judge Breyer is dotting his I’s, crossing his T’s. And ensure he can haul these goons off to jail if need be.

 

Crowd Applause.

 

Melissa Murray No, wait, wait. You know what would have been absolutely iconic? What? If he’d made the bond $1, like Taylor Swift, and nominal damages. That would have be iconic.

 

Leah Litman Iconic, I’m still going to classify this opinion as iconic. No, but the opinion, I mean, it could have been even more iconic. I mean some notes. I mean the guy did turn it around in a few hours. I mean…

 

Kate Shaw I don’t want to put you in the spot, but does he do anything to stay the order at the end? Like, what is it, what do we know about?

 

Leah Litman It is ordered, so appearing on this order to show cause will be held on June 20th. The court stays this order until noon on June 13th.

 

Kate Shaw Okay, so we have for tomorrow.

 

Leah Litman 24 hours, okay

 

Kate Shaw Okay, 24-hour stay, so they go to the 9th right now. We should come back tomorrow and do this again.

 

Melissa Murray Ha ha ha ha! Don’t worry. We have more games. Don’t worry. We actually do. We had to cut some. We actually have more game. We actually do, we had to cut some. We actually have more games.

 

Kate Shaw But we’re busy tomorrow. But, but, but wow. That is both a great result and I just love that all of you got to see Leah Lippman do this in real time. Real time! That is iconic. The opinion is iconic and that display was iconic.

 

Leah Litman These guys can’t fucking read. I will read an opinion on a stage live that is 36 pages. You did it. And yet, like.

 

Melissa Murray I mean, they are the Lea Michele of administrations. Too soon, too soon? Just a little. She clarified that. She said she can read. Yeah, yeah, yeah. It’s just a meme at this point. Okay, can we go back to the game?

 

Leah Litman Yes, please. Can I play some of the game?

 

Kate Shaw I think it’d be hard to go back to the game if it were a different outcome in this opinion, but I think that, like, I feel buoyed, and I’m ready to do it. Let’s finish it, yeah?

 

Melissa Murray All right, back to the breakup bracket. Bracket number two, Donald Trump and Elon.

 

Kate Shaw All right, I’m going to give a very quick and straightforward case for Trump Musk. I mean, you know, you go from best buddy slash co-president to tweeting and then deleting allegations. The president is in the Epstein files and then the president threatens to criminally prosecute you if you support the other party. I mean that’s a big delta, right? Between the relationship as it was and the relationship as it as it is or was like a couple of days ago, right. Things got a little complicated in the last couple of days, but this is a very big deal break up. I’m not even sure I want to use that word, but it’s a big deal breakup. That’s my succinct case for this as the winner.

 

Melissa Murray OK, hear me out. Let me tell you the ballad of John and Sam. So these two were not just casual acquaintances. They actually came to the Supreme Court as brothers in 2005. Both were nominated by George W. Bush within months of each other. And obviously, one was the chief. The other was a spare, if you will. Ah. But they were pretty much in step for most of their early careers on the court. I mean, look at them. They’re even dressed alike, right? Like, you wear the red tie, no, you wear the Red Tie, like why don’t we both wear the Red Tie and they’re doing it. So what makes this a new era in their bromance is that now the spare is publicly shit talking. And he’s possibly doing it on background to the press. And honestly, I’m just going to say it’s giving Prince Harry and Prince William, but without the very hot American wife.

 

Leah Litman That checks out. So I’m going to play judge, since I just read and processed a judge’s order. So now that Elon is walking back this breakup, real we break up, we make up energy, or as Taylor Swift foretold, I say I hate you, we break, up you call me, I love you. But when Elon tweets, I regret some of my posts about President Trump last week, they went too far. This one definitely goes to John Roberts and Sam Alito because Sam Alita knows how to hold a fucking grudge. Like, they are never, ever getting back together. Like, ever.

 

Melissa Murray Big Virgo energy.

 

Crowd Applause

 

Melissa Murray All right, next category, round three. This is friends to frenemies. And we’re going to let Kate judge this one for reasons. This bracket pitch. NeNe Leakes and Kim Zolziak, bravo Andy, is merely a bystander in all of this, against Taylor Swift and Blake Lively. OK, so let me explain, for those of you who are unfamiliar with the Housewives universe, the NeNe Kim fallout. This happened at an Atlanta reunion, and the breakup was so completely epic. I mean, this is the breakup. That gave us NeNe Leakes’ most iconic line ever, close your legs to married men. Is that the most iconic line from Atlanta? I don’t know, I think who gon’ check me boo might be more iconic.

 

Leah Litman That’s fair. But that just gives me a leg up to argue that the break up between Taylor and Blake is the more iconic one. And there’s a legal hook to this one as well, which is that Taylor-.

 

Melissa Murray There was adultery in the other one.

 

Leah Litman Well, okay. But this is Taylor Swift, who was irritated that she got swept up into Blake’s legal fight with Justin Baldoni during which Taylor was subpoenaed. And maybe, maybe to get back in Taylor’s Good Graces. There’s reports that Blake might subpoena Scooter Braun.

 

Kate Shaw I get to judge this one. I would normally go with Taylor and Blake because I’ve heard of everyone involved. But I’m hoping they get back together. I am not convinced it is a real breakup. So I shall go with Nae Nae and Kim. Even though I literally just learned and apparently didn’t even retain who those people are. That’s my ruling. Okay, let’s move on to another category. I’m actually blushing hard. All right, we’re going to call this one, Toxic Men and the Women Who Try to Love Them. OK, well, I mean, not like that. She didn’t try to love him like that, but that is Sandra Day O’Connor and Justice Scalia. O’connor was notably cooler towards Scalia relative to her other colleagues as their time on the bench went on. She famously tried to get all the justices to get along. Scalia. Really antagonistic toward her. Early on, he described one of her opinions as irrational and not to be taken seriously. Shockingly, did not, you know, endear him to his new colleague.

 

Melissa Murray Obviously, this is Ben Affleck and all of the Jennifers in the world. So Ben Affleck has just gone from Jennifer to Jennifer and progressively flamed out in a more fantastic way with each of them. Jennifer Lopez for the second time, and I truly was rooting for them. I really, really was. So I think at this point, this is an epic breakup. And not only is it epic, I think it must lead Ben Afflek to the self-realization that, in fact, No, Jennifer is truly the love of his life. And in fact, the real loves of his life are Boston, Dunkin’ Donuts, and Matt.

 

Leah Litman Melissa, I know when I’ve lost an argument, I’m just gonna concede here. Ben and Jen’s are the more iconic breakup. You win. I’ve been winning all of these. Maybe I should’ve been a litigator. No? Let’s make you judge for the next bracket, okay? So we can make it a fair fight.

 

Melissa Murray All right, so this bracket, round five, Pitts Chief Justice Warren Berger and former Associate Justice Harry Blackmon against Taylor Swift and Carly Klaas. Kate, you will argue for Taylor and Carli. No, no, just kidding. Leah.

 

Leah Litman Thank you. I felt a little disrespected.

 

Melissa Murray Kate, why don’t you explain the Blackman Burger beef?

 

Kate Shaw Way more comfortable on this terrain, all right. So we are talking about the once deep friendship between Warren Berger and Harry Blackmun. It started in a St. Paul, Minnesota kindergarten classroom, continued through decades of very intense correspondence, saw Blackmun as best man in Berger’s wedding. They were simultaneously on two different courts of appeals and then had this epic reunion at the Supreme Court. But that reunion proved fatal for the Minnesota twins. They grew further and further apart during their time on the court. This was in part because of Blackman’s steady shift to the left, but also in part because of Berger’s sort of imperious style as Chief Justice. And by the end of their time in the court, these ones like genuine great friends were virtual strangers, if not outright enemies.

 

Leah Litman I know, it sounds intriguing, but here’s the thing. The Taylor breakup gave us Down Bad, where Taylor sings about how I lost my twin. It also gave us It’s Time to Go, where the words of a sister come back and whispers. Also, I’m glad we reserved this venue for 24 hours because I’m gonna be here all night making my case. But, okay, so at the final night in the Los Angeles concert, where Carly showed up unexpectedly. I was literally standing between them in Taylor’s line of sight to Karlie Kloss, and I can just tell you this breakup wins. And in closing, and if you know, you know and you’ll know I’ve won this one, I’ll just say it hits different with you. And with that, I rest my case.

 

Crowd Applause

 

Leah Litman I won.

 

Kate Shaw Melissa, do you want to make a ruling?

 

Melissa Murray That’s like such Pamela Jo Bondi energy for you. I won!

 

Leah Litman That’s way harsh, Ty.

 

Melissa Murray This is a really tough one. I really loved your whole exposition, Kate. I like that you humanized it, brought it back to kindergarten, but. Those letters are intense. Yeah, but she had quotes, so I’m gonna give it to Leah. Thank you, thank you. All right, final bracket, round six. This one pits Donald Trump and pre-J.D. Vance Mike Pence against Tom Sandoval and Ariana Maddox. Kate, I will let you argue on behalf of Trump Pence.

 

Kate Shaw Clearly that’s the one I’m doing. Okay, again, a fairly straightforward case. There was a literal riot where people were calling to hang Mike Pence. President Trump threw his VP under the bus, placed him in mortal danger by encouraging a riot in which people were falling for Pence to be hanged. High stakes for the relationship, high stakes for democracy. Seems like a bigger deal break up than the other one.

 

Leah Litman It sounds like a big deal, but Donald Trump told me that was a day of love. And there was no love in that post-filming episode of Vanderpump Rules. Because when Tom asked Ariana if she needed anything, her response was, for you to die. It generated the iconic, I regret ever loving you, and I don’t care about fucking Raquel. Plus she’s now the host of Love Island, which despite everything you may have heard is not a show about vacationing January 6th rioters. And unlike Trump and Pence, this breakup has its own name. Skandoval, what’s the phrase for the failed Trump and Pence relationship? There isn’t one. I believe it’s insurrection. I didn’t mean to.

 

Melissa Murray I’m going to give this one to Kate. All right, we got to land this plane, this Qatari jet, this emolument, if you will. So we are going to end the show by doing what we always do. It’s recounting our favorite things from the weeks, the best things that we’ve read, seen, watched, whatever. So Kate, kick it off.

 

Kate Shaw All right, and we’re going to be very quick. So first, Melody has another podcast in addition to our podcast, the Culture Study podcast with Anne Helen Peterson. And they had a great interview last week with Sophie Gilbert, author of Girl on Girl, a really excellent book we’ve all recommended. So check that episode out. And the only the other thing I’ll recommend is Steve Vladeck, friend of the pod has his latest installment of One First Street is about federalizing the California National Guard. He is just. An incredible resource on all of the deep sort of dimensions of the legal questions we were discussing here. So read that and also follow him as this continues to unfold. And then finally, this isn’t a thing I read or watched or anything, but I wanna call out Argent, the designer whose clothing we are all wearing tonight. We are very colorful and their wonderful clothing is the reason why.

 

Leah Litman Ambition suits us. I guess so. So my favorite things are Michelle Goldberg’s piece in the New York Times, this is what autocracy looks like. And yeah, that was phenomenal if you haven’t read it. Also, I was also gonna say our Argent fits. Thank you, Argent, for making women’s work wear fun.

 

Melissa Murray OK, I would like to recommend Elie Mystal’s latest column in the nation, What the Hell is Posse Comitatus? Anyway, it’s a great primer on the Reconstruction Era roots of the Posse-Comitatus Act, as well as a very bracing distillation of everything that could go wrong with what is happening in L. A. And elsewhere. I’ll also recommend Amazon Prime’s adaptation of Alaphair Burke’s fantastic book, The Better Sister, with Elizabeth Banks and Jessica Biel. I also want to shout out my mom friend, Sarah Sklarandis, who provided the amazing shoes that Kate is wearing. Yeah.

 

Crowd Applause

 

Melissa Murray Kate was like, what do you think? And I’m like, I have the perfect shoe for you. And she’s like, What does it look like? I mean, it’s a leopard print, but blue. And Kate looked scared.

 

Kate Shaw I did, but I did. But I generally do what Melissa tells me and it generally works out well.

 

Melissa Murray And I think it worked out well here. We are super grateful to Argent and Sally Christensen and Sarah for helping get us dressed. Again, women’s work wear does not have to be terrible. It can be fun. Someone please tell the folks in the Trump administration.

 

Leah Litman So to wrap up, we have some final thank yous. Thank you to our tour manager, Sophie Eisenstadt.

 

Melissa Murray Woohoo!

 

Leah Litman Thank you to our producer, Melody Rowell.

 

Crowd Woooo.

 

Leah Litman Thank you to our intern, Jordan Thomas.

 

Crowd Applause.

 

And thank you to the amazing Detox for opening the show when I say it was the fucking best to be able to appear on a stage after Detox, I mean, hashtag goals.

 

Melissa Murray Thank you, New York!

 

Kate Shaw Thank you so much, New york!

 

Leah Litman Hi, it’s Leah, and here’s your post-live show update on the military occupation of Los Angeles and the legal challenges to it. On Friday, the US Court of Appeals for the Ninth Circuit issued an administrative stay of Judge Breyer’s decision. An administrative stay puts the decision that is Judge Breier’s decision on hold until the Court of appeals decides whether to grant a more long lasting stay. Judge Breyer’s decision had invalidated Trump federalizing the California National Guard, and the Ninth Circuit scheduled very quick briefing and argument to decide whether to grant a more long-lasting stay. The argument is scheduled for the 17th Tuesday, so the order isn’t going to go into effect before then. Judge Breier’s decision did not address the lawfulness of Trump deploying the Marines. In order to federalize the California national guard, the Trump administration relied on Statute 12406 that addresses the National Guard. So the administration had to rely on another source of authority to deploy the Marines. And Breyer’s order only addressed the lawfulness of calling up the California National Guard under 12406. Breyer determined that it was unnecessary and too soon to determine whether the California national guardsmen were violating the Posse Comitatus Act by engaging in ordinary law enforcement. Events seemed to have superseded poor Judge Breyer, just like his order kind of threw a wrench into our live show. Specifically, there have now been reports of Marines detaining American citizens, which at the time Judge Breyer issued his order had not yet clearly materialized. That matters because it tees up the question of not only whether the President had the authority to call up the Marines under these circumstances, but also whether the actions that the Marines are taking constitute the kind of ordinary law enforcement that the Posse Comitatus Act prohibits the military from engaging in. Oh, and who was the citizen who was detained by the Marines? Black veteran. And again, this looks pretty illegal under the Posse Comitatus Act because detaining someone who purportedly crosses a taped boundary, that’s kind of ordinary law enforcement. That’s not protecting federal personnel or property. And that’s all the updates we have for now. We had a wonderful time in New York City. If you were one of the people who stuck around after the show for the meet-and-greet and took a picture, we would love to be able to see those pictures, so please feel free to send them to us. Thanks, everyone.

 

Kate Shaw [AD]

 

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.

 

[AD]