Flags, Feuds, and Roberts' Rebuff | Crooked Media
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June 03, 2024
Strict Scrutiny
Flags, Feuds, and Roberts' Rebuff

In This Episode

Melissa and Kate recap the Supreme Court’s latest opinions and catch up on the latest drama from the Alitos’ flag-flying fiasco.

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


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


Kate Shaw And I’m Kate Shaw. Of course, the biggest legal news right now is that former President Donald Trump has been convicted on all 34 felony charges in the hush money election interference case in New York City. That news dropped after we finished recording this episode. But never fear, Melissa went on Pod Save America to break it all down with the guys, and we dropped that episode in our feed too. So if you haven’t listened to it yet because it’s not our usual Monday morning drop, definitely check it out. But for today’s episode, here’s what we have in store for you. We will start with the opinions the court issued last week. We will then cover some court culture, including an update from the court’s most stalwart feminist. Get excited! And finally, we will do a little bit of podcast doomscrolling to remind you of the many terrifying and hugely consequential decisions still outstanding in the month of June. But first, opinions.


Melissa Murray First up on the opinion front is Cantero versus Bank of America. The question presented in that case was whether the National Bank act preempts the application of state escrow interest laws to national banks, which involved a nuanced federal preemption question. Specifically, the question here is whether state laws requiring the payment of interest on national bank escrow accounts were preempted by federal banking laws like Dodd-Frank. In this case, the petitioners had obtained home mortgage loans from Bank of America, a national bank chartered under the National Bank act. The loan contracts required the borrowers to make monthly deposits into escrow accounts, but Bank of America didn’t pay interest on the balances held in escrow. Instead, they informed the borrowers that the New York interest on escrow law was preempted by the National Bank act. The borrowers then brought a class action suit in federal district court, and the federal district court concluded that nothing in the National Bank act or any other federal law preempted the New York law requiring the payment of interest on escrow accounts. The Second Circuit, however, reversed, holding that because the New York law would, quote, exert control over and, quote, National Bank’s power to create and fund escrow accounts, the law was preempted while the Supreme Court, in a unanimous opinion authored by Justice Kavanaugh, who contains multitudes, concluded that the Second Circuit did not conduct the kind of nuanced comparative analysis required by the Dodd-Frank Act and Barnett Bank, an earlier precedent that Congress had incorporated into the Dodd-Frank act and that did not draw a bright line requiring federal preemption of conflicting state laws. The court ruled the Second Circuit mistakenly distilled a categorical test that would preempt virtually all state laws that regulate national banks. The court vacated the Second Circuit’s decision below, and remanded back to the intermediate appellate court to conduct a preemption analysis that would be consistent with the standards it articulated here. So Barnett Bank, that earlier decision and any guidance from the Dodd-Frank act just want to say this was a big win for Gupta, Wessler and John Taylor, who argued this case. And incidentally, this big win puts kind of a dent in Lisa Blatt’s winning record at the Supreme Court. And again, this is a loss for Lisa Blatt. But she still has a really insane record of Supreme Court successes. But this was a big win for Gupta. Wessler, who frequently takes on lots of these cases on behalf of consumers, particularly in the financial services industry.


Kate Shaw And it was a fun case. It has this kind of drive interest on escrow issue sounds, you know, kind of like arcane, but it’s so got this. Yeah, but it’s got this like shades of like McCulloch versus Maryland, which I think we said when we previewed the case.


Melissa Murray It does. The power to.


Kate Shaw Yeah. Like what can states do vis-a-vis a federal bank. And here actually they might be able to do some things once a proper version of the preemption analysis is conducted. And of course, I’m sure, Melissa, you were thinking about this. I was thinking about this when I saw this preemption case come down. Like are there tea leaves to read for Am Tala, the case involving emergency medical care for pregnancy emergencies? Because there too, you have a question of a conflict between federal law, which requires stabilizing care and state law in states like Idaho, which don’t allow that kind of care unless the pregnant person is in risk of imminent death? I don’t know if there were.


Melissa Murray Hard to say.


Kate Shaw I got to read here. Yeah, I, you know, look like the state law wins, so that’s no good if we’re talking about Idaho.


Melissa Murray But it was this sort of complicated statutory backdrop, and the fact of this other precedent that had apparently been incorporated by Congress into the statute. So, I mean, sort of sui generis enough that I’m not willing to draw any real comparisons that could lead to a prediction.


Kate Shaw I think that’s fair, and I think it’s almost irresistible to try to read, you know, hints about the big cases in these cases that they’re going to decide this week, you know, in the first couple of weeks, maybe even if.


Melissa Murray You might as well run it up the flagpole. Immediately.


Kate Shaw And it turns out a reasonable person wouldn’t read anything in particular into the message that this opinion sends. Nothing to see here.


Melissa Murray I saw what you did there. Well played friend.


Kate Shaw We will get there directly.


Melissa Murray We will get there.


Kate Shaw Yeah, but first a couple of other decisions to talk you through. The next case we wanted to cover was NRA versus follow a case involving the question whether New York state officials unconstitutionally coerced companies into severing business ties with the NRA. That’s the National Rifle Association because of the NRA’s political positions. And really, its sort of, you know, lone political position, which is the advocacy of guns. So in this case, the court ruled and ruled unanimously for the NRA in an opinion written by Justice Sonia Sotomayor. You know, it’s a pretty narrow ruling, essentially finding that at this stage of the case, which is the very earliest stage, the motion to dismiss stage when all of the allegations in a plaintiff’s complaint have to be treated as true. The NRA had alleged a constitutional violation and also a clearly established one. So let’s briefly walk through the facts of the case. They date back to 2017, when a state agency, the New York Department of Financial Services, and in particular its former head, Maria Zullo, opened an investigation into an insurance product known as carry Guard, which, among other things, offered insurance to gun owners. And this was under an agreement actually promoted and co-branded with the NRA. And that insurance product included coverage for things like, quote, intentional, reckless and criminally negligent acts with a firearm that injured or killed another person. And look, it turns out that insuring intentional killings is a no go under New York law. And so Vallow’s agency investigated and entered into consent decrees and imposed civil penalties pursuant to findings of violations of law. So all of that was fine. It seems pretty clear that that investigation, the resolution of that investigation is the kind of thing that regulators are and need to be fully empowered to do. But the question in the case is about what happened next. So after the tragic mass shooting in parkland, Florida, Voula and other officials at her agency allegedly decided to ratchet up regulatory tactics designed to target the NRA and entities doing business with the NRA. And again, allegedly, those tactics included threats and promises to pursue regulatory infraction investigations by groups that did business with the NRA and to look the other way in the case of businesses that sever ties with the NRA, along with guidance, letters and public statements urging companies to stop working with the NRA. So the allegation is essentially that this agency and other state officials use the power of government weaponized essentially against the NRA, to try to make it essentially impossible for the NRA to do its work and to communicate its message, at least fully in the state of New York. So the NRA sues and says that taken together, all of this conduct, all of these statements violated the NRA’s First Amendment rights, essentially, by coercing these third parties, right dfe’s regulated entities to punish or suppress the NRA’s pro Second Amendment views and also its core political speech. So the NRA actually lost in the Second Circuit, that that court found the government when it took all these actions essentially against the NRA. The government was engaging in its own speech and its own law enforcement activities, and that even if some of the conduct might have been a little dodgy or a little close to the line, or maybe even did violate the First Amendment, it didn’t violate clearly established law, which the NRA would need to show in order to overcome the shield of qualified immunity. And as we said at the outset, the court here reversed.


Melissa Murray The court treated this case as essentially a straightforward application of an earlier decision. Bantam Books. In that case, a state commission used its power to investigate and recommend prosecution to essentially prevent distributors and booksellers from selling certain books. Justice Sotomayor, who wrote for the unanimous court, wrote that, quote, A government official cannot do indirectly what she is barred from doing directly. A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf, end quote. Importantly, though, Justice Sotomayor made clear that Zullo was free to criticize the NRA and pursue the conceded violations of New York insurance law. That is, she was free to criticize the NRA and actually do the parts of her job that were within the ambit of her duties. Justice Sotomayor then elaborated, quote, A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the state to punish or suppress disfavored expression, unquote. And all of this seems right and important, even if, as we discussed in the argument recap for this case, it’s a little hard to swallow the whole idea of the National Rifle Association getting to pierce qualified immunity here, when it’s generally so hard for many individuals to do the same thing when suing, for example, law enforcement for truly egregious constitutional violations. But this ruling about the limits of a. Government’s power to use the regulatory apparatus to punish and coerce speech. Seems important, especially as we grapple with the possibility of perhaps another Donald Trump presidency.


Kate Shaw I totally agree with that. I think that, you know, we had all sort of come around from initial skepticism about the NRA’s claims to actually before the argument and coming out of it, actually thinking the NRA was in the right and that there was an important First Amendment principle that the court kind of needed to vindicate here. And I do think that in particular, in this moment in time when during President Trump’s time in office, he was all too willing to use the apparatus of government to punish and silence critics. Here the court is saying, and, you know, to be seen, of course, if it applies this principle in a neutral and evenhanded fashion, but that it’s going to protect the notion that there are limits to government’s ability to coerce speech. But that is not to say the government cannot take positions, cannot criticize the NRA, cannot suggest it’s engaging in dangerous and destructive activity. But what happened here, essentially trying to use third parties to make it impossible or difficult for the NRA to function and disseminate its message that crosses a constitutional line.


Melissa Murray I think Justice Jackson actually kind of glossed on some of that in this very interesting concurrence that she filed here in that concurrence. She staked out the position that a finding of coercion isn’t by itself enough to rule for an entity like the NRA. In a case like this one, there needs to be a separate finding that the coercion violated a speaker’s First Amendment rights. And her claim, which, you know, is very straightforward but also very insightful, is that the government is coercing all the time. That’s what it means to enforce the laws and coercion. Standing alone is not necessarily a First Amendment violation. And she, I think, in this concurrence, is being really attentive to thinking in the long term about the capacity of government. She also thinks that retaliation claims, for example, are stronger than censorship claims. But she says that the lower courts can examine those separate threads of the case on remand. So she’s really sort of being more nuanced about the facts. I mean, it’s very big district court energy. I think that she’s bringing here, like really attentive to the record and to these sort of in the weeds practicalities of the case.


Kate Shaw I totally agree as to that kind of last point. You were making retaliation versus censorship on the earlier point, I think she is, you know, very much like the finest of district court judges. But I do think she is making kind of a larger point that it’s really critical that the court not hand down rules that disable the ability of government to function. And like some kind of two categorical rule that says coercion is always a First Amendment problem, I think really does run smack into governments need to coerce constantly like civil laws. Criminal law is laws on the books are laws that require people to behave and to not behave in ways that are potentially incommensurate with their optimal behavior. And like that is the nature of law. And so she’s she’s she wants to be very careful that the court is not disabling government from communicating its own messages and coercing where necessary. I actually thought it was interesting that Kagan didn’t join her here, because that strikes me as a very Justice Kagan point about the importance of government capacity. But I also, you know, like her writing in this, I think, like, really sharp and interesting and distinct voice. And, and so I thought it was useful. And back to tea leaves again, you know. Yeah.


Melissa Murray I mean. Did you think this had big Merthy energy?


Kate Shaw Well, I mean, certainly they’re related, and I just didn’t know whether what Jackson was doing was sending up some sort of distress flag about the possibility that the court was somehow eliding the distinction between kind of, you know, pressure and coercion or potentially suggesting that coercion alone was enough to make it a constitutional violation. And that made me wonder whether the Sg’s office and others in the federal government were nervous about either the opinion writ large, the Sotomayor opinion or the Jackson concurrence, and whether that might suggest that they are in some danger of losing in murthy, which actually coming out of the argument didn’t seem to be the tenor. I thought that it likely was the case, you know, look, the conducted issue and that just to remind listeners, is a case in which the federal government was involved with communicating with social media companies around topics like Covid, misinformation and disinformation, and trying to get them to take down misleading posts and things like that. And those allegations are just totally different from the allegations of the abusive use of the regulatory apparatus that this case featured. But I if there’s any tea leaves to read here, I think that maybe there is some slight reason for concern about the outcome in murthy. If you think the federal government should win, which I do, but nowhere near clear enough tea leaves, that I would say that murthy is definitely a case that government is going to lose.


Melissa Murray So it’s worth noting that the last two cases were unanimous decisions from the court. So if you feel the need to scratch your completely moderate three three, three often consensus driven court itch, knock yourself out.


Kate Shaw A good week for it.


Melissa Murray Because we’re all done now, we’re done with unanimous opinions. The next opinion we wanted. To cover is Thornhill versus Jones, and this one comes with a more predictable six three fracture. And the six three divide is exactly what you think it is. So all of the conservatives on one side in the majority and the liberals dissenting. The case involved a post-conviction ineffective assistance of counsel claim brought by a criminal defendant. So yeah, not surprising that there were six conservatives in the majority. The 6 to 3 decision was written by Justice Alito. So it’s basically a disaster for criminal defendants. Here are the facts, and they’re not great facts.


Kate Shaw But of course, like alito’s like gratuitous recitation of that. It’s such a classic Alito and Thomas move. They just need to give you all of the details and, yeah, all the details. Yeah. Which are totally irrelevant to the question of the performance of the lawyer, which is really what the case is about. But never miss an opportunity to just really layer in these gratuitous, violent details in a criminal case where you really.


Melissa Murray He’s just flagging the facts.


Kate Shaw That’s right.


Melissa Murray Flagging the facts. So in this case, the defendant was convicted of multiple homicides under Arizona law. And at the time, the law in Arizona allowed for a capital sentence to be imposed if there were aggravating factors. The sentencing court found that there were such aggravating factors and imposed the death sentence. The defendant then sought post-conviction habeas relief in the federal courts, on the ground that he had been denied effective assistance of counsel throughout his case and after a winding path, including a stint at the Supreme Court, where the court vacated a decision of the Ninth Circuit below the Ninth Circuit, now reconsidering the case held that under Strickland versus Washington, it was permissible to consider new evidence and that upon consideration of that new evidence, there was, quote, reasonable possibility that the defendant would not have received the death sentence if the evidence had been presented at the initial sentencing. Well, the 6 to 3 conservative supermajority at the U.S. Supreme Court concluded that this reconsidered analysis by the Ninth Circuit violated what was required by Strickland that the Strickland analysis was in error, so the court vacated the Ninth Circuit decision below. And well, back to you. Ninth circuit like to do it the right way. Do Strickland right. Yeah. The conservatives obviously when the day here. But there are a couple of very forceful dissents that we wanted to note. Justice Sotomayor penned a dissent in which Justice Kagan joined. And Justice Jackson also filed her own dissent. In the Sotomayor dissent, Justice Sotomayor agreed that the Ninth Circuit had aired in applying Strickland, but she went on to note that, quote, the majority unnecessarily goes further and engages in the weighing itself. The record in this case is complex, contested, and thousands of pages long. In light of this extensive record and intricate procedural history, this is not an appropriate case to reach and settle a fact sensitive issue. End quote. And I don’t think she’s just talking about this case. I mean, this whole idea of the court sort of taking a de novo look of the record and essentially functioning as a district court and sort of parsing the facts itself is something that we have seen before in cases like Alexander versus South Carolina conference of the NAACP, that big voting rights case. And Alito was very happy to mix it up in that case and get into the facts himself. And I think Justice Sotomayor, again, a former district court judge, is sort of like we are not the ones to do this. Like we don’t have the capacity, and we also aren’t close enough to the record to be able to do this kind of work. And perhaps we shouldn’t. So I think that was a larger point about a growing dynamic among the conservative justices. In some of these cases.


Kate Shaw I totally agree that she was speaking more broadly and beyond just this case. I also think it’s interesting that it was captured as a dissent, which I guess is technically right.


Melissa Murray But she was interesting.


Kate Shaw She agreed that the Ninth Circuit got it wrong. So in some ways, you could imagine capturing this as a dissent in part or partial dissent, I guess, because I think what she would have done is not affirm, but vacate and remand, right, rather than reverse. But I think it’s, you know, she obviously deeply disagrees, both as to this case and to the broader trend with the predilection of the conservatives and maybe Alito, first and foremost, to take it upon himself to re weigh facts in a pretty atypical way when we’re talking about an apex court like the Supreme Court. And, and yet I think he is increasingly willing to do that. But yeah, so she, I think, descends from that project as much as from the result in this particular case.


Melissa Murray Maybe she’s just dissenting from this job.


Kate Shaw Yeah.


Melissa Murray Yeah. Like just.


Kate Shaw We’ll get there. It does kind of sound like get on just the speaking circuit.


Melissa Murray Anyway, that was not the only dissent filed in this case. Justice Jackson filed her own dissent. And unlike Justice Sotomayor, she did not concede anything about the Ninth Circuit. Strickland analysis. As. In fact, she said that the court’s characterization of the Ninth Circuit’s analysis was totally wrongheaded in her view. The Ninth Circuit’s analysis, though spare and concise, was not necessarily wrong, as the majority insisted the court had followed Strickland. Justice Jackson said in the majority’s assessment of that analysis as erroneous, quote unquote, rings hollow. She also, for her part, joined Justice Sotomayor’s critique of Scotus as new penchant for being a district court, writing, quote, the majority’s real critique does not appear to relate to the Ninth Circuit methodology. Rather, it merely takes issue with the weight that the Ninth Circuit assigned to each of the relevant facts. I agree with Justice Sotomayor that we are not the right tribunal to parse the extensive factual record in this case in the first instance. That is doubly true where the Ninth Circuit committed no legal error in reviewing that record to begin with. End quote.


Kate Shaw Can I make a tonal observation before we leave this case, which is that.


Melissa Murray She is spicy!


Kate Shaw Yeah. So she definitely has. No. But I actually was going to say I was going talk about alito’s tone, which is that Alito had a couple of like, moves in this opinion that really linked, I thought this writing to another Alito, writing that we are going to spend some time unpacking in our next segment, and both of those moves involve just the deflection of responsibility. Like he loves nothing more than shifting responsibility for his own actions onto family members, onto ethics codes, onto dubious characterizations of binding precedent. So he just says repeatedly here that he has no choice but to rule against this habeas petitioner. And there’s like this, I think, like, look what you made me do energy in a couple of places. So let me let me read just two quotes. One, he says, had the Ninth Circuit engaged in the analysis required by Strickland, it would have had no choice but to affirm the decision of the district court. And then when talking about the position of the court, the Supreme Court itself, he says, among other things, the Ninth Circuit all but ignored the strong aggravating circumstances in this case. As a result, we must reverse the judgment below. Now, maybe that’s nitpicky. Like he’s not. He could just say. As a result, we reversed the judgment below, but that we must reverse the judgment below. I think has this sort of subtle but revealing effect of shifting responsibility from the court, making choices about like how to read law and how to apply law to some other body. Right? Like precedent when it’s convenient or history when convenient, like compelling. The conclusion that he is simply the vessel to the court reaching. And you know, I don’t even know like, here’s.


Melissa Murray Like how women are just vessels, right? Like, without like without agency at all. He has no agency.


Kate Shaw Yeah. Yeah, yeah, he’s a uterus, basically. And.


Melissa Murray Yes.


Kate Shaw He’s he’s the nation’s uterus.


Melissa Murray The world’s most messed up uterus.


Kate Shaw Right? Yeah. In addition to the smallest man who ever lived. But yeah, he is essentially. That’s right. Like he is just performing at the whim of gerrymandered legislatures. And you know what? What can he do about it? No agency whatsoever.


Melissa Murray Kate, you’re reving me up. You gotta let me go.


Kate Shaw I think I think this is the time we’ve been very patient.


Melissa Murray So we covered all of the opinions. I think we did it justice.


Kate Shaw Dutifully. Yes.


Melissa Murray Yes. No pun intended. We’re going to take a quick break, but if this episode is making you. Excited. Breathless. Sad. I don’t know all the emotions, really. Please subscribe to us on your favorite podcast app and text this episode to a friend. Do not spit on your friend. Do not call your friend a fascist. Just text them about this episode and let them know where they too can download it at their leisure. And we thank you for your support.


Kate Shaw The spitting is not going to make any sense prior to our next segment, but I think the point is. There are constructive things to do with frustration, and one of them is to text an episode of this podcast to your friend. And there are less constructive things like spitting on your neighbors.




Melissa Murray All right. We got all of the business out of the way.


Kate Shaw We did.


Melissa Murray It’s time for.


Kate Shaw What the party? Strict Scrutiny After Hours. No. What?


Melissa Murray Dim the lights. It’s time for some Court Culture.


Kate Shaw It is killing me that Leah is not here for this segment. But we will try to do it justice in her absence because.


Melissa Murray I’m ready to go.


Kate Shaw Yeah, yeah.


Melissa Murray I’m literally. LFG. Let’s go. Okay, first up, we all know that Jodi Kantor is a relative newcomer to the Scotus beat, but who knew that investigative reporting into serial sexual abuser and movie mogul Harvey Weinstein would prepare you to cover the goings on at One First Street? In any event, even if that wasn’t the typical trajectory to the Supreme Court beat, Jodi Kantor is making up for lost time. She is bringing real can’t Stop, won’t stop energy to her coverage of the court. Listeners, you’ll recall that Kantor broke the first story about Martha and Alito’s freak flag flying proclivities just two weeks ago. And then she followed that up with a second story about House alito’s second MAGA freak flag. Well, listeners, this week, Jodi has dropped the latest installment in the ongoing drama that I call The Real Housewives of Fairfax County. Jodi headed out to Fairfax County, the seat of House Alito, to delve into the a neighborly ruckus that apparently prompted Martha and Alito to hoist an upside down American flag up her flagpole. I didn’t mean it to sound.


Kate Shaw Up my flagpole.


Melissa Murray You know what I mean? You know what I mean.


Kate Shaw It was the flagpole outside of her home. That’s all.


Melissa Murray The flagpole outside of her home. Well, listeners, Jodi managed to catch up with the alito’s apparently blue state loving liberal neighbors. And the story that she reported begins with a bit of a tease. Here it is. Quote. The police in Fairfax County, Virginia, received an unusual phone call on February 15th, 2021. A young couple claimed they were being harassed by the wife of a Supreme Court justice, end quote. Well, you’ve got me, Jodi. I’m here. I’m listening. I’m all ears. But, listeners. Did you check out that date? February 15th, 2021? Well, after the January 6th attempted coup at the Capitol and well after the January 2021 time frame that Justice Alito earlier provided in trying to explain how and why an upside down American flag came to grace his home. In his statement, Justice Alito said that Martha and flew Old Glory upside down to own the libs after their neighbors posted a quote personally insulting and profane f Trump sign in their yard in January. Well, the neighbors here, according to Jodi Kanter’s reporting, totally cop to posting anti-Trump paraphernalia on the property like they are. Yes. So, like, we hate Donald Trump. We posted a Biden sign. We had an F Trump sign. We said you are complicit. All the things. And they also cop to mixing it up with the alito’s over Mrs. Alito’s complaints about their various sides. Emily Baden, one of the neighbors, even admits to calling Mrs. Alito, quote unquote, the C-word. And what listeners, is the C-word?The word that feminist jurist Sam Alito called, quote, the vilest epithet that can be addressed to a woman, end quote, is the C word citizen? Is the C word constitutional rights holder? No. According to Charlotte York of Sex and the city, the C word is. C-U-next Tuesday. Wow. I mean, and she’s just like, yeah, I said it. What? I mean, it’s like very OJ energy. If I did it, I did it.


Kate Shaw She she did. I think though that this is not necessarily a fair representation of the sequence of events. So we should we should give the listeners a little bit more chance because she did not fly out of the front door.


Melissa Murray Folks go hard in Fairfax County. That’s all I’m saying.


Kate Shaw That comes that absolutely comes across in Jodi’s reporting.


Melissa Murray Do not sleep on Northern Virginia. It’s not just Tysons Corner and Sweet Greens. Like these bitches go hard.


Kate Shaw They do. Martha Ann, chief among them. But let’s but let’s let’s get a little bit more kind of narrative context, because I actually do think it is really deeming of the Alitos.


Melissa Murray I love how you’re all Encyclopedia Brown about this, like, okay.


Kate Shaw Well, Jodi, like. Jodi, like, investigated the hell out of this thing, clearly. And there’s a sequence of events that both I think makes Martha. And look even worse. If that’s possible, then the first two stories did, but also throws into real question the factual representations that Sam Alito made to the New York Times in some weird Twitter interview with the Fox News host.


Melissa Murray Those were never in question for me, Kate. So that’s probably why I don’t care.


Kate Shaw Okay, well, I still.


Melissa Murray I didn’t believe him in the first instance.


Kate Shaw Okay. Well, I think that now it’s really hard for anyone to claim they believe him, but let’s let’s explain a little bit why. Okay. So as Melissa mentioned a couple of minutes ago, the neighbors account does not align with the narrative proffered by House Alito. So basically what these neighbors are saying is that, okay, so this flag was flying in January, so it could not have been prompted by the altercation we were just talking about, which didn’t happen until February. So they had posted the Trump sign Melissa mentioned back in December Martha, and had complained about it. But if the inverted flag was in response to that, that is different from the story Justice Alito has told about the flag being a response to the altercation. It also.


Melissa Murray And the C-word.


Kate Shaw Involving the altercation involving the C word. So what Alito seems to be saying is there was a there was an F Trump sign, there was an altercation with the C word, and then my bride had to hoist the flag.


Melissa Murray Her honor infumed.


Kate Shaw Exactly. That’s not how this unfolded. There was a sign, there was a flag. And then weeks later, there was an altercation. It’s also really odd that if this flag was meant as a defiant response to these neighbors, even, like, I don’t know, through some time traveling. They couldn’t even see the flag. The flagpole doesn’t face their home. It couldn’t have been addressed to them. They didn’t actually even see it. It was other neighbors who reported on who photographed and talked about this inverted flag. So none of this actually adds up at all.


Melissa Murray So listeners, all of this raises a question. Who do you believe. The neighbors or this guy?


Clip Roe versus Wade is an important precedent of the Supreme Court. It was decided in 1973. So it’s been on the books for a long time. It has been challenged on a number of occasions, and I discussed those yesterday. And it is my. And the Supreme Court has reaffirmed the decision, sometimes on the merits, sometimes in Casey based on starry decisis. And I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis for at least two reasons.


Melissa Murray So back to Jodi’s most recent reporting. The neighbors say that on the day of Biden’s inauguration, they drove past the alito’s home and Martha Ann quote, ran toward their car and yelled something they didn’t understand. The couple continued driving, they said, and as they passed the Alito home again to exit the cul de sac, Mrs. Alito appeared to spit toward the vehicle, end quote. And that was the same day that Washington Post reporter Robert Barns came to the Alito homestead to inquire about the flag. And according to the Washington Post, Mrs. Alito shouted at Barnes, insisting that the flag was an international symbol of distress and out of spite, then hoisted a different novelty flag. It’s unclear what was on this novelty flag, but basically her answer was how do you like them flags Robert Barnes. This is truly unhinged behavior.


Kate Shaw So there was a lot going on January 20th in the Alito’s little neighborhood cul de sac. Because, you know, it’s it’s also notable that Alito was one of the Supreme Court justices who declined to attend Joe Biden’s inauguration.


Melissa Murray I just love all of this sophomore summer forex. It’s all so good.


Kate Shaw Yes. It’s so good. Okay, so that’s that’s what was happening in mid January. Yes. So now fast forward to February 15th and the young couple at issue in this story, Emily Baden and her then boyfriend, now husband, are out pulling in their trash bins after trash pickup when the Alito stroll by Martha and upon passing them uses an unspecified epithet, calls them fascists. And Baden says that she responded with something like this how dare you behave this way? You’ve been harassing us over signs. You represent the highest court in the land. Shame on you. Okay, so that’s her sort of self-reported what I said to to Martha. And then she’s asked, what about the C-word? And then she says, okay, yeah I’ll fully cop to that. So at some point in her, you know, noble and patriotic speech, she also use the C-word that is in there. Exact shame on you c-word.  So yeah. So like there were words exchanged.


Melissa Murray This neighborhood is wild and full of narcs because another neighbor confirmed hearing Emily Baden call Martha Ann Alito the C word, which is curious.


Kate Shaw Here we have another. And it’s an yeah, that’s another weird divergence, because Alito says it was the boyfriend who used the vilest epithet that can be be addressed to a woman.


Melissa Murray Because the girlfriend didn’t have a voice, and everything was channeled through her partner, her male.


Kate Shaw Right. It has to be him because that’s that is the register in which, like, her auditory passageway.


Melissa Murray I heard talking. I saw a woman and a man. So it must have been the man talking.


Kate Shaw He. It was his voice. Absolutely. So.


Melissa Murray Wait wait wait wait wait. That again I just again, the boyfriend is the one that he says uses quote unquote, the vilest epithet that can be addressed to a woman end quote.


Kate Shaw Yeah.


Melissa Murray Anyway.


Kate Shaw I want to know what epithet she use. The unspecified one.


Melissa Murray Oh I mean like with fascist.


Kate Shaw I only presume Jodi’s working on reporting that it was something with fascist, just.


Melissa Murray Like the F-word don’t you think. Effing fascist. Kind of rolls off the tongue its alliterative,.


Kate Shaw I want it to be something even more colorful than that. I don’t know, honestly. Like, I think her crazy knows no bounds as far as we can tell at this point, so I don’t know why.


Melissa Murray Maybe she called him a knave. I don’t know, like.


Kate Shaw A fascist and a nave, I like that. Well, I’m sure Jodi will tell us if in fact that is what happened. But.


Melissa Murray Call in Jodi. I mean, let us know. Tips. We’re taking tips too. This I honestly, I was so into this. I mean because it did it had a kind of soap opera esque quality to it, I have to say. I mean, it really did feel like sort of reality TV. I was like, oh my God, what’s going to happen next? And then she spit on the car. What?


Kate Shaw I know the combination of she’s the one who initiates this. This couple is literally pulling in their garbage bins, like, you don’t want to talk to a neighbor when you’re out there, like in your slippers, bringing in your garbage bin and have a neighbor approach you and start yelling at you and call you a fascist. And that’s weeks after having run at you and spit at you. Like this is the wife of a Supreme Court justice, and the conduct is so un decorous. It is wild. And this is it’s I think I feel like it’s a little hard to square this version of Martha Anne with the version. Do you remember 2005? Sam Alito is in this confirmation hearing. She is so disturbed by the questioning that he is subject to, about activities at Princeton, you know.


Melissa Murray Keeping women out of Princeton. For those of you who weren’t around. In the 1970s.


Kate Shaw Those kinds of activities. That’s right. And she essentially storms out of the Senate hearing room in tears.


Melissa Murray Weaponized tears.


Kate Shaw I mean.


Melissa Murray Calling the messenger.


Kate Shaw Yeah. You know, it is. That’s right. So they’re like these sort of angry tears. She’s it’s probably why she’s left. She’s gone. Can we go to attack the manager.


Melissa Murray Pair that with the dignity of one doctor, Patrick Jackson, who literally had to sit there while Ted Cruz accused his wife of basically being a pedophile, and doctor Patrick Jackson, who could dismantle and dismember Ted Cruz with a scalpel, was dignified. He did not storm out of the chamber. He did not cry. He just sat there.


Kate Shaw Satorial splendor. He showed he had the beautiful socks on.


Melissa Murray Beautiful socks on. His beard was trimmed.


Kate Shaw Beautiful daughters next to him. Yeah. It was.


Melissa Murray He looked like a normal person. Like just like, okay, this is politics. This is a this guy is crazy. I’m not going to do anything crazy too.


Kate Shaw Yeah. So the question is, is it or is it not hard to square that, Martha. And with this spitting, flag hoisting, neighborhood scourge describing the story, I don’t know. But I do feel like we have to give credit where credit is due, which is Leah, who again is not here today, had a sixth sense about Martha, and I called it. She did. I don’t know how far back it goes, but we have receipts from January 2023 of Leah on Martha Ann so let’s roll the tape now.


Leah Liman Clip I’m unwilling to commit to Virginia Thomas being our favorite SCOTUS spouse. I think Martha Ann is really making a stealth play. And again, I’m unwilling to commit the error of Martha Ann erasure. So we’re still in the market for clever Martha Ann segment names if any listeners would like to offer those.


Melissa Murray Leah called it basically. I mean, Leah has been pushing us to always remember the ladies and in particular one lady, Martha Ann don’t leave her out. And here we are. But that brings us to the next important development, as it were, in this whole saga. So Jodi Kantor’s story runs last week on Tuesday, May 28th. On Wednesday, May 29th, the Emperor struck back. That’s right. Justice Alito had words for those of you who thought that these flags at his home raised red flags. And surprisingly, these words did not appear on the pages of The Wall Street Journal. But that literally is the only thing that is surprising about Justice Alito’s response. So let me lay a little context for you. The two leading Dems on the Senate Judiciary Committee, Senator Durbin and friend of the pod, Sheldon Whitehouse, sent a letter to Chief Justice John Roberts, basically asking what the fuck, my dude, what is going on here? Can you please explain this? The chief did not issue a response. We don’t know if he was planning to, but it turns out. He was preempted, as it were, because Justice Alito decided to respond.


Kate Shaw And it wasn’t a subtle. It wasn’t a subtle kind of preemption. It was pretty catagorical.


Melissa Murray It was pretty categorical. And wow, was this a response. So the letter is publicly available. I urge you to Google Alito letter and it will pop up. But how does one describe a missive such as this one? The words epic. Elegiac come to mind. This letter is. Destined to be memed. It will certainly give rise to doctoral dissertations about the law of coverture and the history of women’s property rights. And it will certainly inform episodes of the show couples therapy. I mean, it’s just a lot. It’s a lot. It’s big big troll energy. And I expected it to be aggrieved and defensive and gaslighting and a little incoherent. And it was all of those things. As predicted, he always delivers, but I didn’t quite expect it to be such a feminist tour de force. Right.


Kate Shaw Yeah, I, I’m not sure I saw that coming either.


Melissa Murray I mean. Wow, this is.


Kate Shaw Was it a Alito bit feminist?


Melissa Murray Like Susan Sontag? Maybe. So Feminista, a feminist show, as it were, and not even a little bit feminist. Bigly, bigly feminist. Right. So as. Explained.


Kate Shaw I know that the letter does contain multitudes. But before we get into the substance, can I just pause to note? You know, you said a minute ago, Melissa, the initial letter came from Durbin and White House. And I do think it’s worth underscoring that it wasn’t even addressed to Alito.


Melissa Murray Is he intercepting mail?


Kate Shaw It said to Roberts, like you said, you know, WTF? Like it said a little more. It says, look, we think Alito needs to recuse. We would like a meeting with Roberts who discuss Supreme Court ethics broadly. But Alito literally like, grabbed the mic, was like, I’m glad you finish. But Martha and I don’t know that everyone knows Martha Ann had the best album deserves, deserves whatever accolade the Supreme Court spouse could possibly qualify for. That’s right. So that was essentially what this was. He he literally just grabbed the mic from John Roberts and didn’t even really say that he was going to let John Roberts finish. He just proceeded. And I do think that that is meaningful in that he is telling the committee and the American people not to bother looking to or engaging with John Roberts because that guy has no real power anyway. And I thought that was actually an incredibly revealing move before you even get to the subject.


Melissa Murray It’s a jurisprudential cuckolding of John Roberts. Like, yes, I like yes, it’s John Roberts mad. He should be. He should be really fucking mad.


Kate Shaw Look, maybe like he’s working on albums. That that that ten years from now the world will see. We’re all inspired by this moment. Snake farm jacket John Roberts the snake farm is going to come for Salido. I don’t know. I mean, I just feel like, I don’t know, maybe you sort of ride off into oblivion, vacate your seat, let Joe Biden name a new chief and work on, you know, on your albums.




Melissa Murray So let’s get into the substance of this letter. Let’s do it first of all. Per usual, the letter 100% throws Martha and Alito under the bus. So Justice Alito blames her as he previously blamed her. He blames her for flag number one. He also blames her for flag number two, although he adds some amazing details that I think really give color to the story so as to insurrectionist adjacent. Flag number one. He notes that he implored his bride to please take it down once he saw that old glory was flying upside down and Martha and was like, no. No, I do what I want. And for several days it remained in that upside down posture. While she refused to bring it down as her husband, a sitting member of the Supreme Court, had requested. And again, this detail prompts me to ask, why are justices who cannot seem to control their own wives so intent on controlling other American women? Or have I answered my own question? Is that really just the answer right there like that? Explains Dobbs in a nutshell. Like, I can’t control her. I’m a control all of you. Fine.


Kate Shaw Yeah.


Melissa Murray So that was a very interesting and tantalizing detail in the letter. As for the flag flying more generally, Justice Alito basically suggests that his wife, Martha Ann, is some kind of Hobby Lobby garden decor gnome loving weirdo who is quote unquote fond of flying flags. And to be very clear about how weird she is and outside of the norm, he notes that although she is fond of flying flags, he is not right. So he’s the normal one here, which again says so much about this relationship.


Kate Shaw It really does. Okay. So let’s drill down a little bit more. You Melissa, we’re talking about dissertations on the law of coverture. There again is just so much to unpack here. So he insists in the letter that he and his wife owned their Fairfax home jointly. And she therefore has the legal right to use the property as she sees feminism and feminist. And there’s no he literally says there is nothing he could have done to have the flag taken down more promptly.


Melissa Murray FYI he also has a legal right to the property and what happens there too.


Kate Shaw But yes, except for when it’s convenient for him to insist that he does not. But I mean, in addition to Dobbs, which you alluded to a minute ago, you know, just to win the clock back even further, this is the guy who, when he was on the Third Circuit, wanted to uphold the spousal notification provision in Planned Parenthood versus Casey, which would have said that husbands get to control the decision.


Melissa Murray In order to get an abortion. Ladies, if you were married, you had to first tell your husband about it. He was like, yeah, yeah, sounds great. That sounds right.


Kate Shaw He was like, that’s that’s fine. And and the Supreme Court, even though it actually did uphold a lot of the Pennsylvania abortion restrictions that were at issue in Casey.


Melissa Murray And drew the line there.


Kate Shaw Rock that down hard in, in no uncertain terms like no, that’s just totally inconsistent with basic notions of autonomy and citizenship to be required like a child to go to your husband to get permission to have a medical procedure. But Alito was, you know, fine with that. So I think in his worldview, husbands can control their wives uteruses and childbearing, you know, capacity and obligations, but not the fabric flying over their homes.


Melissa Murray Those are property rights, Kate. Real reliance interests accrue there. Not in these inchoate reliance interests in abortion. Another historical aside about Justice Alito, when he was then Judge Alito in that Third Circuit opinion, justice O’Connor, who occupied the seat that Justice Alito now sits in, was the one who bought, I think, real anger and defiance to that spousal notification provision in Casey, like she wrote about how allowing that provision to stand would endanger women who were in really unsafe domestic situations. And she was speaking specifically of domestic violence. That’s what we’re basically pitting here. Like she was the one who was like, no, this cannot stand. Whereas this guy as a third circuit judge is like, no, totally fine, you got to check in with us ladies before you have an abortion. But if you want to fly a flag like this is joint property, like, have.


Kate Shaw Nothing we can do about it.


Melissa Murray Yeah. Feminism. Yeah.


Kate Shaw So basically says like, yeah, this is her. Nothing to do with me. And that’s as to the inverted flag in Fairfax. But he says essentially the same thing about the appeal to having flag flown over their home in new Jersey.


Melissa Murray Basically says not my flag pole, not my freaks.


Kate Shaw Like, it’s just so bad faith and so gaslighting, like everything Alito does. But it’s simultaneously like, I respect the Queen with whom I cohabit. Right. But also like, she cray like. Isn’t he basically saying both? I feel like. That is the dual message of this. Well. She’s weird. Yeah, yeah. No, it’s liked and. It’s sort of convenient that he.


Melissa Murray There was more here though. So Kate, what I thought was really interesting about this detail about the Long Beach Island house is that he answers a question that I think we had previously floated, which was, how does a public servant who makes about $270,000 a year, who has a wife who is not employed, afford two homes, right? I mean, a reasonable question to ask. Well, yes, listeners, the answer, Justice Alito tells us, is intergenerational wealth. You know, the idea that if you don’t have crushing student loans preventing you from buying a home and amassing capital, you can take all of that capital that you have amassed, and you can then bequeath it to your heirs so that someday in the future, they can buy a Long Beach island vacation home where they can be free to fly their MAGA flags. And it has absolutely nothing to do with their husbands, who have actually shed all over student loan relief. Because the vacation home is in your name only you own it free and clear solely. He’s not even on the title. That, ladies, is feminism. And yes, you have come a long way, baby. Alito out.


Kate Shaw Yeah, you own it. You are really your grandfather and great grandfather. You built that, right? And these and these unworthy borrowers of student loans.


Melissa Murray They don’t build and they don’t have a flag to fly or a flagpole to do it?


Kate Shaw Nope. So there is more, if you can believe that in this letter, because Alito cites the useless ethics code that the justices purported to adopt last year, the letter doesn’t like the federal recusal statute, but cites the justices own ethics code and says that because these events were all very legal and very cool, any reasonable person would realize that the flags did not mean that the justices impartiality might reasonably be questioned, and basically only rabid partizans who wanted to change case outcomes would think that these events involving these flags warranted the justices recusal. And he goes on to say, there’s nothing in these events that warrants recusal. And moreover, he actually couldn’t even recuse if he wanted to because the ethics code requires him to sit. I know we’ve already played a little bit of old tape on this episode, but I did want to play one more excerpt from an old episode, which was the episode where we dissected a little bit this new quote unquote ethics code. So let’s listen to what we had to say about it. When it dropped.


Melissa Murray The Supreme Court adopted a kind of ethics code. And again,.


Kate Shaw They adopted a document and ethics code.


Melissa Murray Yes. An ethics like code.


Leah Liman Clip An ethics adjacent code.


Melissa Murray Yes. Yes.


Melissa Murray Yeah. An anti ethics code.


Leah Liman Clip A code of misconduct.


Melissa Murray A code of misconduct


Leah Liman Clip Yeah. Yeah.


Melissa Murray Yes.


Kate Shaw But but it’s again like it’s this is like the tone that I was talking about earlier in the habeas case, which is he suggests that I’m not like refusing these recusal requests because I am chomping at the bit to, you know, write an opinion, siding with Donald Trump.


Melissa Murray It’s oh, there’s a letter. There’s a new letter, Kate. Oh my God.


Kate Shaw Oh, since we started recording.


Melissa Murray Oh my God, there’s a new letter from Alito. No, it’s Chief Justice John Roberts. Oh my. God. Can we have a dramatic reading? Can we do that?


Kate Shaw Wait. What?


Melissa Murray Roberts has written a letter. Okay. Chief Justice Roberts has entered the chat. All right, so he writes the following letter. I’m just like reading this in real time. I haven’t ever read this before. Okay. Dear Chairman Durbin and Senator Whitehouse, thank you for your letter of May 23rd, 2024. Already. It’s on a very decorous tone. There’s no spitting, no calling anyone a fascist. Okay. In regard to questions concerning any justices participation in pending cases, the members of the Supreme Court recently reaffirmed the practice we have followed for 235 years, pursuant to which individual justices decide recusal issues. History and tradition, bitches. We’ve been doing stupid, ineffective. Things for 235 years.


Kate Shaw Okay, but also this code is like six months old, like, come on, but go on.


Melissa Murray It is my understanding that Justice Alito has sent you a letter addressing the subject, literally. The understatement of the year.


Kate Shaw That’s. But I feel like that’s a. Pretty I mean, look at the next paragraph. I just skim it till Roberts is not riding it on a white horse to fucking change the course of history like we knew that. But I do think that sentence suggests he might not be that enthusiastic about the tone of the Alito letter, like he might be trying to distance himself a little bit from he’s like, I don’t know what that guy said, but like, I guess he said some shit. I feel like that’s.


Melissa Murray I think what follows is some pretty weak sauce from. But to be gotten the chief Justice in name only, of course, I must respectfully decline your request for a meeting. As noted in my letter to Chairman Durbin last April. Apart from ceremonial events, only on rare occasions in our nation’s history has a sitting chief justice met with legislators, even in a public setting, such as a committee hearing with members of both major political parties present, separation of powers concerns and the importance of preserving judicial independence. Counsel against such appearances. Moreover, the format proposed a meeting with leaders of only one party who have expressed an interest in matters currently pending before the court simply underscores that participating in such a meeting would be inadvisable. Respectfully, John Roberts.


Kate Shaw CC the senior Republican members of the committee.


Melissa Murray Graham Kennedy okay, first of all, it may be the case that a sitting chief justice may not have appeared before a committee, but we know that Clarence Thomas and Anthony Kennedy definitely appeared before a committee to talk about Bush v Gore. So it’s actually.


Kate Shaw A lot of grounds about that in his scrapbook, which we’ve talked about on the show. But remember, Melissa, that was actually this is what they have to do. I think that was a routine appearance to discuss the court’s budget. And they got asked for some clarity during the hearing. So yeah, so during the next round of pro forma appearances for a budgetary discussion, they need to ask them about ethics. And it would I guess it wouldn’t be. The chief was right. It was Thomas and Kennedy last time Breyer used to Brian Kennedy. I think of both gone a bunch of times. So that I think is, at a minimum, something that committee leadership just needs to plan to do to press whoever shows up about this question. But I just think like it’s the lip service to the separation of powers, when the whole point is the separation of powers is wildly out of whack right now. The court is unconstrained in any way. What Congress is doing is trying to reinstate a modicum of control over the justices, not even what they do, but just in having a dialog with them. And Roberts just loves to invoke, you know, these platitudes about the separation of powers to say, go fuck yourself. And like this state of affairs cannot be sustained like it just can’t. The court thinks it is totally unaccountable, and it needs to be shown that that is wrong.


Melissa Murray So Jamie Raskin, who is a representative from Maryland, has an op ed in The New York Times. Basically, he says that there are ways under existing statutory laws and sort of, I guess, you know, administrative or executive policies that you could force the justices to recuse themselves and that every avenue I this is basically the point of it. Every avenue must be considered and cannot be discounted because the situation has become so dire for all of the reasons that you suggest so.


Kate Shaw And Raskin has, I think, been really, really on this. And but without controlling the house, there’s only so much that he can do. But I thought that op ed was really important. He’s got a bill on an inspector general for the court, which I think is very much an idea worth pursuing seriously. But I mean, if you needed more evidence that Roberts just like, is not the man for this moment, if anyone continued to hold out some shred of demand.


Melissa Murray A man for all treasons, but not for all seasons.


Kate Shaw You know that the kind of shred of institutional ism that we saw in him and also his willingness to check excesses of, you know, his fellow judicial travelers and the Trump presidency. I don’t know where that John Roberts is, but it’s not in this list.


Melissa Murray We’ve given him a lot of credit as being the member of the conservative bloc who is institutionally minded, and that’s really been important. But he hasn’t been doing it in these moments where it counts, like not with regard to Clarence Thomas, not with regard to Sam. Alito. And basically the court’s reputation is going to be in shards, like. I mean, it’s an interesting question, like, you know, are they delaying announcing the outcome of Fisher and United States versus Trump? Because to do it now would be so weird, given all of the news, like, I don’t know. I mean, it’s rank speculation on our part and think about it, but the fact that people are thinking that that could be what’s happening underscores the real ethical quandary this court finds itself in where, you know, like maybe they’re delaying because everyone knows how stinky it would be to have those decisions come out right now, when we’re all we’re doing is talking about whether the alito’s are, in fact, MAGA heads.


Kate Shaw Yeah, especially if he’s writing in one of the opinions, which I mean, who knows?


Melissa Murray Anyway, so, Kate, what is the Tldr of the Alito letter?


Kate Shaw I mean, I think that my Queen, you know, well, let her freak flag fly and like and feminism requires me to respect it, but also like she’s crazy and I think that he’s trying to say both.


There is some kind of you know, bitches be crazy energy to it. But, you know. I gotta wonder what’s going on at House Alito because if this is the explanation, like, and I have the propensity to spit on people’s cars. I don’t know what I’m doing inside the house. Like I’m kind of a little scared for him.


Kate Shaw Same.


Melissa Murray But I actually don’t care if something did happen. I don’t think I would care anyway. i think the thing that stood out for me with this letter is not just the throwing his wife under the bus and then rolling the bus over her 4 or 5 times. I think it’s just the absolute troll energy of the letter. I mean, it is a big fuck you to American women. He basically reveals that he is pro-choice. As long as the choice is about which flag you’re going to fly. Like, I respect your choices to fly as many flags as you want. He comes out and essentially suggests that Martha Ann Alito has a right to privacy, right? Not only does she have a First Amendment right to express herself, she has a right to privacy to do these things in the homes that she owns, whether jointly or solely. But she’s the only one who does. And not once, not twice, but actually three times. The man who wrote Dobbs versus Jackson Women’s Health Organization specifically notes that his wife is a rights holder entitled to make her own decisions and that he, as her husband, honors and respects her right to do so.


Kate Shaw It must be nice.


Melissa Murray Yeah, like if we legalize polygamy, can we all marry Justice Alito and take part in this, Martha Ann like, right situation. Is like that would be. Maybe that’s how we get our rights back.


Kate Shaw American women, right. Did once have a right to privacy that encompass the right to terminate a pregnancy until Sam Alito, in his infinite wisdom, decided otherwise. So maybe that’s the solution. We all have to marry Sam Alito.


Melissa Murray I mean, I mean, who’s going to take one for the team for that baby? I don’t know, but like. Is it worth it? I don’t know, it’s a genuine question, but I mean, basically, she’s the only woman, maybe Ginni Thomas who has rights worth respecting. Yeah.


Kate Shaw Well, given that another letter broke mid recording, I don’t know what either. On the exchange of letters front or in Jodi Kantor investigative files, we are likely to see between now and our next recording. But whatever it is, I.


Melissa Murray Mean, I’m here for it. Yeah. Are there any other SCOTUS spouse news that we need to cover?


Kate Shaw Not like that. I mean, there is one little piece of Scottish spouse news, which is that we learned in the last couple of days that Jessie Barrett, who is the husband of one Amy Coney Barrett, is part of the legal team representing Fox News in a defamation lawsuit. And it’s yes, it is that Fox News. The one that you know, has in recent years had a number of defamation lawsuits, to fend off. Maybe this raises an eyebrow for some people. But actually, sorry about that. Yeah. First, just on the Martha and Jenny Thomas Richter scale. This is nothing.


Melissa Murray This is like that earthquake in New York that happened a couple of months ago.


Kate Shaw I think this is less than that.


Melissa Murray I was just like. Like, everyone’s freaking out. I was like, yeah.


Kate Shaw Well, you have spent many years in California. For many of us, that was our first earthquake. So it actually felt pretty dramatic.


Melissa Murray I  know you all like thing like rest in peace. My mentions, you guys are all like like, we don’t have the codes for this. I’m like, okay, calm down. Like, I’m just saying, just hold on. Get under a table and hold on. So it was yes, yes, I it’s just an.


Kate Shaw Ad, but I never had and and it seemed like a big event. But I also think that it’s important to keep perspective. And Jesse Barrett is a lawyer at a law firm that can have clients like, that’s fine that, you know, when there was a little bit of a FIR over some headhunting work that Jane Roberts, the wife of the chief Justice, was involved with, we had basically the same reaction on the show, which is it is okay for spouses of Supreme Court justices to have jobs, to have hobbies.


Melissa Murray To have flags.


Kate Shaw Passions, and to pursue them. We are not Anti-Flag. We truly are not, nor are we anti employed spouses. So I actually think that I’m going on the record right now and saying, I think Jesse Becker can represent whoever he wants to. And like hopefully, I think I worry about losing credibility if no.


Melissa Murray And many if any event about everything we’re not. No. What you just said, though, did remind me of something I meant to say. Vis-a-vis the flag flying alito’s. Yeah. We didn’t see this earlier, but, you know, we cover almost every case. The court here is. And a couple of years ago, there was another, I think. Was it just last term, like, sometimes they run together.


Kate Shaw Now, a couple of guys.


Melissa Murray There were Shirt Left VS the city of Boston. And that was a case about whether the city of Boston, which made some of its public flagpoles available to be rented where private groups could put their flags on the flag poles, whether they could prevent camp Constitution from flying its flags on the flag pole. And Justice Alito.


Kate Shaw We should say, though, Camp Constitution sounds like a secular, like concentration camp, but actually it was a Christian flag, and it’s very much not a secular outfit. It’s, you know quote religious.


Melissa Murray Thank you for the context. Yeah. So Justice Alito wrote a concurrence there. And again this guy, it’s almost like does anyone keep records but us? So he wrote this concurrence where he basically said that, you know, when the government sandwiches a private flag between two flags that represent the city and the state, like actually public flags, one could reasonably infer that the private flag is also reflecting the views of the government like that they’re so inextricably intertwined because it’s not a public flagpole, even though it’s a private flag. And there are these other trappings of public life around it that that’s the government’s message, and you’re sort of like kind of similar here. Like, you know, I know it’s her house, I guess, in Long Beach Island, but you live there with her. You’re married to her. Is it really a stretch for individuals to infer that you approved this message?


Kate Shaw Yeah. Yeah. No. And he I think there he is saying that inferences drawn by passers by should not be sort of the determinative question. But no, I think the.


Melissa Murray But he said that’s exactly right. He notes that people could make people may.


Kate Shaw And understandably do. And I absolutely think that that’s true about people walking by his house either.


Melissa Murray And he goes right to the castle question in new Jersey.


Kate Shaw Yeah.


Melissa Murray In other news, another justice spoke of a somewhat more normal reaction to distressing and maybe even personally insulting writings. So on Friday, May 24th, Justice Sonia Sotomayor was at Harvard University, where she received the prestigious Radcliffe Medal from the dean of the Radcliffe Institute, Harvard law professor Tamiko Brown. Negin was a very festive event. There was a rollicking testimonial to the justice from Egot winner Rita moreno, who also narrated the audiobook for Justice Sotomayor’s bestselling memoir My Beloved World. And as a prelude to the conferral of the Radcliffe Medal, Justice Sotomayor was interviewed for about 30 minutes by former Harvard Law School dean and her Yale Law School classmate, Martha minow, who we might refer to on this podcast as the other other MM maybe she’s the original MM I don’t know, hard to say. In any event, Minow asked Justice Sotomayor how she coped with. Being in the minority so often on the court. And Justice Sotomayor had this to say.


Clip There are days that I’ve come to my office after an announcement of a case and closed my door and cried. There have been those days, and there likely to be more.


Melissa Murray Kate. The restraint.


Kate Shaw Yeah. She is graceful, elegant when faced with personally insulting decisions from her colleagues. Does she fly an insurrectionist flag?


Melissa Murray No. Because she would be impeached. She would be impeached. That’s why.


Kate Shaw I was going to ask about what if she spat at her neighbors? But she would probably be.


Melissa Murray Impeached for that too.


Kate Shaw For battery.


Melissa Murray Right?


Kate Shaw No. She goes. She walks back to her office like an adult and cries to herself, which is, I think, just a.


Melissa Murray She doesn’t storm out of the chambers in tears. She goes back to her office, and then she breaks down like like all of us do.


Kate Shaw Yes.


Melissa Murray I think.


Kate Shaw And we’re all going to be doing that a lot.


Melissa Murray This this. I think this was more than just here’s how I cope. This is also like, here’s how you’re going to be coping in the next couple of weeks. She seemed to be telling us that we all ought to stock up on Kleenex, because it’s about to go sideways at one First Street, right? I mean, she’s basically like, there’s bad stuff coming.


Kate Shaw Yeah, which we knew, but now we really know.


Melissa Murray Well, so. Thanks for telling us, Queen. And many congrats on the Radcliffe Medal. I was there, it was beautiful. Rita moreno was was like 92. Was so beautiful and luminous. And just like, oh, she was just amazing. I’m like, wearing all white beautiful necklace. Just like.


Kate Shaw Do you think it’s the Egot? Do you think it confers eternal youth?


Melissa Murray I don’t know, but I want one. I mean, like, she just looked so amazing.


Kate Shaw Justice for Melissa. You need your EGOT.


Kate Shaw I mean, we need to. When it needs to be, when Egot is actually. We need to throw the Ambi in there.


Melissa Murray Yes. So, like, Rita Moreno does not have an Ambi, so.


Kate Shaw Put the two of you together. And we got it.


Melissa Murray And she’s like. I’m actually still okay.


Kate Shaw Before we leave, just a couple more notes. We just, you know, again, Sotomayor was reminding all of us of, in general terms, how bonkers the next month is going to be. We will give some specificity on that point. The court has 29 ish opinions left to issue. Most of them are big, big cases. They include, but are not limited to Trump immunity prosecutions for many other gen-xers. If a pris tone, I’m taller. The domestic violence and gun case Rahimi the bump stock case Cargill. The future of the Chevron doctrine agency adjudication and the future of the administrative state more broadly. Wealth taxes, the opioid epidemic and the Sackler bankruptcy settlement criminalizing homelessness. The murthy social media case we referenced a few minutes ago the net choice cases about state regulations of social media companies. I mean.


Melissa Murray All that’s outstanding.


Kate Shaw A month. Yep.


Melissa Murray Just just a month. What a month. Trying to make some bad decisions. And we’re going to be here for them and whatever else Jodi Kantor and Martha and have in store for us. So stick with strict scrutiny. I’m the next opinions are going to come out this Thursday, and we just want to get you prepared in advance. We’re probably gonna have to do some self-care over the next couple of weeks. So we didn’t want to announce this without Leah. But given that there are so many outstanding, momentous opinions to come and we’re going into the season of bad decisions, it seems fitting, given the subject matter, that we announce the official Strict Scrutiny. Summer cocktail. Right. So last summer, listeners, you know that we were sipping refreshing Ginni tonics full of bitters. But it’s a new season, bitches. And we have a new drink on tap. And it is. The Martha Rita. That’s right. You can make your own Martha Rita at home. You will need some tequila. Some freshly squeezed lime juice and some Cointreau or triple stick. Some people like to add agave for sweetness. But an authentic Martha Rita is not really sweet. It is decidedly sour. So we recommend doubling up on the lime juice. Just put it all in the shaker. Double up on the lime juice. Shake it upside down. That’s critical. And then take. A frosty glass. Make it a little damp on the outside. Roll the whole thing and salt the whole. Not just the rim. The whole glass. And once the whole glass is good and salty, like your favorite justice, pour the mixture in and then drink up and let your freak flag fly. That’s how you enjoy the summer with a Martha. Rita. What do you think, Kate?


Kate Shaw A great recipe. I mean, I think you are you. You love a good margarita, don’t you? I too love a good margarita. I tend to prefer mezcal.


Melissa Murray You can add Mezcal. I mean, it has a smoky complicated flavor. I don’t know that a smoky, complicated flavor works for someone who’s at Hobby Lobby buying novelty flags, but if. If that’s your jam, do it. When I was, you know, testing the various options for summer cocktails, I did think about a Marth-ini. It felt a little elitist. I have to say. So I said no to that. I think the Martha Rita is, is really where it’s at. It’s it’s refreshing. It’s salty as well. Sour.


Kate Shaw Would you enjoy it on the Jersey shore. I feel like it’s a good drink to enjoy.


Melissa Murray 100%. GTL and a Martha Rita.


Kate Shaw Yeah, yea.


Melissa Murray Yeah.


Kate Shaw All right. Drink of the summer.


Melissa Murray I think so.


Kate Shaw So. All right, well, I think we will have to leave it there. But before we go, by the way, just in time for June, the Pride or Else collection just launched at the crooked store. It includes designs for everyone, whether you are leading the parade or showing up as an ally. Ally, this month isn’t about you, but you still get some merch. The collection also includes fresh versions of bestselling Leave Trans Kids Alone, you Absolute Freaks merch that is evergreen unfortunately. And most importantly, a portion of proceeds from every order go to Crooked’s Pride or Else Fund in support of organizations working to provide gender affirming care and lifesaving resources to queer and transgender communities across America. Prep for Pride at Crooked.com/store.


Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell with help from Bill Pollack. Our intern this summer is Hannah Saraf, audio support from Kyle Seglin and Charlotte Landes, with music by Eddie Cooper and production support from Madeline Herringer and Ari Schwartz. And 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, run a flag up the flagpole upside down and then rate and review us. It really helps.