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From the DOJ’s targeting of the Southern Poverty Law Center for its anti-KKK work to Kash Patel’s outrageous lawsuit against The Atlantic for its reporting on his unfitness for office to the Fifth Circuit’s legal contortions allowing Texas to mandate the Ten Commandments be displayed in classrooms, it’s been a wild week in the law. Kate and Leah unpack it all before recapping the week’s oral arguments, which featured the welcome return of former Solicitor General Elizabeth Prelogar to One First Street’s hallowed halls. For the second part of the show, Kate and Leah speak with University of Pennsylvania law professor Shaun Ossei-Owusu about his new book, Law on Trial: An Unlikely Insider Reckons with Our Legal System.

Favorite things:

• Kate: Sexistential, Robyn; USAID Whistleblower Says It Was Even Worse Than People Knew, Vittoria Elliott (Wired); Into the Wood Chipper: A Whistleblower’s Account of How the Trump Administration Shredded USAID, Nicholas Enrich; Enrich’s interview on Pod Save the World; Melissa on the Work Friends podcast

• Leah: The Great Divide, Noah Kahan; Kahan’s Tiny Desk Concert; It Is Time for Ruthless Aggression, Jonathan V. Last (The Bulwark); The Gerrymandering Fight Should Be A Dress Rehearsal For Court Packing, Brian Beutler (Off Message); Sanewashing the Emergency Docket, Steve Vladeck (One First); The SPLC indictment, the Klan history behind it, and the ignominy of Todd Blanche, Chris Geidner (Law Dork); LEGO Kash Patel videos

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Preorder a signed paperback of Leah’s book, Lawless, here.

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TRANSCRIPT

Melissa Murray [AD]

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

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

Kate Shaw I’m Kate Shaw. Melissa is unfortunately away this week, but we have a jam-packed episode for you anyway. We will start with legal news, including the DOJ’s decision to charge the Southern Poverty Law Center for, get this, efforts to take down the Ku Klux Klan.

Leah Litman Not a joke, just a fact. We will also cover the latest and greatest from both America’s liquor cabinet, this time focusing on FBI Director Cash Patel and America’s thirstiest circuit. Yep, the Fifth Circuit is back on its bullshit, by which I mean bringing down the separation of church and state. We’ll briefly recap the cases the Supreme Court heard last week, say a quick word about the two opinions the court released. We may also briefly walk through some of the cases the court will hear this week.

Kate Shaw So as Leah said, we have a lot to cover, but also is that the first time you’ve said liquor cabinet?

Leah Litman Um, maybe?

Kate Shaw I don’t remember hearing it, and I love it, just wanted to flag that. I support fully. Okay, so as Leah mentioned, a lot to cover and we’re not going to have time to fully recap all the arguments the court heard last week, but we are definitely going to cover some highlights, including a pretty epic Lisa Blatt Elizabeth Prelogar face-off about the Rooker Feldman doctrine, which is basically a Leah Litman bat signal slash fever dream. And at the end of today’s show, we’re going to bring you a conversation with my Penn colleague, Shaun Ossei-Owusu, about his fantastic new book, Law on Trial, so stay tuned for that.

Leah Litman I’m hoping that the combination of those two things, the Rooker Feldman bass-hop and Shaun’s book will raise my energy levels because before we started recording, I was telling Michael, I’ve been listening to Noah Khan’s album all morning and it’s very sad girl spring music. And so I’m worried to kind of depress the effect, but maybe those two will bring it back up. We’ll see.

Kate Shaw I’m actually recording on Friday, and I’m going to see Florence and the Machine at Barclays in downtown Brooklyn tonight with my 14-year-old, and so I have had a very different energy in my ears all morning, so I’m gonna try to, like, send some of that through Al Gore’s internet to your ears, Leah.

Leah Litman Great, love it. As we noted, we will start with the legal news. And we have some news on tariffs, where the refund system is up and running after the administration’s loss in the tariffs case at the Supreme Court. And Donald Trump is, as always, just posting through it. He started off with a rant about the, quote, Democrat justices who stick together like glue and never wander from the warped and perverse policies, ideas, and cases put before them. He must have missed Justice Kagan and Sotomayor’s concurrence in Childs v. Salazar, the conversion therapy band case. But.

Kate Shaw I guess he’s not reading the concurrences that closely, Leo.

Leah Litman No.

Kate Shaw So, you know, he launched this broadside against the Democrat justices sort of en masse, but of course reserved special insult for the only black woman justice on the court, insulting her as you might expect from him at this point in time as a quote low IQ person who has just to state the obvious managed to reason circles and laps around his nominees, his liquor cabinet and everyone else, but whatever. He then, that is Trump in his posting through it, shifted to bitching both about the I hope you enjoyed this video, and I’ll see you in the next one. Completely ridiculous tariff decision, which resulted, he says, in a 159 billion dollar pile of cash refunds to people who have been ripping off our country for years. Note that the refunds go to American companies, and you would think Trump, if he really thought it through, would love something that steals from American consumers and gives back to companies and corporations, but I’m not sure he’s actually tracking all of it.

Leah Litman No, he also has some ire reserved for the quote nasty one sided questions on the country destroying subject of birthright citizenship apparently hasn’t gotten over that and the post closed with how quote the radical left democrats don’t need to pack the court since it’s already packed which if you pause to think about it is true that it’s already packed just not in the way he’s suggesting

Kate Shaw But there is like a kernel of an insight there.

Leah Litman Kernel of truth. So close.

Kate Shaw Yeah. Okay. So that was last week, but now we need to turn to something that we previewed up top, which is that last week we learned that the administration is bringing charges against the Southern Poverty Law Center. So DOJ announced late in the week that it had secured an indictment against the SPLC, which is a non-profit civil rights organization founded in the 1970s. SPLC is based in Alabama and is probably best known for monitoring and tracking and litigating against white supremacist organizations. Indeed, their mission is focused on dismantling white supremacy and advancing human rights.

Leah Litman Obviously that raises a red flag, white flag or the administration.

Kate Shaw So you think about it like, this is of course the group that DOJ targets in exactly the way that it has. And we should say that this organization is far from perfect. Its founder resigned amidst allegations of misconduct. There have been reports about toxic workplace culture. But none of that is what DOJ is concerned with. The indictment that they brought arises out of an old SPLC program known as Clanwatch, which, as the name suggests, was aimed at dismantling the Ku Klux Klan, including through a system of informants.

Leah Litman And it’s that system, which is part of a program, that no longer exists that is the basis for the indictment. The indictment accuses the organization of wire fraud because it says the organization’s donors supposedly weren’t aware of the program. It’s totally unclear how that could be true. Even Klan groups issued public statements in Klan publications about Klan Watch, which they obviously hated and wanted to take down. The indictment also accuses the Center of making false statements to a federally insured bank when SPLC set up bank accounts with a dummy company to pay its informants. Apparently, DOJ might think it’s illegal to protect the cover and identity of informants who were infiltrating and taking down the Klan. That is the actual basis of one of the charges, conspiracy to commit money laundering, which arises out of their efforts to protect their sources in the field.

Kate Shaw Even supporters of the indictment actually seemed to recognize that there is no there there, so. Which they love! I mean, like, so fascism philosopher-in-chief slash, like bro Curtis Yarvin had this incredibly revealing post on X about the charges. He says, quote, what’s cool is that I, sorry I have to read this. Losing it. He says, verbatim, what’s cool is that I don’t really see a strong legal case that the SPLC shouldn’t be able to run these kinds of wacky black ops. That means DOJ is prosecuting the SPL C just because it kind of can. If this would be an unusual sign of finally getting it. So the fact that there is no there there, that these are literally trumped up charges is for some a cause for celebration, which is just like how sick a lot of minds in this timeline are. So Todd Blanch, acting attorney general and oppressor, suggested that SPLC was manufacturing extremism. I gather the suggestion is that the Klan wouldn’t exist without the SPLC and this network of informants. And regardless of what was said at the podium, the indictment itself completely refutes this claim. It describes how informants stole Klan documents and things like that. And I mean, I guess maybe we should just end by saying, like, in an era of incredible lows for DOJ, this is among the lowest. DOJ was created in part to help prosecute the Klan. DOJ is now prosecuting entities for acts they took to help take down the KLAN.

Leah Litman Yeah, I mean, Clan Watch, as we’ve said, was started to identify and take down the clan, which of course prompted virulent opposition from, you guessed it, the clan. And that is the fight DOJ is taking up when DOJ, of course, was partially created and fleshed out to go after the clan and for more on this, we’d recommend Chris Guidener’s post at Lawdork. It’s titled SPLC Indictment, the Clan History behind it, and the ignominy of Todd Blanche.

Kate Shaw Okay, we should also mention actually a pretty different piece of news out of DOJ, and that is that at the end of the week, we got news that this same DOJ had actually indicted a soldier for using classified information to make bets on the prediction market, polymarket. This soldier was actually involved, according to the indictment, in the operation to capture Venezuelan President Nicolas Maduro and then use the information that he got by virtue of being part of that planning to make bets on polymarket and enrich himself to the tune of $400,000. So scandalous, but not shocking. We all had a very strong sense that lots of administration insiders have been trading on and enriching themselves on inside information of exactly this sort. But what was really striking was that the indictment was brought at all. And it was interesting that it was brought in SDNY here in New York, where as our host Ian Bassin noted a few weeks back There are some signs that prosecutors may be seeing the writing on the wall when it comes to Maine justice and maybe showing a little spine and independence. So I think it will be really revealing to see if or when the White House and Maine justice get involved in potentially even try to override or otherwise interfere with this prosecution. But for the moment, at least, it suggests like there is a tiny bit of like real law enforcement still going on inside at least the Southern District of New York.

Melissa Murray [AD]

Kate Shaw Now we got to talk more about other actions out of this liquor cabinet, and that includes Cash Patel suing the Atlantic magazine. So listeners, this president’s, I’ll call it innovative, use of existing legal processes together with his creation of his own shadow legal processes is actually something that the three of us, Celia and Melissa and I have written about in a Law Review article that’s forthcoming in the Northwestern University Law Review. So we will get that draft posted online sometime soon. But for now, we will just sort of tease some of its contents by noting that the president’s underlings seem to be taking a page from his book in responding to reporting that paints them in an unfavorable light by filing lawsuits seeking just preposterous sums of money. So in this case, FBI Director Cash Patel has filed a $250 million lawsuit against the Atlantic for a piece describing drinking and other behavior that would be concerning for any government official, but in particular for someone in charge of an agency as large and powerful and national security essential as the FBI.

Leah Litman Tidbits from the Atlantic reporting include nine people describing an incident when Patel couldn’t get into his government email and started to freak out about the fact that the White House may have fired him when really he just messed up his password or something. Notably, his lawsuit makes a different claim about this supposed incident than Patel himself has made from the podium, including last week. So the lawsuit says, yes, Patel could not get into this email, but it was an IT thing, not a blotto moment. Whereas on the podium, Patel said this.

Clip I was never locked out of my systems. Anybody who says it.

Show Intro The lawsuit says the opposite, the lawsuit can tell you. Anyone that says

Clip Anyone that says the opposite

Show Intro Is lying. Thank you

Leah Litman At the end of that clip was, yes, Todd Blanche calling the press extraordinarily rude. And sir, if you think that’s rude, maybe this podcast should come with a trigger warning.

Kate Shaw Like today and in general.

Leah Litman Alright!

Kate Shaw Um, so the Atlantic article, just in case you missed it, also describes what it sort of delicately refers to as conspicuous inebriation, including at a Vegas establishment, less delicately titled The Poodle Club, also described a request by Patel Security Detail for breaching equipment. I gather so they could break down doors if needed to get him up. Since they had had so much trouble doing that because he was so fast asleep after nights at places like the Poodle Club. Anyway, read the article if you haven’t. If it is as well-sourced as it sounds like it is, Patel’s typo-laden lawsuit, the complaint has like a bunch of embarrassing errors, that suit will get tossed. But the point of this kind of litigation, this is something that we talk about in the article, is to scare the press off of critical reporting of just this sort, and we cannot let it work. And in a related vein, The Times has now reported that the FBI supposedly investigated a New York Times reporter after she wrote an article describing how the federal government was using government resources to shepherd around Patel’s girlfriend.

Leah Litman Next up in news, there was a lot going on on the orders list from the Supreme Court that they issued last Monday. So there was huge grant of certiorari in yet another case involving religious objections to LGBT equality. This case won’t be heard until next term, but we wanted to put it on your radar. The case, St. Mary Catholic Parish v. Roy, involves Colorado’s universal preschool program, under which the state of Colorado offers free preschool to all people under four. The program includes public and private providers, including faith-based providers, but all providers have to give children an equal opportunity to enroll regardless if the children or family’s religious affiliation, race, sexual orientation, gender identity, housing status, and other traits. And because this is a year starting in 20, and because Colorado is once again trying to do non-discrimination law to ensure equality and dignity within its borders, there are some objections.

Kate Shaw Always with the objections, this time from the petitioner who is a Catholic preschool that wants to keep receiving public funds while also turning away kids based on their parents’ gender identity or sexual orientation, the school loss below, and their petition which the court has now granted and as Leah mentioned will be heard next term, makes all kinds of claims about the many other exemptions that Colorado provides. The Colorado brief says that’s just not accurate and This kind of heated dispute at the sort of cert stage about the basic facts of the case really calls to mind a number of other recent cases on related topics where the facts were also really contested in ways that is just, they just haven’t historically been when it comes to cases that make it to the Supreme Court. So I’m thinking in particular about the wedding website, designer or would-be designer in 303 Creative and also the praying coach in Kennedy versus Bremerton. So the question of what the policy actually does, how it works is actually the first question on which the court granted cert. And it also granted a second question about whether the program violated the First Amendment. But it did not grant a third question about whether Employment Division versus Smith should be overruled. That’s the case, it says. You can’t get an exception from a neutral and generally applicable law just because you have religious objections to or are burdened by the law. So for now, Smith may live, at least in name, to fight another day. Maybe because it was written by the great man himself, yes, Antonin Scalia, a fact that does seem to influence the court to this day.

Leah Litman That orders list also contained an odd per curiam order in a case DC versus RW, where the Supreme Court appeared to just disagree with a DC court’s resolution of a Fourth Amendment reasonableness question. The per curium order walks through the reasons the DC Court of Appeals gave for concluding that a stop was not reasonable, and basically just decides, we disagree that court was mistaken. This really felt like what the clerks used to call and I suspect still call. An instance of fact-bound error correction, which is usually a way of saying a case is not a good candidate for a grant of certiorari, but here, for reasons, the court felt differently. Justice Jackson’s solo dissent said, quote, if the court’s decision to intervene reflects disapproval of the DCCA’s assessment of which particular facts to weigh and to what extent, I cannot fathom why that kind of fact bound determination warranted correction by this court, end quote. Girl, same. Justice Sotomayor also would have denied the petition, but did not join Justice Jackson.

Kate Shaw Okay, let’s move on to some news from the lower courts. First up, any guesses as to which federal appeals court says 10 commandments displays in classrooms are A-okay.

Leah Litman Um, let me think the DC circuit.

Kate Shaw That’s a joke. No, the fifth. Of course it was the fifth, eighth would have been, I wouldn’t have accepted it as an alternative correct answer, but it would have been plausible, but no, fifth it is, and if that’s what you guessed, listeners, we’re glad you’re paying attention. So the Fifth Circuit by a nine to eight vote, so that’s an on-bank Fifth Circuit, upheld a Texas law that requires Texas classrooms to display the Ten Commandments in conspicuous locations with large typeface in each classroom. The opinion by Stanford stormtrooper Stuart Kyle Duncan basically says the Establishment Clause only forbids actual state religions. And it also says that everyone knows the Free Exercise Clause, like the other religion clause of the First Amendment, forbids, quote, oppressive curriculum like storybooks celebrating diversity and inclusiveness, but not massive scripture on display in all classrooms at times. Yeah, I mean, the TLDR is that storybooks with LGBT characters or themes are mean, like, really mean. But reciting sections of the Bible is just reciting the good word. There isn’t even any effort to make any kind of principle of distinction between the two, as far as I can tell. Judge Ho concurs to say, our founders didn’t just permit religion in education, they presumed that there would be religion in eduction. And this case is, I think, pretty clearly headed straight to SCOTUS.

Leah Litman I’ve got some additional things to say about this opinion, just to underscore how ludicrous it is. I mean, this is out there even for the Fifth Circuit. So the Fifth circuit did something kind of wild with how history and tradition works in the Second Amendment in ways that just seem totally gerrymandered to reach the court’s preferred outcome. So in the second amendment, the Supreme Court has said that in order to uphold a law, the government has to show. That a modern-day firearm regulation is similar to a historical firearm regulation. Here, the Fifth Circuit says that in order to strike down a law, plaintiffs who are challenging a law have to show the law is similar to a prior law that was treated as unconstitutional. So it puts the burden in a different place because gun control bad and religion and public office good. Just no effort to explain how these things all make sense It also, I think, adopts a pretty different take on religious motives from what the Supreme Court has done in the religious exemption cases. So the Fifth Circuit seems to rest on something like a claim that when the government mandates posting scripture, who is to say whether the government’s motives might be religious? And in any case, why do their motives even matter? But when individuals seek exemptions from civil rights laws, like those individuals say, I don’t want to comply. Non-discrimination protections, protecting the LGBT community because it’s opposed to my religious views. Those individuals can just declare their conduct to be religious in nature, and that motive has constitutional significance and transforms their actions into religious practices. The opinion is full of wild quotes. This one, just to give you a flavor, said, quote, what the founding generation understood as an establishment of religion is a legal question to be decided by a court, not a fact question. To be decided by experts, no matter how credentialed. To be sure, courts must make a determined effort to grasp the relevant history. They do so by consulting articles, books, and historical sources, and bringing their own independent judgment to bear on them, not by appointing an expert whose findings might be insulated by review on appeal. I mean, basically, they are just saying, judges’ hot takes, those are the law. Not actual history, no history, just vibes. This is straight up vibe maxing.

Kate Shaw It is also just like, it’s a totally different topic, but it somehow also just feels like the major questions doctrine to me, which is just like literally sort of a founding credo of this podcast, No Law, Just Vibes, and like here they are now just copying to it, where for a while they were making it a little bit hard to pin them down. You had to sort of like pull threads together. No longer. No. They’re just owning it. Yeah. Okay. So that’s from the opinion itself. But Leah, you have some theories that I feel like. Let’s share with our listeners about- Okay, so put on your-

Leah Litman Okay, so put on your tinfoil hats and hear me out. Okay, So this Texas 10 Commandments case was consolidated with another case challenging a similar Louisiana law. And the cases were argued together back in January. You can hear the oral argument announcement for both of the cases, which were again were consolidated here.

Show Intro This afternoon, we have two cases consolidated for purposes of moral argument only. Case number 2024, 30706, Darcy Roke et al. Versus Kate Brumley et al., and case number 25, 50695, Mara Nathan et al, versus the Alamo Heights Independent School District Oh

Leah Litman Now, the Louisiana case was released in February, and that case was decided on different grounds, rightness grounds. So the court said it couldn’t actually resolve whether the law was constitutional at this point in the litigation because it wasn’t clear how the law would be applied. That case, also decided by an en banc court, i.e. Full court, was actually decided by a different group of judges. So in addition to the active judges on the Fifth Circuit, The en banc court in the Louisiana case included a senior judge, Judge Dennis, who had participated in the panel decision on that Louisiana case. And he dissented from the Fifth Circuit’s decision dismissing the challenge to the Louisiana law. Now with Judge Dennis on the court, it was an 18-judge court. The Texas case, as you noted up top, that was just released, it was released after Judge Dennis took inactive status. It was therefore decided by 17 judges and it split nine to eight. So had Judge Dennis participated, it could have been an affirmance by an equally divided court, which has the effect of leaving in place the panel opinion, the three-judge decision striking down the Texas law. Now, it’s not clear Judge Dennis would have, could have, or should have participated in the Texas case. Had he still been senior rather than being inactive, he was, after all, on the panel in the Louisiana case, not the Texas one. And by convention, senior judges participate in en banc full court proceedings when they were on the panel, but not otherwise. On the other hand, these cases had been consolidated for oral argument. Now it’s possible this distinction between being consolidated for purposes of oral argument versus a decision is what the chief judge was alluding to when she announced in the announcement of the cases that they were consolidated only for purposes of argument. But still, you know, I have to wonder, did they delay releasing this case until he took in active status.

Kate Shaw So I had tracked none of this. It seems very plausible to me. And honestly, this kind of analysis is why people structure their Mondays around new episodes, Leah. So that very much seems plausible to be. All right, another piece of very different state court news, since we’ve got a lot of bad news in already. We did get a sort of glimmer of good news out of Pennsylvania last week, where the state’s Commonwealth Court ruled that a ban on public funding for abortion violated the state constitution’s equal rights amendment. Terrific opinion, it could still go to the State Supreme Court, but huge and really important ruling in a lawsuit that’s been ongoing for quite some time. So congrats to everybody who worked very, very hard on that case.

Leah Litman In other happy news, happy, but potentially for the courts, wanted to cover, right, but courts, developments in redistricting in Virginia. So the voters of Virginia approved a redistricting plan that would gerrymander the state’s congressional districts in ways that advantage the Democratic Party and create more seats advantageous for the Democratic party in order to counterbalance the partisan gerrymandering war launched by Texas and the president to. Retain control of the House in the Republican Party’s hands. Republicans are, of course, apoplectic about Virginia, insisting that, obviously, this gerrymander is unfair and illegal, to which we have this to say. Wow, wow, wow.

Kate Shaw And yes, that was AOC responding to Republican complaints about this gerrymander and Democratic gerrymanders in general. And while this, the Virginia referendum, was a response to the Texas gerrymanter, it is really important to note the way these new maps have come about. So in California and Virginia, voters were the ones asked to decide about whether to implement new maps. By contrast, it was the already gerrymannered Texas state legislature that rammed through their gerrymenter. Even if you’re interested in posturing about the undemocratic quality of these gerrymanders, you cannot be taken seriously if you don’t at least acknowledge that it was a democratic process in the two states that resulted in these democratic advantageing maps.

Leah Litman Not a democratic process if Republicans lose, Kate.

Kate Shaw Thank you for the reminder. I keep forgetting and you know, that’s on me.

Leah Litman So as Kate and I said, but courts. And after this Virginia referendum passed, of course, a Republican appointed judge purported to invalidate the voter passed gerrymander in Virginia and throw out all the votes. Now the state’s attorney general is appealing that ruling. And indeed, the Virginia Supreme Court will hear oral argument in this case about whether to throw out the referendum today, the day this episode comes out.

Kate Shaw All right, final piece of news before we get to SCOTUS recaps, we had a…

Leah Litman More liquor cabinet, more liquor cabinet news. That’s the phrase.

Kate Shaw Okay, sorry, you’re right. Another piece of news, another bottle pulled off the shelf in the liquor cabinet, which is that another cabinet secretary, to really mix metaphors, bit the dust last week. So yes, Labor Secretary Lori Chavez-Duremer resigned amidst the ethics scandals and investigations that we talked about last week kind of swirling around her. I have zero sympathy for her. But I have to say I don’t love that of all of the awful people in this liquor cabinet. It is so far. Only the awful women actually being given the boot, so, you know, I guess justice for the remaining bottles on the shelf. Now do them.

Leah Litman Yes.

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Leah Litman We’ll turn now to recapping the oral arguments the Supreme Court heard last week. They heard a few. Two of them were in StreetPatch versus SEC and FCC versus AT&T. Both are about the respective agency’s authority to seek particular remedies. So StreetPetch versus SEC is about whether the SEC, the Securities and Exchange Commission, can seek what’s called disgorgement, i.e. Return of a company’s profits, without showing that a company investors suffered economic harm. And the FCC versus AT&T case is about whether the FCC can, within the agency, make some sort of determination that a company is in violation of federal law in ways that would warrant civil penalties, or whether instead it has to do that in a federal court and with a jury. In the Sripach case, concerning the SEC, The justices seemed interested in whether discouragement was still an equitable remedy under the statute and whether these limits that the petitioner’s repitch was seeking on discouragement would make discouragement duplicative with compensatory damages as a remedy. Based on the argument, it sounded to me like the Democratic appointees, probably also Justices Thomas and Barrett, were skeptical of the no-discouragement argument. The federal government received substantially fewer questions. So my guess is the court will say the SEC can seek discouragement without showing economic harm to investors.

Kate Shaw And then FCC versus AT&T is the case about the FCC’s ability to conduct an adjudication within the agency about whether a company is in violation of the law in ways that would carry fines or penalties. The government is asking the court to construe the statute to mean that FCC determinations about liability don’t obligate the party found to be in violation to the law to actually pay the amount of the fines. Instead, the FCC says the liability finding isn’t final until it is enforced in federal You know, either by the federal government seeking to enforce it, or when a company files a declaratory judgment that the liability finding doesn’t carry a fine, thereto the court can provide de novo review. AT&T says this would still put companies in a difficult position, kind of like an unconstitutional condition on their right to a jury trial, by asking them to forego appellate review of the order in favor of district court litigation. There is some dispute about the extent of deference. Courts owe the agency determinations, perhaps about the facts. And then also whether any delay between the agency adjudication and a federal court case might harm the company somehow.

Leah Litman Here, and this might be a theme of last week, it seems like the federal government, I mean, it doesn’t seem like they’ve definitely changed their position throughout the litigation from saying that the company had to pay now to saying the company didn’t have to pay until there was an enforcement order or proceeding in federal court. So there’s some question about whether or how that will affect the resolution of this case and a question about what that might mean about the Seventh Amendment in future cases. It’s just kind of a mess. And now… My energy booster, TM versus University of Maryland Medical Systems Corporation, the Rooker-Feldman case.

Kate Shaw I mean, if you have to suffer through an on-bank Texas Ten Commandments case, like, what you get…

Leah Litman I listen to it the same day as I read that Fifth Circuit opinion and the same day, my poor doggy had to have dental surgery. Oh, poor thing. I know she’s still out of it and it feels so bad for her. But anyways, I was listening to this in order to power through. Yeah. OK, so this is a super fascinating case and it was a super fascinating argument about a doctor known as Rooker Feldman. That is the doctrine that says federal courts do not have what’s called appellate jurisdiction, the jurisdiction to review on appeal certain state court judgments, such that the federal courts have to dismiss any effort to bring a case to them that invites appellant review of a state court decision. As we noted last episode, the Supreme Court does not like Rooker-Feldman. The doctrine is a mess. And the last Rook or Feldman decision The Supreme Court had attempted to curb how lower federal courts were relying on the doctrine. So in a lot of ways, this case pits the Supreme Court’s antipathy for Rooker Feldman and the desire to limit federal court’s invocation of Rookier Feldman against what seems like a somewhat arbitrary limitation on the doctorate. So the petitioner in this case is arguing that Rookers Feldman applies only where the state court decision that a party is seeking review of is a decision from the state’s highest court. And that the doctrine doesn’t prohibit federal courts from entertaining collateral attacks to state court decisions from state trial or intermediate appellate courts? That’s a clear enough line, but the question is, why would that be the line? Why allow federal court review of intermediate state court decisions or state trial court decisions but not state Supreme Court decisions? Now, there are potential answers to that question, but it did seem like that was really what some of the justices were struggling with.

Kate Shaw Yeah, and sort of even if Rooker-Feldman doesn’t require federal courts to dismiss collateral attacks on state court judgments, there are other doctrines that might prohibit federal courts from reaching the merits, like abstention doctrines, that require federal courts to pause their proceedings for ongoing state proceedings, or claim preclusion, which doesn’t allow parties to like endlessly litigate issues or claims resolved by prior judgments. This sort of range of other tools is something that Elizabeth Prelogar, who is before the court. And it was glorious. I didn’t honestly realize how much I missed her until she returned. But that’s something that she repeatedly emphasized. And, you know, in part because, as Leah was just describing, the case kind of asked the court to adopt a limitation on Rooker Feldman and maybe like a counterintuitive one, there were questions about whether the court should just do the damn thing and overrule Rooker rather than trying to gerrymander like a somewhat puzzling limitation on it. And when asked whether just the question in the case encompassed whether the court should overrule Rooker. Prelogar said, basically, I mean, you did it in Dobbs and Citizens United, which like, it’s hard to argue with.

Leah Litman Yeah, I know.

Kate Shaw You sort of felt a tiny bit of the Dobbs pain, like she’s so poised always, but she did live through that and you heard a tiny bit of it, I think, in her answer. It turns out, guys, you can actually overrule cases.

Leah Litman I know. It was a way of just kind of like, I don’t know, I felt shame. I felt shame on behalf of the court. I feel shame on the behalf of the country just like having to kind of invoke that case. Yeah. Just blah. But this is our timeline. So when asked about whether the court could, should overrule Rooker in this case, the advocate on the other side, Lisa Blatt, had this to say. So you don’t even have any state in front of here.

Clip To, so no, you’re not going to overrule Rooker. I mean, I’m sorry, I don’t think you’re going to do that.

Clip Ha ha ha ha! Not in an April case, not happening.

Clip Don’t dare my colleagues.

Clip Okay.

Clip I’m sorry, a little too much. I’m all yours.

Leah Litman Um, Lisa’s gonna Lisa and I

Kate Shaw Even for her that was pretty epic. What was the a little too much like my answer me like exactly I was so curious what she meant. I know friends with a little I know

Leah Litman Um, there was a weird moment in the audio during the argument, which again, I was listening to as a coping mechanism. And so I noticed that I wanted to play here for our listeners.

Clip One more question. As I read the question presented here, it does not enable us to look at overruling Rooker-Feldman.

Leah Litman There’s an audible sigh as I read the and I just want to know who the sigh came from because you know Justice Jackson was speaking she sits by Justice Kavanaugh but it didn’t sound like Justice Kavanagh’s nasally phlegmy breathing right exactly um so maybe it was Justice Thomas and for whatever reason I also wanted to invite listeners to compare that sigh with the sounds of a member of the liquor cabinet. You know, Secretary Bear carcass whale juice raccoon penis breathing during his Senate testimony, so we’ll play that clip here.

Clip Done among the many that you’ve described in your testimony. In that context, in your testimony, you identified nutrition as a bedrock of health and one of the primary lovers for treating and preventing chronic disease.

Leah Litman And I’m just sorry I did that to your ear holes listeners, but.

Kate Shaw I’m glad nobody did that while Justice Jackson was talking. Right. Small, small busings. I guess so. So let’s briefly touch on the other cases the court heard last week. It heard the important immigration and entry case Blanche vs. Lau, which is about whether and under what circumstances immigration officers can parole lawful permanent residents into the country rather than just admitting them. Lawful permanent residence or green card holders are people who have already cleared the most demanding standards in immigration law, save for becoming a citizen. And federal law says that green card holders can only be excluded if one of six circumstances is true. That includes if they committed certain crimes. So the question here is when and how the determination that they’ve committed those crimes gets made.

Leah Litman So the federal government, it turns out here too, has just said a bunch of things in this case and might be still saying a bunch of different things, but they seem to be taking the position that officers at the border can basically say, I’m not sure that this LPR has established that they can’t be excluded, so I’m paroling them rather than admitting them. And then whether they are, in fact, excludable or inadmissible will be determined at some point later by an immigration judge in more formal proceedings. But in the interim, they will have this uncertain legal status where maybe they can’t work and they don’t have their green card, which the government is apparently taking away from them when it makes this parole decision. Mr. Lau, by contrast, says, no, if an immigration officer at the border will not admit an LPR, the officer needs to establish by clearance and evidence that one of the exceptions to admission applies. Mr. Lau argued that it doesn’t make sense to structure a subsequent immigration proceeding around whether the initial immigration officer had clear and convincing evidence that the legal permanent resident was excludable, but based on evidence that might have arisen since that determination was made, but asking about it at the time of the determination. So having listened to this, I thought that the federal government got more questions than did the lawyer for the respondent, which is encouraging. And the respondent’s lawyer did a good job suggesting that the federal government’s position in this case has been all over the map, vacillating between this case being about when the determination gets made to what standard governs the determination, such that maybe the Supreme Court should dismiss the case as improvidently granted and not decide it. Maybe wonder if the president’s approach to Iran is infiltrating the DOJ’s approach to all of its cases, just totally all over the map and conflicting things.

Kate Shaw I think that’s an accurate characterization of this administration writ large. So yeah, that tracks. Okay. But back to the argument, the federal government kind of ominously suggested among the sort of many arguments that it was making that Lee was just mentioning, and Barrett actually kind of picked up on this idea that if the federal government can’t parole lawful permanent residents into this country, then maybe they could just detain them and begin removal proceedings. Fortunately, the Democratic appointees were all over this case, coming at it just from a bunch of different angles. KBJ focused on the real burdens imposed on LPRs who were paroled. Kagan on the kind of conceptual oddity of saying this later determination is about whether the determination made sense at an earlier point in time, but based on subsequent evidence. And so de Maillore was really locked in on where the government got this authority to put lawful permanent residents in a liminal state.

Leah Litman And Justice Sotomayor’s efforts to question the government’s lawyer generated what was for me. Maybe one of the most cringe-worthy exchanges, which is saying a lot given how much right-wingers blatantly disrespect Justices Sotomayer and Jackson in particular. No points for wondering why that might be. So just brace yourselves for this exchange. I’m not at the moment.

Clip He made the decision at the moment. He made a decision the border. Did he have enough proof the border officer? Did he had enough proof at that moment forget whom for him? Yes, the border Officer had enough prove for himself to do what parole him or to exclude him I’m not sure what you mean by exclude. He could have just said, you’re not admissible, bye. Yes, but then that would require- And not parole him. That would require initiating removal proceedings and as I said earlier- So at that moment, if there was an IJ there, sitting there, he could not have won that removal, correct? Probably not. Okay. Because we have a clear and convincing- I’m sorry, maybe, would you like to finish that answer? Thank you.

Leah Litman I just wanted to crawl under my desk, and oof. There was one other moment that I’m not going to play a clip of, but reminded me of your colleague Shaun’s book that we talk about later in the episode. And that was when Justice Jackson asked the lawyer for the federal government about the risk that the government might exercise this option to parole lawful permanent residents, even if the officer might not think the lawful, permanent resident is actually excludable or inadmissible. And that they’d parole basically to make the life of the LPR difficult and see whether they would self-deport. To which the lawyer for the federal government said, almost with some irritation that the question had even been asked, we don’t and can’t and shouldn’t presume bad faith of the entire executive branch. Which, OK, sounds fine enough in the abstract, except we know this is a thing that has happened. Rumeysa Ozturk was one of the people detained in the administrations. Mass censorship and terror campaign directed at the people who criticize the United States and Israel’s actions in Gaza and she chose to self-deport because of what she described as vicious harassment targeting her and abuse and she had asthma attacks in detention and whatnot.

Kate Shaw And can I just say this is a point that you’ve made before, Lee, and I think it’s really wise. Often the meanest and most disrespectful thing you can do is just kind of accurately and dispassionately describe the conduct of this administration and the sort of umbrage taken at this kind of suggestion, I think sort of called to mind for me that observation.

Leah Litman Yeah, and really, what a week to talk about Sean’s fabulous book, Law and Trial, which is about, as we’ll get to, how the legal profession cements inequality and hierarchy. Because also this past week, we got news that the Tennessee attorney general effectively blocked the upcoming trial in the case that was brought by women who were harmed by the state’s abortion ban and who were set to testify about the ways in which the abortion ban harmed them. This case was similar to the one out of Texas where women did testify. Some became physically ill, describing what the abortion bans had put them through. This was also a week in which there was just a remarkable effort to same wash the shadow docket actions that had been described by The New York Times last weekend, the Supreme Court’s actions in the Clean Power Plan case, with just legalisms and what aboutisms that really, when you kind of boil down and drill down, they just undersell or obfuscate what a big deal. It was like, sure, maybe there’s some, like, formalistic distinction, like here, there, or that, but like, come on, get real.

Kate Shaw Just felt there was such an effort, I think, to both kind of minimize the reporting, excuse the conduct on display. And I mean, I mean I think that we’ll say this probably in our favorite things, but just God bless Steve Flodick for sort of single-handedly being out there kind of like responding to all of those efforts. So, okay. Let us now to the arguments that the court will hear this coming week. Um, and there are some big arguments, um, I think we’re just going to mostly cover a pair of cases the court will hear on Wednesday, which is the last day of the court’s regular session for this term. Um, that’s a pair cases, Mullen versus Doe and Trump versus Piat, um about TPS or temporary protected status. TPS, as we have discussed before, is an executive branch designation that entails a determination that conditions in a particular country are so dangerous, think war or natural disaster, that it is unsafe for individuals to be sent there. TPS gives individuals from affected countries protection from deportation and the ability to work and travel while they are here, but it is not in itself a pathway to permanent status. Both Haiti and Syria, as well as a number of other countries, are under a TPS designation. So back in September, speaking of, you know, liquor cabinet, then DHS secretary Nome announced that the administration was ending the TPS design for Syria. And then in December, she made the same announcement for Haiti. The TPS recipients filed suit challenging those decisions to end TPS. As to the Haiti decision, Judge Ana Reyes in the District of Columbia, the District Court in DC, found the administration action was likely unlawful both because the decision appeared predicated on hostility to non-white immigrants and because it did not satisfy the reasoned decision-making requirement of the Administrative Procedure Act or APA. The opinion quotes at length from some truly vile statements by administration officials including referring to immigrants as killers, leeches, or entitlement junkies. The opinion also notes, quite pointedly, that the plaintiffs in the case include a neuroscientist researching Alzheimer’s disease, a software engineer at a national bank, and other individuals just far more accomplished, sort of, to the person than anyone in Trump’s liquor cabinet. A group of plaintiffs also challenge the Syria TPS cancelation. In that case, the government produced the administrative record And it contains a one-sentence email consultation between DHS and the State Department regarding country conditions in Syria.

Leah Litman I was an email, not a signal chat.

Kate Shaw I guess, again, sort of more kind of small blessings. But the lower court in that case, you know, in part because of the thinness of the consultation, preliminarily blocked the cancelation, which it determined would irreparably harm the plaintiffs. Like the plaintiff’s in the Haiti case, highly qualified doctors, journalists, students, teachers, researchers, business owners, caretakers, and others who have been thoroughly vetted as part of this TPS process and who would be in real danger of being killed if forced to return to Syria.

Leah Litman These cases are emergency applications. That is how the kind of posture arose. And the Supreme Court granted what’s called cert before judgment, hearing the case before a judgment in the Court of Appeals, and set the cases for oral argument. So all that is before the court technically is whether the lower court’s preliminary grants of relief should be stayed. There isn’t even a written lower court opinion in the Syria case. The federal government argues both that the secretary has unreviewable discretion to make these determinations and that the judicial decisions below were wrong. It also seems to kind of suggest that the Supreme Court’s earlier order is staying lower court rulings in cases involving the termination of the Venezuela TPS designation control here, or at least that the lower courts were wrong and not putting more stock in their non-existent reasoning. Yeah, a couple things to note about. Posture and just these cases. First, the federal government’s position that courts lack jurisdiction to review these determinations would render these TPS decisions, which affect more than a million people, unreviewable. It would make the Temporary Protected Status Statute, which contains specific criteria the government is supposed to find satisfied, effectively advisory. And it would allow what advocates say would be the largest D documentation in modern United States history. Now, maybe… There is a potentially good sign in that the Supreme Court did not just grant the stays the federal government asked for, as it had in the case of Venezuela’s TPS cancelation. In the New York Times column, I think last week or maybe the week before, Linda Greenhouse read that move as a strong signal that the supreme court plans to rule against the administration in these cases. I am less sure. I think it could be attributable to the persistent criticism of folks like our friend Steve Vladeck, who have kept the spotlight and the pressure on the justices and kind of shamed them into not consigning hundreds of thousands of individuals living and working and contributing here to an uncertain fate via unreasoned orders. But that doesn’t mean they won’t ultimately get to that conclusion.

Kate Shaw Yeah, I very much hope Linda is right and she is not like just a starry-eyed optimist. And so like I do put a lot of stock in that, but I just don’t have the kind of confidence in that prediction that was on display in her column. But I do think that the administration’s conduct was outrageous. If the court takes at all seriously its decisions in the census citizenship case and the DACA rescission case in which it ruled against the first Trump administration’s completely unreasoned and pretextual moves in other domains. These cases should be no-brainers, but, you know, that was a different court, and I’m just less confident that the court is gonna kind of extend the reasoning of those cases, which is what Linda thinks should happen, and that’s right, it should, but I don’t know that it will. But anyway, it’s gonna be an important argument to watch, and the court will also hear arguments in an important preemption case involving the pesticide roundup in a patent case, in a case about the Torture Victim Protection Act, an alien tort statute. And then finally, in an important Fourth Amendment case, Chattery versus United States about what are called geofence warrants. And if that is not a term that you are familiar with, same. I gather it’s a relatively novel kind of warrant and it raises questions under the Fourth Amendment. So Fourth Amendment stands, that will be an interesting argument and we will bring you a recap after the case is argued.

Leah Litman So we will briefly cover the opinions that the Supreme Court issued last week. First up is Hensley versus Flora Corporation. This was the torts case that was brought by people who were injured by a suicide bomber attack at a US base in Afghanistan. It was perpetrated by someone who was hired by the military contractor, Flora corporation. And the question in the case was whether injured individuals or their estates can sue the military contract who hired the individual. Or whether the state law tort suit is foreclosed by some federal law, maybe a federal statute, maybe the Constitution, maybe the federal law that shall not speak its name, that would be federal common law. Federal common law refers to the body of federal law that is fashioned and made by judges. It doesn’t derive from statutes or the Constitution.

Kate Shaw So there’s a famous Scalia opinion, Boyle vs. United Technologies, that said that federal common law barred a state tort suit filed against a military contractor that alleged the military contractor’s design of an item was defective, even though the design accorded with the terms of the federal contract. Now federal common law is not super popular among the legal formalist, Republican appointee crowds, but twist, the great man himself wrote the opinion in Boyle, which creates some cross-pressure. And this tension might have produced the opinion that we got in Hensley, which was authored by Thomas, joined by Gorsuch and Barrett, relies on Boyle to say the state tort suit isn’t barred. But the Thomas opinion doesn’t actually utter the phrase federal common law, As if they want to basically say we’re relying on Justice Scalia, but not on federal common law. Another way to think of it is just literally the man himself is the brooding omnipresence in the sky.

Leah Litman That’s what great men do. So the dissent in this case was somewhat surprisingly authored by Justice Alito and joined by the Chief Justice and Justice Kavanaugh. I was a little shocked that Justice Kavanaagh didn’t write something. This was the case in which he basically had a melty at the oral argument and was told by Justice Gorsuch, no less, to take a chill pill and take it down from like an 11 to a 2. And I did want to flag a line from the dissent by Alito, as this case, as we have talked about previously, could have implications for state litigation, including state criminal litigation against federal officers. So Justice Alito cites a previous Supreme Court case involving the prosecution of a federal marshal and says the case stands for the proposition that, quote, states cannot prosecute federal agents for their official acts, end quote. That is a remarkably broad and unnecessary reading of that decision, but perhaps an important sign about where at least three justices are on some matters that might make their way to them.

Kate Shaw Definitely concerning. And finally, in Enbridge v. Nestle, we got a unanimous opinion in a case involving a statute that says that parties who are sued in federal court have 30 days to try to remove, that is, to move the litigation from state to federal court. And here, a party sued by the state of Michigan waited a lot longer than 30 days to try remove, it was something like over two years, but then argued that the statute that sets forth the 30-day requirement was subject to equitable tolling, meaning that the court. Has discretion to pause or extend that 30-day period or forgive a delay. And there, the court, as I said, in a 9-0 opinion authored by Justice Sotomayor, rejected that argument and held the case, was removed way too late, and thus had to stay in Michigan State Court.

Leah Litman So before we get to our interview with Kate’s colleague Shaun about his book, Law on Trial, some housekeeping. So we are very excited to announce something big to our beloved members of the Crooked Media Extended Universe. So last year, the first ever Crooked Con blew our expectations out of the water. It was super fun. It was just an amazing, energizing event. And this year, we will be coming out of midterms and heading into a presidential election where the stakes will be. Total, so we realized there has to be a bigger CrookedCon. So join us for that bigger, and yes, we’re saying it even better, Crooked Con this November 5th to 7th in Washington DC. We’re talking bigger stages, more panels, more ways to plug in where you’re needed most, and more opportunities to connect with people who believe a better America is worth fighting for. In the days following the midterm elections, we’re going to have a lot to learn and even more to do to prepare us for the two years ahead. And we will need all hands on deck. So head to crookedcon.com and sign up for all the updates to come, like ticket release dates, lineup announcements, and more. We’re gonna be there and so should you.

Kate Shaw Okay, so that is going to be in November, and we’re all super excited about that. But you don’t have to wait until November if you want to see us live, because you can catch Strict Scrutiny Live at the historic Gramercy Theater on June 20th as part of the Bad Decisions Tour. We will be there. We’ll have some great guests. There is going be a lot of legal news to cover because in late June, there always is. We’d love to see you in person. Tickets are on sale now, so grab them at crooked.com slash events. And now, stay tuned for our conversation with my wonderful colleague, Shaun Ossei-Owusu, about his terrific new book, Law on Trial.

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Kate Shaw We are delighted to be joined for this segment by my Penn Law colleague, Shaun Ossei-Owusu. Shaun is the Presidential Professor of Law at Penn. He holds a JD and a PhD from Berkeley. And he’s the author of the brilliant and important new book, Law on Trial, An Unlikely Insider Reckons with Our Legal System. Shaun, welcome to Strict Scrutiny.

Shaun Ossei-Owusu Great, thanks for having me, Kate. Thanks for having me, Leah, and thanks for the kind words.

Leah Litman Super excited about the conversation, which I think will really resonate with a lot of our listeners, particularly those in law school, about to start law school and maybe recent graduates of law school. So you begin by addressing one of the legal professions’ most foundational principles, equal justice under law. And you suggest that it, quote, belongs to America’s collection of beautiful fictions nestled somewhere between Huckleberry Finn, The Tooth Fairy, and trickle-down economics, end quote. Maybe that’s why it’s above the Supreme Court right there in the business of fiction anyways. So how would you describe the book’s central argument to our listeners? And how does it complicate aspirational ideals like equal justice under law?

Shaun Ossei-Owusu Yeah, so I would say the key point that I want readers to take away from the book is that law schools endow students with what I call a tragically necessary skill. And that’s the ability to take pretty messy human problems and situations and transform them into legal questions. And I think part of the tragedy there is the necessity. I see it as akin to a doctor, you know, when a patient comes to a doctor. And in pain saying, you know, my chest hurts, I’m having trouble breathing. The doctor can’t sit there and say, wow, that’s crazy. Yeah, the job is to translate that into diagnoses, reimbursable, Medicare codes. And I think there’s something similar happening with lawyers. That translation is important to the work we do, translating it into legal questions, into procedural issues. But part of the challenge is that the human consequences of those problems in the moral way tends to be abstracted in that process. And so it’s easy to lose sight of the human consequences of that process

Kate Shaw So that’s a great kind of broad distillation. And the book goes really deep in very specific ways about lots of aspects of both kind of legal training and education and the legal profession. And I think it’s really a little genre-defying in that it’s this very powerful blend of memoir and systemic critique, again, of both law school and the illegal profession. So the introduction kind of provides an overview of your personal background and explains how it informs your view of legal education and the system more broadly. And I will just— note here that at one point while I was reading the introduction I handed the book to my husband who is also from the Bronx and I literally had to wrestle it back from him because he was so riveted. So at some point you need to write a full memoir because there is some memoir here but it’s not a full memoir but in any event with that teaser can you just like tell us a little bit about what makes you the unlikely insider of the subtitle and how your background convinced you that you needed to write this book in particular.

Shaun Ossei-Owusu That’s pretty funny. I mean, I would say a few things, you know, there’s, I mean there are parts of me that, many parts of you that have been pretty hesitant to call it a memoir. And I think it’s in part because a lot of people have memoirs and I’m somewhat of the view that, you now, I’m 41. I think people under the age of 50 should not write memoirs. Well, it’s not a full member, but it does, yes.

Kate Shaw Yes, yes, at some point you should write one, but you’re in it, you know, in the first person, like in the book, and I think that’s really important and it works beautifully.

Shaun Ossei-Owusu Yeah, absolutely right. There’s definitely like a first person, it’s a first-person forward book. And initially it was not that and I got feedback from some of our friends and colleagues who encouraged me to kind of dive more into what makes my perspective unique. And I would say to answer your question, I think, you know, the reality is I grew up working class and when you look at the demographics of the legal professoriate, they tend to come from, you And, you know, I think coming from outside these legal spaces, I began to kind of just see things that some people took for granted. So a perfect example is something that Leah’s colleague, Maureen Carroll, talks about in some of her own work, and that’s the filing fee for federal courts. That’s $400. And so for law professors and judges and attorneys, that might be peanuts, you but for the average American making minimum wage. That’s a week’s worth of wages. And so for me, you think about something like civil procedure, we tend to jump into questions tied to pleading standards and summary judgment and these doctrinal questions. But for the people who I grew up around, that’s not a technical detail. Like that can be a barrier. So for me it’s kind of hard to jump into the doctrinal analysis without asking, you know, who’s able to access the system. And so that’s kind of one way my background I would say shapes what I notice. In. On the flip side, I came to law school with a different toolkit. I pretty much did a PhD before law school, so it’s a bit more comfortable pushing back on the way things were framed. I was cautious about how I did it in class because I didn’t want to be that guy. But I would find myself thinking, individually or in officers, like, yes, this might be legally accurate, but this might sociologically wrong and not fully capturing what’s going on. But at the same time, I’m an insider. I’m a Ivy league law professor. I teach at a fantastic law school. And so, you know, part and part of the book, I’m kind of wrestling with the fact that, you know, I’m technically part of this club, but I come from a community that law often disregards.

Leah Litman So Sean, I don’t want to speak for everyone else, but I will suggest that maybe everyone in the universe would have preferred you to be that guy in the guy who actually was that guy. And that’s just, you know, a thought. Um, so, uh, you, you organize the legal profession, you don’t that you are describing as part of the system into four major institutions or institutional actors that perpetuate inequality in distinct but related ways. There’s law schools. There’s big law, law firms, there’s government attorneys, and public interest lawyers. If you had to diagnose one core pathology in each of those four corners, what would be the high level diagnosis for each or even like the through line between them?

Shaun Ossei-Owusu Yeah. So I think I would say for law schools, I think the challenges in much of the first year curriculum aren’t giving sufficient attention to the human problems that bear a tight nexus to the subject matter areas they’re covering. And so for example, property is about questions of ownership, but there’s little attention to that issue of homelessness. And So we have 700,000 people who are homeless. That is more than the populations of Atlanta, New Orleans, and Miami. So we’re talking about property, but not talking about homelessness, not talking about civil asset forfeiture. You know, torts is definitely about harm and injury, but we pay little attention to some of the core harms in the torts curriculum, like state violence and interpersonal violence. We say that’s something that we’ll deal with in constitutional torts, fed courts, civil rights courts, or family law. And you see that pattern repeat itself across the first year curriculum. In the context of government lawyering, I would say part of the tension is, these lawyers are government actors who are acting on behalf of the state, but oftentimes undermining the rights of their citizens. And so I have a chapter about municipal lawyers, so city law departments that represent cities in civil rights cases. And you have this structural tension where their client is the city. They’re trying to minimize legal liability and big payouts for the city. But at the same time, they’re undermining Title II ADA claims, 1983 claims, fair housing claims. So there’s this tension around these public servants that are undermining claims brought by their own residents. In the context of big law firms, and I try to make it clear, I worked at one. And so I think much of the discussion around the executive orders. Villainizes or valorizes law firms. And I think that’s not quite not right. And so they villainize law firms for making these deals with the Trump administration, misunderstanding the fact that these are businesses that care about their bottom line. And also, I think they valorize the law firms that pushed back when in fact, these people were not civil rights activists, they were fighting to protect their bottom-line and their access to federal buildings and administrators. And important national security work. And so the through line that I would say there is, I think that there’s sometimes, because law firms represent deep pocketed corporations, oftentimes some of that work is innocent and uncontroversial, but sometimes that work runs in deep conflict with public interest. And that’s where we see some of the inequalities in the context of environment, the health, consumer protection, banking. And then finally, in public interests, part of what I try to do in the book is describe the ways public interest work has really been straight jacketed by various kinds of reforms in the 1970s that prohibited the kinds of work that federally funded lawyers could do. And so you have this situation where they’re under-resourced, understaffed, and some unfortunately cut corners in the delivery of legal services in ways that undermine the interests of their clients.

Kate Shaw There’s so many wonderful parts of the book. In terms of the first year curriculum, you know, you mentioned towards, there’s just like each chapter is just so dense with, I think like pretty blinding insights about some of the omissions and some of the assumptions that sort of are threaded throughout each of these first year subjects. And I don’t teach contracts, but I just loved this anecdote of you texting a friend who was an undergraduate friend of yours who was already a practicing attorney by the time you went to law school because you had done the PhD first, and you text her quote… Is contract law a course in advanced oppression techniques? The ETF is going on, because you’re just like, you know, we don’t talk about predation and power dynamics and like language barriers. And I mean, some contracts professors do, but that is not, that is just wildly overlooked in so much of the way contracts is taught as a course. And then constitutional law, there’s just tons, I think, of really insightful material on many of the omissions from the constitutional law. Kind of the typical syllabus. You also sort of note the way that a lot of the kind of structural discussions in the constitutional law assume a functional democracy, which is a kind of fatally flawed assumption. Anyway, so I offer these by way of illustration, but I just commend to our listeners just sort of how much that is so rich and insightful is in each of the chapters about the first year curriculum.

Shaun Ossei-Owusu Thank you. I really appreciate it. And one of the goals, I think, of this book is certainly geared toward a general audience that’s never going to go to law school, but really want to understand how our legal system operates, but also see it as something of a companion of sorts for first year students who are either trying to understand what’s going to happen, what the hell is happening in real time, or what just happened to me. And I think the April release that may make it useful for people who just finished first year. Yeah, absolutely.

Leah Litman So can I ask a question about the diagnosis of these different institutions and the legal profession more generally, because I think you’re right in describing so many of these dynamics. And then there’s also this risk to me with this kind of critique and suggesting to people that these are endemic to the legal profession and these institutions. And so they can never live up to the ideal of equal justice under law. And so I guess I wanted to hear your thoughts just about how you think about describing these dynamics within these institutions, legal profession more broadly, but also in the spirit of encouraging lawyers and institutions to be better and not accept that this has to be this way, which is sometimes what I hear from people making a similar critique but I didn’t get in this book.

Shaun Ossei-Owusu Yeah, I would say I took law of democracy, essentially election law when I was at Berkeley with Betrol Ross. And I remember in the beginning of the semester just talking about democracy. And one of the helpful things that he said is that, part of what we’re going after is aspirational. And I think about equal justice under the law in similar ways. I don’t know that it’s something that will ever be fully achieved. I mean, empirically, there’s always gonna be instances of inequality, but I like to think of it as an aspirational ideal. And I think part of what troubles me is that in many parts of the curriculum and in many corners of the profession, it doesn’t even feel like we’re doing this kind of aspirational work. And I wanna be clear that I think that this varies depending on the site. You know, I think law schools are. Situated differently, and I think I said in the book, a place like CUNY is going to be different than a T14 law school. I suspect that CUNy is doing a better job at some of the things that I’m describing than some of them, to the extent that T14 is a trope that people even use. And I think the same applies to law firms, public interest attorneys, and government lawyers, that there are attorneys who are aspiring more toward that ideal. And so. Um, you know, I try to be, uh, encouraging in that context and, you know, sometimes get questions from students, you know, who have a sense of my diagnoses from reading my other work or chatting with me in office hours about how can I remain optimistic? And I just try to point them to history, um, and thinking about, you know, civil rights activists working along the lines of race, sex, broadly construed, uh and disability and highlight that, you that. They engage in advocacy with a much more limited toolkit and in a much hostile environment. And so that’s how I think about how to work toward that aspirational ideal.

Kate Shaw Okay, so next thing I want to ask about is you mentioned the law firm executive orders issued by the Trump administration. And you know, Donald Trump sort of came to mind actually a bunch of times as I was reading the book only because it sort of helps illustrate the stakes, I think, of a professional production pipeline that is insufficiently attuned to the human costs of deploying the skills that law school imparts. And I guess to explain that, just like, you know, you have lawyers. In the Trump administration who are concocting arguments that have the kind of, you know, like sort of shiny cover of sort of clever legalism in defense of the president’s party unilaterally, you, know, dismantle agencies or render babies stateless or cancel billions of dollars in federal funds. So I just mentioned this because if folks think, well, legal education is a, it’s a niche topic, but it’s maybe not one that affects everybody. It actually does produce these players who have enormous impact on all of our lives. So that’s kind of like a wind-up to a question that’s actually about something different, which is about the decision to focus just kind of mostly on ordinary professionals working within normal rules and incentives rather than on obvious villains or kind of sensational bad actors, because that seems like a very considered choice you make in the book, and I’m curious about why you chose that framing.

Shaun Ossei-Owusu Yeah, I would say I chose the framing for a few reasons. Some practical, some kind of conceptual. I think the practical explanation is I started this project in law school a decade ago before Trump entered office. And so the project precedes him, and it’s ending while he’s still president. But it felt important to me to not make that the center of my attention. So I would say that I think. One, I think I’m generally disinclined to focus too much on sensational topics. I think that, you know, another goal of this book is, you know I think about Scott Turow’s One L, fantastic book. And my hope is to be, I don’t know that I would displace Scott Turrow, but I want this book to have that kind of lasting, enduring impact. And I think focusing just on the present, I think… Would frustrate that goal. But then there’s a deeper conceptual explanation. And I think that’s just tied to the fact that much of this actually predates him and it will, what I’m describing, I suspect will outlast him. And so, you focused rightfully on much of what the lawyers in the Trump administration, what they’re doing. But I think I could probably point to something in every presidential administration before Trump. Where lawyers were engaged in problematic behavior. I was just at a talk where people were commenting about the lawyers who wrote the dear colleague letter under the Obama administration. And people were raising questions of what’s so different between what those lawyers did and what the Trump administration is doing. Obviously there’s the big conflict about the torture memos under the Bush administration. Or, historically, the fact that lawyers were central to the regime of slavery. So there’s a kind of historical explanation that, you know, lawyers have been responsible, you know for perpetuating inequalities. But on the flip side, they’ve also been responsible to challenge it, which brings me back to my previous answer. And then I just think, you will see what happens in 2029. But I suspect that these same problems we’ll still be sitting with us and then we’ll have new ones, you know, as it relates to artificial intelligence and the law school context, you know, the rise in accommodations. You know, I think that there are going to be problems that just outstrip the Trump administration.

Leah Litman So you are refreshingly candid about the institutional and personal headwinds that this book confronts. So you write, quote, some will consider it sacrilegious. My takes will almost certainly generate negative reactions from legal establishment types. IDGAF, their comfort is not my concern, and my sleep schedule remains unaffected, end quote. Honestly, thinking about getting that on a t-shirt or like tattooing it to my inner eyeballs, amazing line. And you are also confronting current headwinds around social justice, DEI, and what can safely be said or implemented across various sectors of the legal profession. So I guess, who do you think this book is for? What readers do you have in mind when writing it?

Shaun Ossei-Owusu I think I had a Tupac line in there that a colleague suggested that I take out because it was a bit too flagrant, so that was the final product. You can use it here if you want to find out exactly.

Leah Litman Exactly, exactly. This is the place for the cutting room floor takes.

Shaun Ossei-Owusu I think it’s receded to my memory, but maybe if I’m fortunate to come up in the future, I remember. Yeah. I mean, I think, I mean I would say a few things, again, I would, I, I I think I would say the kind of general reader who’s really trying to just make sense of, you know, what’s happening in our legal system across a variety of subject areas. So you think about climate change, healthcare, housing, disability rights, free speech. I intentionally wrote this to cover a broad swath of issues because I know that people read modularly. I know there’s a vast attention economy. And so, I would love for people to read my book from front to end, but I also know people are, people including myself can be a la carte about what they decide to read. And so I would say for general readers, I’m really trying to cover many issues tied to inequality that may be of interest to them. But I’m also trying to speak to law students. I would say, I kind of wrote this kind of as a kind of letter to myself in terms of what I would want to know before entering law school and before entering the legal profession. I find at least with myself and with some of my peers and colleagues that we tend to have the same conversations with law students every year about the detachment between doctrine and lived experience. And so I was hoping that this book could be. Something that could memorialize some of these discussions and have it so people can have a physical thing to have conversations around. And then I would say lawyers. I’m really trying to push lawyers. I know the book’s provocative, intentionally so, but I also try to be rigorous because I’m a scholar and that’s important to me, but. Oftentimes when we think about the causes of inequality, we tend to point to racism, sexism, capitalism, the various phobias of the world. And I think that those things matter. But I actually think it’s much more uncomfortable to point to lawyers because we’re lawyers, we train lawyers, and the general public tends to think about lawyers as people who are professional and necessary and not as people who are accomplices to inequality. And so. I would say I’m really trying to speak to general public interested in issues of inequality, law students and the legal profession.

Kate Shaw Well, all of those prospective readers and more, and I’m gonna throw law school deans into the mix because there are lots of actionable suggestions about sort of how to address some of the dynamics that Shaun was just talking about in the final portion of the book, but you will have to pick it up in order to actually get those. But it really is a searing but also humane critique of legal education and the legal system, and it really needs to be read far and wide. The book, once again, is Law on Trial by Shaun Ossei-Owusu. We will be thinking about it for a long time. I guarantee if you read it, you will as well. Shaun, thank you so much for this wonderful book and for taking the time to join us on Strict Scrutiny.

Shaun Ossei-Owusu Thanks Kate, thanks Leah, I appreciate being on. Thank you.

Leah Litman Thanks again to Shaun for a great conversation, and now it is time for our favorite thing.

Kate Shaw Okay, I’ve just got a couple. I mentioned I’m going to see Florence and the Machine tonight. I haven’t seen the show yet, but I think it’s already one of my favorite things this week. I’ll report back. Um, I have been very into Robin’s new Sexistential album.

Leah Litman I’m going to do that one, yeah.

Kate Shaw I’m sorry.

Leah Litman It’s okay.

Kate Shaw It’s weird, I was like, calendar marked for it to come out, and then it came out and I just like kind of forgot to even listen to the whole thing because she put out a couple of singles and like little clips from singles in advance. But now that I’ve actually started listening to the album, it’s so good. It’s hilarious and energetic and great. So definitely recommend that. A lot similar to her earlier stuff, but then some of it new kind of like motherhood themes and lyrics, but it’s deranged and great, other recommendation is actually two interviews with Nicholas and Rich. Who was interviewed in Wired and then actually by Tommy on Pod Save the World about his new book, Wood Chipper, a whistleblower’s account of how the Trump administration treaded USAID. I mean, you knew it was bad as like Elon and Doge destroyed the foreign aid apparatus of the federal government. And we sort of all sensed and then kind of later from experts had a real understanding of the literal human stakes and body count of the decision to. Savagely, sadistically terminate these life-saving aid programs. But this insider account kind of fills in the details in a way that’s even more disturbing than from, you know, the perspective that we all had kind of watching from afar as this carnage unfolded. So definitely check both of those out. And I’ve also loved this week the excerpts from our co-host Melissa’s conversation with Sally, founder of Argent, the clothing line that we have all talked about and love. On her Work Friends series. They’re just like wonderful, delightful little like excerpts of Melissa being, you know, charming and brilliant and Sally asking great questions. So I’ve really enjoyed that this week.

Leah Litman Can I preemptively manifest enjoying being a work friend and podcast friend dressed in more argent clothing at our New York City live show? Manifest that. Put that out there. I’m putting that on my favorite thing. So I also would have listed in Robyn’s Sexistential, kind of like Hilary Duff’s Luck or Something album. It just really grew on me. I think I have some issues where singers release lead singles that I like a ton, you know, unlike often. Every Taylor Swift album or, you know, Charlie’s Weathering Heights album, like the lead singles are never my favorite songs, whereas not so much the case with existential luck or something. I saw Lily Allen’s show in DC. It was everything. I loved it. Just incredible. I got up kind of a lot of favorite things. Sorry. So the Lego videos of cash but Uh, kind of like what I-

Kate Shaw I can imagine this, but I don’t think I’ve seen them. What is the legal cash doing?

Leah Litman You know, replaying the Atlantic story, you know, reenacted with Lego. Is he at the Poodle? What was it called? The Poodal Room, the Puddle Club. Just you got to check it out. OK, it’s really great. It’s really. Great. As I kind of alluded to up top, really loving Noah Khan’s A Great Divide. I loved his Tiny Desk concert. You have to be in the right mood. It is at least a tiny desk concert. The saddest thing since Taylor Swift performed I Can’t Stop Loving You Um, just very, very. Sad person energy, you know, great time to be sad. But yeah, loved it. So two related posts that I really liked. One was on the bulwark by JVL. And that was it is time for ruthless aggression. And the other was by Brian Boitler at Off Message, the gerrymandering fight should be a dress rehearsal for court packing. And both of them are basically making the same argument that, the Democrats basically being willing to fight by engaging in partisan gerrymandering in order to achieve like a more nationally equitable fair outcome is something that they should get comfortable with and be willing to deploy when it comes to Supreme Court reform. And I just really like these takes being out there. I don’t love that the bulwark is to the left of like the median democratic official in the Senate, but maybe this is a way of getting them there. So like those. And then as we were kind of alluding to Steve Vladek had a great. Post on one first called sane washing the emergency docket, responding to some of the efforts that Kate and I were alluding to. Try to kind of throw out, well, you’re misunderstanding. There’s this way of explaining what the court was doing and a way of analogizing it to things the court had done before that just make it no big deal. And actually, all of the court’s reasoning was great because they invoked legal standards. And Steve just has the Constitution to actually do the replies and responses. So And I just really admire it, because I tried to do this during the first Trump administration, where I was actually willing to be in social media on the replies and the comments. And I can’t do it. It just completely taxes all of my energy. And so I can do it in certain fashions, like writing my own things or talking on the podcast. But I can constantly be on social media, doing it in replies and comments. But that’s important. It is really important to do that. And you know, again, more power to Steve. Before, yes. Yeah. OK, so one other small thing. So I’ve talked about before, the paperback version of my book, Lawless, is coming out June 16. Has an entirely new section on the Unitary Executive. And again, because I’m me, I updated all the chapters. I can go into reasons why later. But I want to run a giveaway like I did last time, where if you pre-order the paper back, you can get a t-shirt. And so I’m willing to accept requests for what t-shirts I should make. So. Some possibilities that I had were, I kind of like what you just said, like, but courts. You know, maybe vibe maxing, maybe, you know, good vibes rising, maybe weak on crime. Again, willing to accept suggestions. So, yeah, you now, hit me up with those ideas.

Kate Shaw All right, so once you tell Leah what to do for the t-shirt giveaway, she will announce what she’s doing, and then you can get on it, pre-order that paperback, well in advance of the June 16th pub date. I’m excited. I want to read the new chapter. Do you have galleys yet of the paperback or it’s like you have PDFs not physical galleys.

Leah Litman Exactly yeah so I, I don’t um but i can send you a copy as soon as it is out.

Kate Shaw Please do. Awesome.

Leah Litman Um yeah because i will be out there chatting it up.

Kate Shaw As will Melissa, whose book comes out about a month earlier than yours, but you guys will be like, just a little bit overlapping in like the kind of book cost circuit.

Leah Litman Actually next week. It comes out next week!

Kate Shaw Yeah. Oh, it’s next week?

Leah Litman That’s the release date. Yep.

Kate Shaw All right. Melissa, next week, happy release eve. I know you’re out there recording your audiobook and doing all the other things. I’m excited to see it out in the world.

Leah Litman Me too.

Kate Shaw Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer, Jordan Thomas is our intern, music by Eddie Cooper, production support from Katie Long and Adrienne Hill, Matt DeGroot is our head of production, and thanks to our digital team, Ben Hethcoat, Johanna Case, Kenny Moffat, and Eric Schute. Our production staff is proudly unionized with the Writers Guild of America East. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube. At Strict Scrutiny Podcast so you never miss an episode. And if you wanna help other people find the show, please rate and review us, it really helps.