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October 03, 2022
Strict Scrutiny
How SCOTUS Distorts Democracy

In This Episode

It feels like we’re still processing the end of last term, but alas, the first Monday in October is upon us. Kate, Melissa, and Leah kick off season 4 of Strict Scrutiny with a look ahead at what’s sure to be another heinous Supreme Court term.






Show Intro Mr. Chief Justice, may it please the court. It’s an old joke 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 .


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


Kate Shaw I’m Kate Shaw.


Leah Litman And I’m Leah Litman and the band is back together. It feels good, but also anxiety inducing, as we’ll talk about in a second. But we also know we have some new listeners, so we figured we’d do some brief introductions. So I’m Leah Litman. I’m a law professor at the University of Michigan, where I write on constitutional law and federal courts. I am a huge Taylor Swift fan and reality-TV aficionado, especially RuPaul’s Drag Race and a Fly Island. My other passions include my mini goldendoodle dog making jokes about enforcing the Voting Rights Act. I’m not going to explain that right now. And also making sure all of America knows what Sam Alito is up to. I clerked on the Supreme Court and in the before times before, there was a majority of forced birth advocates on the court did some practicing before the Supreme Court as well, including in a woman’s health versus Hellerstedt, the case invalidating a pair of Texas abortion restrictions and DHS versus regents. The case invalidating President Trump’s position of the Deferred Action for Childhood Arrivals program.


Melissa Murray Hellerstedt, we hardly knew you. On that note, I’m Melissa murray. I’m a law professor at NYU. And before that, I was a law professor and sometime dean of Berkeley Law. I am an expert in reproductive rights and justice, constitutional law, and Meghan Markle and her in-laws, a.k.a. the Royal Family. And my passions are my own family, my dog, a little beast poo named Cole, who is perfect in every way skin care, Supreme Court and other wise fashion. And again, Meghan Markle and her in-laws and I clerked for Justice Sotomayor when she was an appellate judge on the Second Circuit.


Kate Shaw And finally, I’m Kate Shaw. I’m a law professor at Cardozo Law School in New York City, where I teach administrative law, constitutional law and some other topics. Before law teaching, I worked as a lawyer in the Obama White House Counsel’s Office, and before that, I clerked for Justice Stevens on the Supreme Court and Judge Posner on the Seventh Circuit. I live in Brooklyn. I am a running and yoga aficionado. I have three kids and a wonderful rescue dog who is perfect in a different way from Leah and Melissa’s dogs, but perfect in her own way. All that means I’m perpetually under slept totally clueless about TV references and generally 5 minutes late to our recording sessions. Although I was basically on time today ladies,.


Melissa Murray You were 3 minutes late, which is progress.


Kate Shaw No. My clock said 2:01. I was one minute late. I was in the waiting room at two. I really was.


Melissa Murray All right, Kate. It was bad bitch o’clock and you were a little late.


Kate Shaw That’s fair.


Melissa Murray Before we get into the court, can we take a beat for a minute and just sort of, you know, ruminate on some of the things that have happened since we were last together? I know you guys were together at Michigan for your live show, but I was recovering from the funeral of Her Majesty Queen Elizabeth the second. And I just want to just maybe say a few things about that. Can we talk about our dear friend and strict scrutiny invitee Meghan Markle and her amazing funeral fashion and her single tier, that one single tier that she allowed to just like glide down her cheek like she was just serving funeral realness, like no jewelry, and like her in-laws were like doing the most like Kate Middleton and the New Princess of Wales was wearing this massive hat with a net and a bow and a pearl necklace, which look like it had like a pearl vagina on. It was weird, but she needed to add it her. Look, I really I. Kate looked beautiful, but she needed to edit her look. And, Meghan, looked amazing.


Leah Litman Is there a way this this relates to the Supreme Court?


Melissa Murray Yes. Because Meghan Markle was wearing this glorious Stella McCartney cape dress that was black. And I have to say, I saw it and I was like, This is SCOTUS fashion. This is giving SCOTUS realness. I would love to see Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson, maybe even Amy Coney Barrett wearing this cape dress to oral argument like make it longer of course, but make it fashion.


Kate Shaw I feel like I didn’t always know, but now do know that the justices don’t like get unofficial robe in conjunction with their commission from the president. They just buy their own robes. And so there’s like a little variation you can see when they’re all standing together. So, Melissa, you’re right, there is nothing stopping one. No. From adopting this insanely gorgeous cape robe style.


Melissa Murray Get a cape robe!


Kate Shaw I think we should.


Leah Litman What if one of them printed on the back of it “I don’t care. Do you?”


Kate Shaw No, because they care so much. But I think you’re right about the messaging opportunities.


Melissa Murray Yes.


Kate Shaw Right. Of course. Chief Justice Rehnquist, you know. Famously adorned his robe during the impeachment trial of President Bill Clinton with these three yellow stripes.


Melissa Murray Gilbert and Sullivan, he was like, I’m going, I’m serving Gilbert and Sullivan.


Kate Shaw And then he retained that robe for the duration of his time on the bench, and I don’t think anyone since has really undertaken any sartorial flourishes. I guess that’s not true of the robe. That’s true about Ginsburg would of course, don her famous jabot. But, you know, the dissenting one, the majority opinion one when she was announcing opinions from the bench. But the robes have gone unadorned and I think that needs to end.


Melissa Murray Yeah, I think this cape dress could be the end. This is the perfect intervention. And when your job is a little bit like attending a funeral every day for a whole year, like why not?


Leah Litman We are here to witness the death of American law and democracy.


Melissa Murray Single tear.


Kate Shaw So that’s a good. I think that’s a good segue way. Yeah. Yeah. So. We’ve been avoiding it.


Leah Litman We’re here for season four of the podcast, on the eve of a new Supreme Court term. Wow.


Melissa Murray How is your summer without rights? How was your first summer without rights? Was it good? Did you get a lot done.


Kate Shaw I think that’s why it feels so surreal to be sitting here on the cusp of doing all of this madness all over again when it feels like we are still so deeply immersed in the fallout from the last term. Right. We’re obviously going to be dealing with the fallout from Dobbs and other cases for decades. And that is true in the sense of the profound consequences this term is continuing to have for people’s lives and health and safety. For many people in many states, it has fundamentally upended access to medical care and control over reproductive lives. And we should be clear that access and that control were tenuous for many people well before Dobbs. But since Dobbs, that is only accelerated. 14 states have banned all or most abortions. Other states in which litigation is ongoing are trying the on the ground effects of last term’s biggest decision are massive and they are ongoing.


Leah Litman And it’s not just the on ground effects of the particular decisions. You know, the consequences of last term are also because the courts approach to law and the resulting chaos in the law and our government institutions it produces. And so we don’t want to sit here and be like, okay, well that was that time to roll up our sleeves, pretend like none of that happened and play this game again. I’m not suggesting anyone in particular is doing that, but some may be are. But, you know, we are not back to a normal court that acts like a serious judicial institution, and we have not somehow magically moved beyond the past term.


Kate Shaw It’s worth pausing on that for a minute just because if you are relatively new to following the Supreme Court, I think it is important for us to underscore that none of this is normal. Right. It is not normal for the Supreme Court to talk prior cases the way it has in the last term. It is not normal for the court to do things like order executions to proceed even when lower courts have put those executions on hold for various sound legal reasons. It’s not normal for the court to second guess state and federal public health officials decisions the way it did throughout the pandemic. But, you know, all of this and more is where we are. But it is important not to become numb to how atypical and how anomalous all of this is.


Melissa Murray What’s also atypical is all of these justices hitting the media circuits to say everything is fine.


Kate Shaw Yeah.


Melissa Murray It’s all fine, except for Elena Kagan, who’s like, it’s not all fine. It’s actually terrible and this is really bad. So more for your this is not normal pile. But ladies, that was the last term. This is the new term and everything’s going to be different. Right? Yeah. No, it’s not going to be different. That was me trying to be optimistic. It’s not going to be different. It’s actually just going to pile on. And, you know, there’s more we can say about October term 2022. And indeed, we’re going to spend most of this episode talking about what’s in store for this term, drawing on what we’ve learned over the last couple of years. But I’m just going to say it, this term is merely a continuation. Like we got a hiatus. So where to start? The justices are going to resume hearing cases on the first Monday of October. That is normal. That is what they normally do. And this year, that is October 3rd, the day that this episode will be released. But prior to the resumption of oral arguments on Friday the 30th, the day that we are taping, the court actually issued a new photograph of the new Roberts court featuring the U.S. Justice Ketanji Brown Jackson. It’s not the official photo because President Biden and Vice President Harris are in there, but still. So I just wanted to call attention again to some notes. You know, we don’t really get to see below the robes that often. So there’s some interesting points here. First of all, our boy Sam really looks like he’s celebrated all summer long. Like when you lay waste to 50 years worth of precedent, you deserve to tie one on. And it looks like he did. Well, I mean, he looks a little weathered. I mean, am I wrong?


Leah Litman I.


Kate Shaw No.


Leah Litman He looks puffy, right? He looks like he had a few too many Ginni tonics this summer.


Melissa Murray He just looked like he raged all summer and like. And he just had the best time. Like his skin looks red and a little mottled like this is not what we’re used to. So again, this is not normal. I mean, usually this is a septuagenarian who’s looking like he’s 50 years old, like. He looks, again, weathered.


Kate Shaw He looks rough. It made me wonder whether, you know, he was sporting that beard for part of the summer. And I don’t know if he was covering all of this up. And I wonder whether he might want to consider bringing that beard back because.


Leah Litman You can’t hide the bags under the eyes. I’m just saying. Right. Like the beard is not gonna make that go away.


Melissa Murray Like your whole face is covered in hair.


Kate Shaw But, you know, look, is it possible he looked as kind of terrible as he did because he was standing next to the reflected light of the beautiful Ketanji Brown Jackson standing next to him in the photos?


Melissa Murray That is I. Mean, we’re going to call this the Meghan Markle, Kate Middleton effect. I guess. It could be that I will also call attention, like most of the men on the court got the white shirt with an either blue or red tie to convey that you are you are part of a nonpartisan institution. So blue or red, either one, but not Neil Gorsuch. Neil Gorsuch decided to serve a new look, an L Iwk look, and he decided to come to this portrait wearing a blue shirt. And to which I say, continue to slay Neil. Like this is the kind of iconoclastic behavior that allows you to be the most important voice on federal Indian law. Questions at the Supreme Court. So continue that. Justice Barrett was also serving fierce looks. She had a pair of red maroon ish suede shoes. Like a gun does not seem regulation. This is a new kind of turn for the court. So I thought this is a really interesting.


Leah Litman Are you supposed to have red shoes with your red robes? Is that a thing?


Melissa Murray I mean, I don’t know. Justice Sotomayor to Kate’s earlier point about people getting to kind of wear whatever robe they want you to, kind of satiny robe on it didn’t look regulation. I don’t know how I feel about this. I love Justice Sotomayor. Like I don’t love a satin robe. I did love Justice Kagan’s outfit. She had this very sort of subtle gold like necklace. And I really want a necklace like that. It looks really good. And but the real headliner in all of this, our newest justice Ketanji Brown Jackson. And again, we never get to see below the robes, but in this picture, you got full length justices and she was wearing a pair of chunky heeled black pumps with an ankle strap and a little bit of tweed detailing. And I was like, okay, here we go. Like, we have never seen this on the court before and I kind of loved it. So she was the headliner. It was a very strong start for her sartorial wise, and I can’t wait to see what the rest of the term brings. Like, you know, while we’re overruling affirmative action, let’s make it fashion.


Leah Litman So maybe speaking about this upcoming term, let’s look ahead to term themes, specific cases and anything else we’re watching for will also do a general roundup of the vibes on the eve of this court’s term. So some term themes I’m watching for or envisioning, you know, to my mind, like one question that really is a through line across several cases the court is hearing is the court will ponder the question of is democracy constitutional? And part of that will involve assessing whether laws or doctrines that help facilitate. The existence of a multiracial democracy, our constitutional.


Melissa Murray See, you just said it, Leah. I think they’re fine with democracy. It’s that multiracial part that might be the problem.


Leah Litman I’m actually not sure if they’re fine with democracy, like I envision Neil Gorsuch and Sam Alito as the reply. Guys that are like, but actually we’re a republic. Yeah.


Melissa Murray That Mike Lee line.


Leah Litman Exactly. Exactly. But but these are the cases about the Voting Rights Act, which we’ll talk about later, the independent state legislature idea. And, you know, this also concerns the cases about the government’s power to remedy discrimination. You know, the affirmative action case that, Melissa, you alluded to as well as the case on the Indian Child Welfare Act, those cases in particular will also prompt a what I am envisioning to be a Dobbs leak style investigation led by the chief justice with maybe possible assist from Ginni Thomas that will look into whether Justice Thurgood Marshall is the real racist. Since all of these cases, ask some version of is it discrimination on the basis of race to enact measures that take into account race in order to prevent further discrimination on the basis of race or to remedy past discrimination on the basis of race?


Melissa Murray You know, Leah, I heard it once said that the best way to stop discriminating on the basis of race is to stop discriminating on the basis of race.


Leah Litman That would be the chief justice’s famous line from parents involved in which he equated, you know, efforts to integrate schools that took account of race with Jim Crow era segregation. This is why I am jokingly suggesting these cases prompt the question of whether Justice Thurgood Marshall and other individuals that helped secure desegregation, you know, were themselves engaged in racial discrimination, food for thought, it turns out. And of course, the court will continue its quest to demolish our system of constitutional remedies and in the process, leave important rights unenforceable. And I’m just going to put that one out there, because this is a theme we will return to later.


Kate Shaw Okay. So in terms of big themes to watch, Lisa, you covered a lot of them. Let me just throw in a couple of other things just to draw out the point you were alluding to. The court is poised to hear three cases at the moment. There could be more added to the docket, a Voting Rights Act, Merrell versus Milligan, which I’ll talk about in a few minutes. The Harvard and USC affirmative action cases we’ve now mentioned and that we talked about at length with Michele Adams last week and the case about the constitutionality of the Indian Child Welfare Act equa. That all have this very important throughline so they’re about very different topics. Right. Legislative redistricting, affirmative action, adoption placement. But taken together, they could absolutely result in this being the term in which the court reads the Constitution’s guarantee of the equal protection of the laws as outlawing efforts to eradicate discrimination. You said this before, Lisa. I’m saying it again. Now, if it sounds crazy, I agree. But there is absolutely a view on this court, and I think it is likely now the majority view that says all government use of race is equally pernicious and equally constitutionally suspect. Whether we’re talking about using race to build diverse college classes or ensure adequate representation to voters of color, or to ensure native children up for adoption, have a meaningful opportunity to be placed with members of their tribes against a history of forcible removal of native children and the deliberate destruction of Native families and cultures. But this view says the Constitution views all of that as identical to using race to entrench and protect white supremacy. And as Melissa alluded to, John Roberts has historically been the chief proponent of this view, and that is since way before he was the chief justice. Right. So, you know, going all the way back to 1982 when he was a 26 year old lawyer in the Reagan Justice Department, he was writing memo after memo opposing expanding the Voting Rights Act. Then in 2007, once he’s in a position to actually enshrine these views into law, he writes the opinion containing the stop discrimination on the basis of race by stopping discriminating on the basis of race language. In 2013, he authored Shelby County versus Holder, striking down a key provision of the Voting Rights Act. So, look, I think his view is clear. And the big question to my mind is whether his concern about pumping the brakes somewhat on this. You know what Lisa has coined the YOLO Court will overtake his desires to finally see this 40 year effort bear fruit.


Leah Litman My guess is no.


Melissa Murray Well, I think you’re right. Let me add, as this entire term plays out, I think we should institute a little strict scrutiny. Drinking game and the game is this. Any time someone mentions the first Justice Harlan and his dissent and Plessy, you have to take a drink, because invariably the people invoking Justice Harlan, are going to be the people trying to dismantle efforts to remedy past racial discrimination.


Leah Litman But isn’t that gonna mean we’re going to result in Sam Alito, like puffy faces?


Melissa Murray We’re going to look weathered. We are literally going to look like we were rode hard and put away wet. We’re going to look so messed up at the end of this. You’re right. But to prove a point, I mean, like they’re going to beat Justice Harlan with a stick until he’s done.


Kate Shaw We may have to sacrifice our skin in service of making the point that this is unbelievable hypocrisy.


Melissa Murray Or we’re just have to do extra hydration for the whole term just to counteract the effects of this. It’s going to be a lot of drinking.


Kate Shaw I feel like I’m ready, ladies. I think I think I’m ready for it to do what is needed.


Melissa Murray So a couple of other themes just to highlight. One I think is we’re going to see more history, like more history and tradition. And the best part of invoking history is like no one on this court actually is trained as an historian. So this is going to be fantastic. I think we’re going to see more selective invocations of history. So, you know, when Justice Thomas writes the opinion overruling Grutter and ending affirmative action in higher education, we’re going to have this whole history about how the consideration of race itself is racist. But we’re going to miss the whole history of how the Equal Protection Clause is actually drafted and ratified in the wake of a civil war, fought about slavery and indeed the racist act of owning people. I’m not going to hear anything about that, so I can’t wait for that, like the perversion of history that we’re going to get and chef’s kiss. I think we’re also going to hear continued discussions of the court’s legitimacy, perhaps by the justices themselves, but even by others. I mean, again, I want to draw a line under this. We are going to get in this term for the first time, perhaps in a long time, maybe even ever, where the spouse of a sitting Supreme Court justice testifies before a select committee of Congress about her text messages to the chief of staff of a former president during what was apparently an effort to overthrow the results of a validly conducted election. So.


Kate Shaw What you’re saying is this is only maybe the first time in time just because.


Melissa Murray There was a whole flap.


Leah Litman Melissa, unlike the justices, is a rigorous historian. This is why she has membership in the Organization of American Historians.


Kate Shaw Good point. Good point.


Melissa Murray Abe Fortas, his wife, had some trouble. I’m Carolyn. I forget what her last name. And so I actually haven’t gone to look and see if she was before a congressional committee. But I do know there was some issue with Abe Fortas, his wife, and whether he himself had engaged in some acts of impropriety during his time as a justice. And I think it was.


Kate Shaw It stopped him from getting elevated to be chief. Yeah.


Melissa Murray Yeah, no, that’s why exactly. So I didn’t want to sort of say broadly it’s the only time it’s ever happened because there may have been this little flap earlier. But I mean, in recent memory, certainly in my lifetime, I don’t think we’ve ever seen a spouse of a sitting justice do this. Although could you imagine if, like Justice Breyer’s wife, Joanna, had to go before Carl. Like, no, you can’t, because it would never happen.


Leah Litman Although you just wonder whether if Republicans take back the House or the Senate, they’re going to think like what goes around comes around. I’m going to require like poor Patrick Jackson or a Senate committee or something. Right.


Melissa Murray Explain why you kissed her on the head. When she walked down the steps.


Leah Litman Exactly.


Kate Shaw And the socks. Explain your socks.


Melissa Murray Explain your socks, sir.


Leah Litman So in addition to those themes, there are also particular cases we’re watching. I’ll just put a pin in the Voting Rights Act case which will preview Merrill versus Milligan, as well as the independent state legislature case Moore versus Harper. The case is about the availability of remedies that I’m watching are an important habeas case, John versus Hendrix, about whether someone who was convicted of something that isn’t a crime or sentenced to more time in prison than the law says, they can serve as a remedy for that problem. And then there’s an important spending clause case about whether individuals who are beneficiaries or participants in spending programs like Medicaid or whatnot can sue to enforce the conditions on those programs. And that’s also an important case to watch that. We’ll discuss more when it is up for argument.


Kate Shaw Another big case that I’m watching is 303 Creative versus illness. I’m sure we’ll all be watching it closely. It’s kind of a sequel to the 2017 decision Masterpiece Cakeshop, which involved a Colorado baker who didn’t want to bake a cake for a same sex couple celebrating their marriage. This case involves the same Colorado anti-discrimination law. The plaintiff here is a would be Web designer who claims she will be burdened by having to design websites on a nondiscriminatory basis. Although no one has asked her to design a website regarding a same sex wedding or any wedding, as far as I can tell. Nevertheless, right. She is arguing that the First Amendment protects her from complying with this generally applicable public accommodations law. And I think that whatever the court does here could have enormous implications for public accommodations laws broadly, right? Like laws that require providers of goods or services who enter the marketplace to provide those goods and services on a nondiscriminatory basis. These are laws the courts have enforced for over a century, a finding. Or this would be web designer could have enormous implications well beyond this particular dispute, you know, in terms of our ability to reside together in a diverse and pluralistic society, maybe the court could rule narrowly. But, you know, it’s hard for me to see her winning without starting to unravel anti-discrimination law broadly. So this is a case that I’m watching closely and incredibly nervous about.


Melissa Murray Just to add to this issue of three or three creative, it’s worth noting that this was initially filed as a case dealing with both free exercise and speech, and the court declined to grant cert on the religious rights question and instead is sort of thinking about this purely in terms of compelled speech in avoiding the free exercise question. The Court also avoided a broader issue that Lorie Smith asked them to take up, and that is whether Employment Division versus Smith. That 1990 case dealing with neutral laws of general applicability and their impact on religion is continuing to be a constitutional decision. So perhaps a little restraint from the YOLO Court and how they granted cert on this, although they could just simply, you know, allude to the fact that Smith has been abandoned as they have in other places, and just avoid it entirely. But I thought it was really interesting and to Leah’s point about rights without remedies, and this relates to Justice Thomas’s concurrence in jobs, you know, whether or not we get a frontal challenge to Obergefell going forward, as Kate says, this case will have real implications for nondiscrimination anti-discrimination measures. And again, it may be the case that you can marry a person of the same sex, but you just can’t go out in public with them or can expect to avail yourself of services that are generally available to the rest of the public.


Kate Shaw Let me flag briefly two kind of lower profile cases that I’ll be watching this term, as you see, versus Cochrane and Axon versus FTC. These are two administrative law cases, both involving administrative law judges, and they’re both about your ability to challenge an enforcement proceeding that is ongoing. So it hasn’t ended and you haven’t been fined or, you know, had some final disposition. But whether you can challenge kind of mid-stream in order to allege a constitutional defect in the scheme and the constitutional defect that the parties in both cases are alleging is that these removal limitations for both SCC and FTC administrative law judges are unconstitutional. So there is like threshold review ability. QUESTION But the substantive constitutionality question about whether these positions of ALJ are constitutional has the potential to kind of further advance the project of a bunch of different cases that we’ve talked about on this podcast, including maybe most importantly, say, a law. And that’s a project that is basically extremely skeptical about agency independence and basically emphasizes the importance of the president controlling everyone and everything inside the executive branch. And. Right, valuing that idea of presidential control much more than Congress’s authority to design agencies in ways that are sometimes novel, right? CC Leo, who’s written about novelty but allowing Congress to respond to new and developing problems and needs or the court seem to really undervalue that principle in the Constitution and to overvalue, I think, presidential control. And so I think these cases have the potential to kind of further advance that project.


Melissa Murray Some other cases that we’re following, obviously, everyone is, of course, following the two cases concerning affirmative action, Students for Fair Admissions versus Harvard and Students for Fair Admissions versus USC. The two cases race two very different but related sets of issues. The Harvard case deals with the statutory challenge to the use of affirmative action or race based affirmative action in higher education admissions. The USC case deals with whether the Equal Protection Clause permits public schools like the University of North Carolina to consider race as part of its admissions processes. I think we all know how this is going to turn out. I mean, I’m sorry if I’m like a total pessimist, but again, this this issue was taken up by the court in 2003, a very different court, a 5 to 4 court in which Justice O’Connor joined the Liberals to uphold the affirmative action policies at the University of Michigan. But that’s obviously not the court we have now. And I think the real question here is how is the court going to write the decision overruling affirmative action and Grutter in a way that isn’t like DOBBS Where it’s like, huh, we just looked at this a couple of years ago in 2003, and now it’s totally different. And what else is different? The whole composition of this court is different. So I think if they want to avoid the legitimacy questions, it’s going to be you know, they’re going have to really contort themselves to write a decision that looks law and not vibes. And I’ll be eager to see how they strike that balance. Right. I do think this is a done deal and affirmative action is going to be over. The real question, I think, going forward is, you know, it’s going to spark a lot of litigation because this is focused on admissions. But obviously the use of race and other kinds of protected characteristics, factors into just the operation of many institutions of higher education. And that will be an ongoing question. Another set of cases to flag for you, Brackeen versus Holland, which is four consolidated cases, all concerning the constitutionality of the Indian Child Welfare Act. That’s a federal statute and. Enacted in 1978 that does, among other things, establishes minimum standards for the removal of native children from their parents and their families, and establishes a preference for native children who are removed from their homes to be placed with extended family members or in native foster homes. And the question in this case is whether these provisions of equa that prescribe these minimum standards, impose placement preferences and recordkeeping requirements for child welfare proceedings involving native children, violate the anti commandeering principle of the 10th Amendment and whether they violate the equal protection clause. And so sort of undergirding question here is whether native status is a political category as it has always been viewed as or whether it is a racial category, which would be a very novel new determination from this young and restless court.


Melissa Murray [AD]


Leah Litman So maybe now we can talk about the specific cases that the court is going to hear the first week of this new term. So during the first week, the court is going to hear a major challenge to another administrative agency and the authority of the regulatory state. That case is Sackett versus EPA. So this case also continues. The court’s steamrolling over the jurisprudence of Justice Anthony Kennedy. All the while, you know, Justice Kavanaugh gaslights us that he has the utmost respect for the justice and all of his opinions. Now, the question in this case is specifically about the EPA’s authority under the Clean Water Act and how to determine whether certain wetlands are what waters of the United States that the EPA can regulate. You know, last term the court kneecapped the Clean Air Act. But why just stop there, right? Just do it all YOLO. Right? Like. Yeah.


Kate Shaw The background here is in a prior case, Robin Hose versus United States, a majority of the court said that wetlands were regular able under the Clean Water Act. So kind of the math here is a little complicated, but bear with me for a second. So Justice Scalia wrote the plurality opinion in that case and he concluded that wetlands were only regular able or the EPA could only regulate them if they had a continuous surface connection to bodies of water like rivers or streams. So that was a very narrow view of the EPA’s authority. Justice Stevens.


Melissa Murray Who’s the real riparian here? I’m sorry, I couldn’t help that. Go. Sorry.


Kate Shaw Water, water related, water related for folks who are not steeped in the language. So that is that is repaired.


Melissa Murray Inside joke. Sorry.


Kate Shaw Yes.


Leah Litman That’s not an inside joke. Sorry.


Kate Shaw But there are probably listeners for whom riparian is not like.


Leah Litman Yes, no, I’m sure that still does not make the use of the word riparian an inside joke.


Melissa Murray Who’s the real riparian? You get? You know where it’s coming from. Justice Scalia is the real riparian. All right.


Kate Shaw Focus, people.


Melissa Murray All right, focus.


Kate Shaw So back to this 2006 case. So Justice Stevens in dissent for himself, plus three others. So writing for four justices took a very broad view of when wetlands could be regulated. And then Justice Kennedy wrote separately to explain the wetlands could be regulated if they had a, quote, significant nexus to more traditional navigable waters. So the Justice Kennedy opinion was a controlling one. So if you take the Kennedy opinion plus the Stevens opinion, that’s five votes for the EPA having the authority to regulate at least where there is a significant nexus to more traditional navigable waters as compared to the really restrictive Justice Scalia vision of the EPA’s authority. But here, the plaintiffs are basically asking the court to jettison the Kennedy test in favor of one that would make wetlands surprise, surprise much less subject to regulation. So they basically are asking the court to adopt the Scalia view. The wetlands can be regulated only if they have a continuous surface water connection to navigable waters. This would significantly limit the EPA’s authority to regulate under the Clean Water Act. And the stakes here are really high. The EPA basically says that wetlands play an essential role in protecting. And I’m quoting from the solicitor general’s brief here the chemical, physical and biological integrity of neighboring waterways, including by filtering pollutants, storing water, providing flood control. So deeming those wetlands outside of the regulatory purview of the EPA would have significant compromising impact on the EPA’s ability to protect water. And like what is what the EPA has done over the last half century to, you know, water quality has been absolutely transformational, right? Like you can swim and you can fish, you can drink like water is in this country that 50 years ago were, you know, just like absolutely polluted disasters and.


Melissa Murray Not in Jackson, Mississippi, Kate.


Kate Shaw Right. No. So and considering the kind of serious water problems we have right now and flooding and sort of related issues to further kneecap the EPA at this moment, what I think be potentially quite disastrous. And yet that is what these plaintiffs are seeking.


Melissa Murray Let me get this right. The petitioners are seeking yet another deregulatory splash, anti-regulatory, anti-environmental ruling. And I’m guessing they’re probably going to get it.


Kate Shaw Seems like it.


Melissa Murray Pour one out for the climate. Pour one out for the planet.


Leah Litman Yeah.


Kate Shaw I will briefly just mention two smaller cases. The court is hearing the first week of arguments. The first is an original jurisdiction case, although not one involving riparian rights. Unusually typically, they do. But this is a case. So original jurisdiction cases are cases that are filed in the first instance in the Supreme Court. So if you’re a state, you actually just file your complaint in the Supreme Court. You don’t start in the lower federal courts like most people do. And the question in this case, Delaware versus Pennsylvania and Wisconsin, is whether MoneyGram official checks are a money order. Those checks or other similar written instrument on which a banking or financial organization is directly liable. So the case is just about basically a dispute between states over which state can claim certain abandoned property, whether it’s Delaware, where MoneyGram is incorporated or the states where the Moneygram’s were purchased.


Melissa Murray I kind of love this case. I kinda love this case. Its so petty.


Leah Litman Honestly, like I would prefer the court heard more of these kinds of cases. I think that would be a great use of its time.


Melissa Murray I just love that Delaware is like, give me all the abandoned MoneyGrams. Like, I’m ready for this.


Kate Shaw Well, maybe this is like the anti Texas move instead of Texas basically filing suit constantly in the fifth Circuit or the district courts of the Fifth Circuit and occasionally directly in the Supreme Court. States that are not Texas could start filing suits. They could occupy the Supreme Court in ways that are much less damaging, destructive than what they would otherwise get up to. Okay. Anyway, other case from the first week that we thought we would just briefly mention, the court is hearing Arellano versus McDonough, which is a case about whether the one year statutory deadline for seeking retroactive disability benefits from the VA is presumptively subject to equitable tolling. That is, whether it can be forgiven depending on the equities of the case.


Melissa Murray So these are just like getting limber kind of cases. These are not big dogs, right? This is like hydrating. Stretching because Leah, what’s the big case this sitting.


Leah Litman The court is starting out the first week of the term with Merrill versus Milligan, which I think is the biggest Voting Rights Act case since the Supreme Court heard Shelby County versus Holder of the case where the court dismantled the preclearance regime of the Voting Rights Act Section five, assuring us we didn’t need Section five and the preclearance regime because we had Section two. Well, this case pointedly asks whether Section two of the Voting Rights Act is going to continue to exist as we know it, and it will be argued by former strict scrutiny gas dual Ross along with several other terrific advocates. But that is the good news. It’s kind of all downhill from there. So Section two of the Voting Rights Act prohibits election practices that result in a denial or abridgment of the right to vote on account of race. And Section two is often used for vote dilution claims. Vote dilution refers to instances where legislators draw districts in ways that dilute the voting power of some groups, and section two is concerned with drawing districts in ways that dilute the voting power of racial minorities.


Melissa Murray So let’s unpack for a minute how vote dilution claims work. So we have talked on the show before about Partizan gerrymandering, which is where legislators draw districts in ways that advantage a particular political party. And they do this through what’s called packing and cracking, which is to say they pack the members of one political party into a district or a few districts and or crack the members of that same political party by spreading them out into different districts to ensure that they will be in the minority in those districts and won’t be able to elect the candidate of their choice. And when that happens, a political party can win a majority of districts, even though they lose a majority of the votes in a state. So democracy.


Leah Litman Like I said, is it constitutional?


Melissa Murray Probably not.


Kate Shaw Probably not. And in addition to partizan gerrymandering, where, you know, districts are drawn in ways to advantage a political party, there can also be racial gerrymandering. And racial gerrymandering occurs when legislative districts are drawn in ways that dilute the voting power of racial minorities. And this occurs in very similar ways, right through packing or cracking, a legislature might break up voters of color into as many districts as possible, ensuring that they are a minority in all of those districts, which prevents them from selecting candidates of their choice and, you know, having political power and political strength that is roughly commensurate with their representation among voters. Or they could be packed into a single district and then spread out elsewhere. So there could be, say, one district with a majority of, say, black voters, where their population wide numbers would suggest that there would be like two or three majority black districts.


Melissa Murray And to be clear, racial gerrymandering, which the court is determined to be a justiciable issue, and partizan gerrymandering, which it’s determined, has not a justiciable issue for federal courts, sometimes overlap in interesting ways, because quite often race and political preference or preference for a particular political party will coincide. So sometimes it’s hard to tell whether you’re partizan gerrymandering or doing racial gerrymandering at the same time. So a little cagey there. But section two of the Voting Rights Act and vote dilution claims under Section two is designed to prevent all of this and specifically to identify those instances where legislatures could easily have drawn districts in ways that resulted in voters of color electing candidates of their choice. But instead, they created a disturbing plan that dilutes the voting power of voters of color. So again, imagine a district where a legislature cracked voters of color into many different districts so that there’s no district or fewer districts where voters of color could likely put together a majority or a majority coalition. And that’s essentially what happened in Alabama. Black Alabamians constitute over 27% of voters in that state, but they can only elect the candidate of their choice in one of seven districts, 14%. And given the demographic breakdowns where black Alabamans live, it would have been very easy for there to be a second district where black voters could have elected the candidate of their choice. And the plaintiffs here claim that the state’s plan created one rather than two minority opportunity districts by dividing, cracking the black population in the southern half of the state among several different districts.


Kate Shaw And this case, like lots of others, this term implicates the role of precedent and starry decisis. So Thornburgh versus jingles, which we’ve mentioned on the show previously, is the foundational vote dilution case. And there the court described a vote dilution claim as a claim that a certain, you know, law or practice or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives. So jingles identified three preconditions to the sort of vote dilution claim. So one, that the minority group is sufficiently large and geographically compact to constitute a majority in a single member district. Two that the minority group is politically cohesive. And three, that the white majority votes sufficiently as a bloc to allow it to usually defeat the minorities preferred candidate. So if these preconditions are satisfied, the court has to then go on to assess the totality of the circumstances to determine whether a districting scheme leaves minority voters with less opportunity than white voters to elect representatives of their choice.


Leah Litman So the states lead argument in Merrill versus Milligan is kind of straight up like, let’s just do it and be legends in the sense that it would formally kill vote dilution claims under the Voting Rights Act. The state says in order to establish a violation of Section two, a plaintiff must show that the state’s enacted plan can be explained only by race and racial discrimination. But that would require the plaintiffs to prove intentional discrimination. And yet the Voting Rights Act was enacted to provide protections against unintentional discrimination. And this provision of the Voting Rights Act was enacted in response to a Supreme Court decision that said only intentional discrimination was unlawful. And the Constitution independently prohibits intentional discrimination. So the Voting Rights Act was supposed to go beyond that. And in fact, they would actually make it even harder to establish intentional discrimination under the Voting Rights Act than it is under the Equal Protection Clause. It just truly makes no sense.


Melissa Murray The states alternative argument is where all of the action likely will be in this oral argument. It’s also the one that they featured at the state stage. This is one of those cases where the court put on hold a lower court decision that found a violation of the Voting Rights Act. The state’s argument is that to satisfy the first jingles precondition, a plaintiff must show the minority group is sufficiently large and geographically compact to constitute a majority in a neutrally drawn plan, and by neutral, the state means without regard to race. So the seat is basically saying, look, you have to show that a state would have drawn another district in which voters of color would be in the majority or majority coalition without ever considering anyone’s race. Like show that a map drawn only by considering things like contiguous territory, natural boundaries, municipal lines or whatnot would have resulted in another majority minority district.


Kate Shaw And this is wildly inconsistent with precedents. The court has held that satisfaction of the first jingles precondition requires a plaintiff to show that its proposed districts right, i.e. it’s the proposed district for voters of color would be part of the majority coalition are reasonably compact and or otherwise reasonably configured, but it has never suggested that a plaintiff has to proffer districts that have been drawn without any consideration of race. Right. Experts in these cases have understandably always drawn districts with the goal of showing there are compact, sensible alternative districts in which voters of color would be in the majority. But they’re not sitting down, generating random maps and asking whether, like a random map, drawing, simulation or software would produce a majority minority district.


Melissa Murray Again, who’s the real racist here? Obviously, the black Alabamans want to vote,.


Leah Litman Right?


Melissa Murray Would like to elect someone.


Leah Litman This is why I said it was the term theme. Right.


Melissa Murray Now, the reason why this argument is where the action is likely to be follows from a couple of things. So a majority of the court likely, probably definitely views any effort to create a majority minority district as constitutionally suspect, if not pese unconstitutional when drawn by a legislature. And so they’ll probably say, look, requiring plaintiffs to draw or to use race neutral means prevent Section two from considering race in the redistricting process. Because as we all know, this court does not see race because our Constitution is colorblind.


Leah Litman Drink two.


Melissa Murray That Ginni Tonic hits the spot. But this, too, would basically turn Section two into effectively reaching only intent. Personal discrimination since the court would be requiring plaintiffs to show that. But for race. The legislature would have drawn another set of districts. So that’s not really the law after.


Kate Shaw It’s literally what this amendment to the Voting Rights Act was designed not to do. To respond to the Supreme Courts.


Leah Litman It’s not the law, but this is the vibe.


Melissa Murray It’s a vibe. This is the vibe, Kate. The vibe is don’t be the real racist, Kate. By considering race at all, ever.


Kate Shaw 1982, Congress was the real racist, right? In allowing these effects test to be used.


Leah Litman And Chief Justice Roberts is the modern day Thurgood Marshall. Think about that for a second.


Melissa Murray Yes, that’s right.


Leah Litman Yeah. The implications of this case are huge.


Melissa Murray The Federalist Society is LDF.


Leah Litman Oh, God. Excuse me while I vom. Um.


Melissa Murray Drink.


Leah Litman Yeah, wow. The implications of this case are huge. They are about the representation of, you know, voters of color in the political process and the future of a multiracial democracy. You know, the Voting Rights Act is what made this country into a democracy. And the case, Beryl, is about whether Congress can prohibit racial gerrymandering or I guess whether some sort of racial gerrymandering is like constitutionally permissible or maybe required. You know, this is why I, like I joked that a term theme is whether democracy in multiracial democracy is constitutional. But this case is about the rules for conducting elections, like what makes elections democratic, what makes a democracy a democracy, and the rules about how political power can be obtained and should be obtained. And, you know, this term is just in time for spooky season and it’s fucking terrifying.


Melissa Murray We’ve already gotten rid of Partizan gerrymandering. We left that to the states and state courts, but they probably can’t do anything because this independent state legislature theory fanfiction that we’re going to bring up this term too, and now we’re going to get rid of racial gerrymandering and not hear those because we’re not real racist. So basically, we’re on a full on press to distort the F out of democracy, just like break it all down.


Kate Shaw Let’s just to be really clear, when we say we got rid of, we mean we invited all of it, right? So we got rid of our ability to police it. We said to the states they can do it all. They can partizan gerrymander. We are, you know, we may say they can racially gerrymander and yeah, like the distortion of the ability of the populace to actually translate their desires to representation and policy like I have. It feels pretty tenuous.


Melissa Murray But we, they just literally said that abortion rights should go back to the states for Democratic deliberation. Are you saying that that was all a farce, Kate?


Kate Shaw Could there be a connection between these two things?


Melissa Murray Could there be?


Kate Shaw Could there be?


Leah Litman My dog was so terrified, she just insisted on leaving the room.


Kate Shaw I saw she fled.


Leah Litman Yeah, she fled. She was like, I will opt out of this.


Kate Shaw Stevie take us with you, Stevie, please take us with you.


Leah Litman So now to the court adjacent news news segment alert Sammie Troll-ito and the YOL-ito-ettes , that is like what is happening in the lower courts following the Supreme Court’s lead.


Melissa Murray How about Yo-Lito’s?


Leah Litman Okay that one works too, Yo-Lito’s also works.


Melissa Murray Speaking of Yo-Lito’s, when we speak of your Leto’s, we can only be looking at Texas, or at least principally at Texas. There is another notable ruling out of Texas. So let’s discuss Judge Reed O’Connor’s invalidation of the Affordable Care Act’s preventative coverage requirement for prep drugs. So prep drugs are pre-exposure prophylaxis. These are drugs that individuals take in advance of sexual intercourse to prevent the transmission of HIV AIDS. And so he said that the ACA cannot cover these drugs on the ground, that requiring health insurance for them facilitates homosexual behavior. That is a quote, and violated the religious liberty rights of employers who object to LGBTQ equality and to homosexuality more generally. So this case highlights the looming challenge to other constitutional rights. That, again, is clearly in the wake of the court’s decision in Dobbs. Don’t tell Justice Alito, but definitely look at Justice Thomas’s concurrence there. And again. This is a strong start from the Yo-litos.


Leah Litman Judge Reed O’Connor is a big Yo-lito, so he is the judge who struck down the Affordable Care Act, also the Indian Child Welfare Act, as well as several Obama era regulations. And he also apparently was on the Federalist Society speaking circuit where he gave a presentation entitled The Future of Religious Liberty. And I guess this is the future of religious liberty sometimes. When I read Reed O’Connor opinions, I think is this Sam Alito Substack and it’s it’s a thought that’s crossed my mind.


Kate Shaw He literally he’s just like Sam Alito with like a trench coat on. And that’s that’s actually Reed O’Connor. So in addition to siding with these employers religious liberty objections, the opinion also finds that the individuals on the task force. Was that recommended that this prep drug be covered were what are known as officers of the United States. These are part time unpaid volunteers. But the opinion nevertheless found that they were both officers of the United States and indeed principal officers who had to be appointed by the president and confirmed by the Senate. Which is honestly madness.


Melissa Murray Math. It’s a mess.


Kate Shaw But that’s also in Sam Alito’s substack, a.k.a. read O’Connor’s opinion on this matter.


Melissa Murray Judge O’Connor did not stop there, though, so he had another doozy this week where he granted a temporary restraining order lifting a student suspension for sexual assault. And this is noteworthy because the student actually admitted to being a rapist. But O’Connor said that the process was flawed because of gender bias. And I just want to emphasize, the student said in the proceedings, quote, It was difficult for me hearing that I am a rapist again. But it is true and I am very sorry, end quote. The judge said that the hearing was biased because one of the co-chairs of the proceeding had written something about how men are more likely to act in certain socially improper ways, and for that reason, acquitted the student of a second incident.


Kate Shaw All right. So in more fallout from the last term, we wanted to discuss Coach Kennedy’s adventures post Kennedy versus Bremerton School District, a big case from last term. This was a case about the praying football coach. Recall that in that case, the coach argued that the school couldn’t fire him for coercing students into prayer. And we use that phrase considerably because those were the allegations in the case and those were the facts as dutifully recounted in Justice Sotomayor’s excellent dissent.


Melissa Murray But not in the majority opinion by Justice.


Kate Shaw Breyer, conspicuously absent from the majority opinion by Justice Gorsuch, which characterized the facts really differently.


Melissa Murray Private prayers.


Kate Shaw Turns out, in somewhat suspect ways. So after his big victory, the coach got reinstatement papers from the school, and while school started was instead, rather than actually resuming the job, he claimed to really wish to return to his instead up in Alaska, meeting with former Vice President Pence receiving engraved rifles at the American Legion Convention.


Melissa Murray As one does remember, the school district here had argued that this case was moved to, that the court shouldn’t decide it because there was no justiciable issue, because the coach, although he had been put on administrative leave, did not appear to want his job back. And the fact is, the court didn’t address this or didn’t seem bothered by it at all. And yet the facts have unfolded in ways that seem to bear out the school district’s account of things. He is in Alaska. He is not trying to coach football anywhere. And so, again, it really raises questions about whether the majority played fast and loose with the facts and indeed ignored facts that were inconvenient to its preferred understanding of this case. And Coach K, Coach Kennedy, not Coach Kavanaugh. Coach Kennedy responded, Where else on Fox News in an op ed basically saying that we’re trying to work it out so I can be back next year. But until then, until we work it out, I’m going to be on the conservative speaker circuit and getting rifles and whatever else one gets when one is on that circuit.


Leah Litman So that’s the fallout from Kennedy versus Bremerton School District. We also had some fallout from Nisarga versus Bruin, the major Second Amendment case in which the court basically told lower courts to just, quote, do some loose originalism when assessing a Second Amendment challenge. And so here, a district court just did some originalism and declared unconstitutional a federal law that prohibits people who are under indictment for certain crimes from possessing guns. The person in this case had been indicted for burglary and jumping bail. And this is what happens when originalist boxing is the law of the Second Amendment. For those of you who couldn’t make it through the difficult audio of last week, originalist hot boxing is where a judge goes into their chambers, closes the door, rolls up the windows, chokes up on Federalist Papers, and just asks themselves what the vibes are and does that.


Melissa Murray I’m just staring in Justice Scalia in Heller, because this had been addressed earlier.


Kate Shaw Known Squish. Justice Scalia.That’s kinda where we are, honestly, that that is kind of where we are, right?


Melissa Murray Right-o. Like, obviously liberal squish.


Kate Shaw It’s so bleak. Oh its so bleak. All right. Well, so let’s let’s try to take a turn. I don’t know if it’s a happy return exactly, but a turn of some sort, which is that we said we would.


Leah Litman Toocookoogachoo.


Melissa Murray What’s that you say?


Kate Shaw So we said that we would wait until Melissa was back to really discuss. So here we go. Right. So has Ginni Thomas been up to anything since we last recorded, as we alluded to at the outset of this episode? Yes, she has. So what have we learned about Ginni’s activities since we all gathered to chat?


Melissa Murray Well, we learned from The Washington Post that Ginni Thomas, in addition to sending text messages to Mark Meadows, was also pressing lawmakers to overturn Joe Biden’s victory, not just in Arizona, but also in Wisconsin. So two pretty big swing states. Weird, I guess. And we also know that the January six committee has reached an agreement for Mrs. Thomas to be interviewed. So. Yes, Virginia, there is a special committee.


Leah Litman So she was interviewed last week. She had prepared a statement reiterating her belief that the election was stolen. Super curious if she also repeated the bit that Joe Biden was about to be off a barge off Guantanamo Bay awaiting trial for treason. Like, I appreciate her commitment to this. Whatever it is before a congressional committee. So that’s something.


Kate Shaw So she also apparently insisted during this testimony that she never discussed politics or any of her post-election activity with her husband.


Melissa Murray And good enough for me. All good here. And the interview, right?


Kate Shaw I mean, look, we can stipulate that every relationship is different. We don’t know anything about their internal dynamics.


Melissa Murray But and I don’t want I don’t want to give the impression that wives are just simply appendages of their husbands. They don’t have independent thoughts, but the women do.


Leah Litman Have independent thoughts, which they share and talk about.


Melissa Murray It is just totally yes. It is so implausible.


Kate Shaw To me crediting her as an independent actor with lots of thoughts and activities, many of which we have learned about in the last few months, that she was this convinced that the election was stolen. Working this hard. By phone. By email. Who knows how else to lobby every government power holder that she could find to do something about this theft and yet never mentioned it to her husband. It’s just not credible.


Melissa Murray Ginni, who are you on the phone with? Just some folks in Wisconsin exactly like.


Leah Litman What did you do today, Ginni?


Melissa Murray Oh, made a couple of phone calls, wrote some text messages to Mark Meadows. Do you know him?


Leah Litman Exactly. I mean, but but seriously, like, think about when you ask someone, how is it going or how are things right? I’ll usually say something and then say, well, despite the creeping risk of fascism that we are facing. Right, because like people talk about what is happening in the world around them, particularly when they care about the future and fate of our country.


Kate Shaw Say what you will about Ginni. But she clearly.


Melissa Murray Cares. She cares.


Leah Litman Maybe she just cares a little.


Melissa Murray Too, too much. I think that might be like if Ginni Thomas was doing an interview. What’s your what’s your weakness, Ginni? I care too much.


Leah Litman But back to serious business. So we do need to rename our recurring Ginni Thomas segment, because when we were doing this, you know, last spring, etc., Ginni Tonic was the drink of the summer. That was.


Melissa Murray Refreshing.


Leah Litman And yeah, yeah,.


Melissa Murray But it’s. Not appropriate right now.


Leah Litman No, we’re in the fall.


Melissa Murray It’s not appropriate.


Kate Shaw It’s sweater weather.


Melissa Murray I think for Ginni Thomas cocktail hour slash sweater weather. It’s got to be a Hot Ginni Toddy. What do you think?


Leah Litman It’s decorative gourd season is start yourself hot Ginni Toddy and send a few emails.


Melissa Murray Text. Form text. Like form text. Remember, these were just mailed out mass texting. This is not anything specific.


Leah Litman Yeah, but don’t talk to your spouse.


Melissa Murray Definitely don’t talk to your spouse.


Leah Litman About the treason that the president.


Melissa Murray Make sure there is a wall between your different workplaces. Yeah.


Leah Litman Speaking of those workplaces, the other side of that wall. So last week we talked about the public remarks from Justice Kagan and the chief justice about the legitimacy of the court and the relationship between public opinion and the Supreme Court. And the reply guy on the Supreme Court, Sam Alito, decided to chime in and come for Justice Kagan.


Melissa Murray He’s really functioning as just Chief Justice Roberts anger translator I think.


Leah Litman Sam Alito is a messy bitch who loves the drama. Because, in a comment to The Wall Street Journal, Justice Alito said, quote, “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”


Melissa Murray Well guess what, friend? Lines have been crossed and not just by Justice Kagan. Like like the whole country has crossed the line, friend.


Leah Litman Right? Right. Like maybe your opinion in Dobbs crossed a line, maybe. Right. A Supreme Court justice just e-mailing some comments to The Wall Street Journal. Crosses the line. I feel like we’re like one week away from Sam Alito emailing The Wall Street Journal with some thoughts about Lizzo playing like Madison’s flute and like, you know, wanting his comments on that included, too. I mean, his.


Melissa Murray I feel like half the people who complained about that never knew James Madison had a crystal flute to begin with.


Leah Litman No, of course not. Of course not.


Kate Shaw Or knew that Lizzo was an accomplished flutist. I think people also.


Melissa Murray Everyone knew that. No, no, no. She’s always. She’s always played the flute.


Kate Shaw Of course we knew that. Of course


Melissa Murray We knew that.


Leah Litman But you think the people complaining about it knew?


Kate Shaw Many didn’t. Yes. No, I think a lot of people didn’t. Like complained anyway. I’m not saying they, but I think they somewhat genuinely did not realize that she is a trained classical flutist.


Leah Litman Yeah.


Kate Shaw In addition to being incredible at everything else.


Leah Litman So Sam Alito’s position is basically it is always improper, unfair and now apparently a breach of constitutional norms for anyone to criticize him or question his decisions like he views voicing concerns about the court as a transgression.


Melissa Murray This is like big Monarchist vibes, I have to say. I mean, I feel like King Charles might be on this tip, like mostly with regard to pens and other writing implements, but maybe also just general criticism.


Kate Shaw They do have a similar vibe, don’t they?


Melissa Murray I think so.


Kate Shaw Look, but to reiterate something that we mentioned last episode, lots of Republican appointees on the court have seen very fit to question the legitimacy of the court when they disagreed with the court’s rulings. So it’s a little rich for Sam Alito right now to be saying it crosses some, you know, heretofore, you know, never crossed line to be criticizing the legitimacy of the court. And you guys at email. I mean I’m so curious how he got this comment to the Wall Street. You first of all. But it’s telling that he picked The Wall Street Journal as the outlet to which he wanted to give this comment. But I’m just like, I thought you might pick up the phone and just called someone. You guys think he emailed, told someone at a cocktail party like run this? Maybe that was fun.


Leah Litman Yeah. Like he knocked back another one of those drinks and just shot off an email. I mean, okay, that’s. That’s my word.


Kate Shaw That’s I it went down. Yeah. Okay.


Melissa Murray I think it just goes to show like not even the justices are over last term. So if you’re not over it either, you’re in good company.


Leah Litman Indeed. So to wrap up, maybe time to underscore that the YOLO Court, it’s a thing now like it’s definitely a thing because I mean, we.


Melissa Murray Coined the term and we coined the term, but I mean, we really have to give props to the court for running with it.


Leah Litman Exactly. They’ve made it like really take off.


Melissa Murray I mean, they’re like, Leah, whatever you’re throwing, we’re catching, right?


Leah Litman So Nina Totenberg, NPR correspondent and former Strict Scrutiny guest, appeared on Stephen Colbert’s show to discuss her book Dinners with Ruth. And she said, quote, One scholar calls this the YOLO Court, and I appreciated that. That’s all I’ll say.


Melissa Murray I mean, I like it when you get your flowers, Leah Litman, and you deserve this one because you are so out there, so deserving. And speaking of the YOLO Court and fashion and the fashion of the YOLO Court listeners, it’s here. You asked. We heard you and we have answered. We finally have our new Strict Scrutiny merch. It launched on September 29th and it’s so fantastic. And if you’re really sad about the court, I can only say two words retail therapy. Console yourself about this new Supreme Court term that’s going to be as bananas as the last one by getting yourself some of our new merch, wearing it for the first day of term. While all of this is just going to unfold, at least you’ll know that you are wrapped up in a gorgeous 100% cotton made-for-you amazing tee that makes clear where your allegiances lie. No law, just vibes or YOLO Court and they’re fantastic. I haven’t gotten one yet. I’m very jealous, but it’s coming and I can’t wait. You can head to slash store to check it out. And again, the merch only lasts as long as the merch lasts, so get it while it’s hot.


Kate Shaw And one last thing before we go, Crooked is bringing you the election coverage you love to hit with crooked radio. Every weekend in October on Sirius XM Progress and on the Sirius XM app, join our lineup of podcast hosts, candidates, experts and more, including strict scrutiny as we break down all the issues that matter this November dove into the conversations shaping our current political climate and give the only 100% correct opinions in politics. You don’t want to miss this. Subscribe now and get up to four months of Sirius XM. See offer details at Sirius XM dot com forward slash crooked.


Melissa Murray Can I add one more thing?


Kate Shaw Yeah.


Leah Litman You do it. YOLO, right?


Melissa Murray You only live once. You only podcast once. So we love seeing our Strict Scrutiny listeners out in the wild. And I really had the pleasure of meeting at a picnic last weekend. My new friend Miles, who is the proprietor of Bubbles and Brew, which is like a mobile prosecco Sauvignon Blanc. Merlot like thing with like wine comes out of taps. It was amazing. I loved it. I just a mobile wine truck and Bubbles and Brew was at this mom’s picnic that I attended. And I met Miles, who was a Strict Scrutiny super fan. So, Miles, thank you for the ongoing flowing of prosecco. You knew that this term was hard and last term was hard its just all going to be hard. And you kept my cup flowing and I love it. Thank you for listening and thank you to all of you for listening. We really appreciate you.


Leah Litman That’s all we have time for this episode. Strict Scrutiny is a Crooked Media production hosted and executive produced by me Leah Litman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell with Audio Engineering by Kyle Seglin Music by Eddie Cooper. Production support for Michael Martinez, Sandy Girard and Ari Schwartz. And Digital Support from Amelia Montooth. You can find us on Twitter at Strict Scrutiny underscore and on Instagram at Strict Scrutiny podcast. Meet us back here next week for recaps of the first oral arguments of the term and bring those drinks.


Melissa Murray Drink.