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Kate and Leah break down the Supreme Court’s extension of a stay allowing for continued mail-order access to mifepristone, from the Court’s unconscionable failure to meet its own arbitrary deadline to the unhinged dissents from Justices Thomas and Alito. They also cover last week’s other legal news before speaking with Ari Berman, national voting rights correspondent for Mother Jones, about the devastating fallout from the Court’s ruling in the Voting Rights Act case, Louisiana v. Callais. Finally, Melissa speaks with Kenji Yoshino and David Glasgow about their book, How Equality Wins: A New Vision for an Inclusive America.

Favorite things:

• Kate: Kavanaugh Hegseth Patel Bar Cold Open (SNL); The Shadow Docket (Last Week Tonight with John Oliver); This Is Getting Dangerous, Jamelle Bouie (NYT); Lawyering Without Law (The Knight First Amendment Institute); Give Us the Ballot: The Modern Struggle for Voting Rights in America, Ari Berman

• Leah: Rock Music (Charli xcx); Sam Alito’s typos

• Ari: Blame John Roberts for Destroying the Voting Rights Act (Mother Jones); Race and Reunion: The Civil War in American Memory and Frederick Douglass: Prophet of Freedom, David Blight; Reconstruction: America’s Unfinished Revolution, 1863-1877, Eric Foner

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

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TRANSCRIPT

Leah Litman [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.

Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts today. I’m Kate Shaw.

Leah Litman I’m Leah Litman.

Kate Shaw And we are without now two-time New York Times bestselling author, Melissa Murray, yay.

Leah Litman That was a ‘yay’ for New York Times best-selling author and not for her not being here, to be clear.

Kate Shaw I hope that was clear, but in case it wasn’t, all the cheers for Melissa’s bestselling status and not for her absence. But yes, she has somehow managed to make the Constitution a bestseller, which means we all get to spend the summer Constitution maxing even more than usual. So huge congrats in absentia to Melissa.

Leah Litman James Madison could never.

Kate Shaw Never.

Leah Litman So today’s show is about Louisiana giving Texas a run for the main character slash villain of this timeline when it comes to the continued fallout from the court’s appalling opinion in Louisiana versus Callais and in its efforts to restrict access to abortion. For the post Callais conversation, we’re going to be joined by special guest and friend of the show, Ari Berman.

Kate Shaw But we’re gonna start today’s conversation with breaking news, including the latest developments in Louisiana’s effort to find another route for restricting access to Mifepristone after anti-abortion doctors failed to do that in FDA versus Alliance for Hippocratic Medicine. Put a pin in that case name, we will come back to it. So we’re going to start there. We will then cover the court’s opinions from last week and some opinions and developments in the lower courts and the executive branch. And after that, we will bring you our conversation with Ari. And of course, we’ll end with some things this week that weren’t awful, AKA our favorite things. Then we’re gonna bring you a great conversation Melissa recently had with her colleague Kenji Yoshino and his co-author David Glasgow about their new book, How Equality Wins: A New Vision for an Inclusive America.

Leah Litman But first up, the Supreme Court on the shadow docket. So on Thursday evening, the supreme court issued a stay that allowed mifepristone to remain available on the same terms that it has been for several years now. That is under federal law, it can be prescribed using telehealth and sent by the mail. It will remain available on those terms while litigation brought by the state of Louisiana plays out. Despite the Fifth Circuit’s efforts, Stanford Stormtrooper, Stuart Kyle Duncan’s efforts to give Louisiana everything it wants now. So that’s the good news, though only short term. But the court issued this stay in a pretty irregular way and the stay was accompanied by truly unhinged dissents from both Justices Thomas and Alito. Kate and our friend Steve Vladeck covered this in a rapid response conversation on Thursday, which is available on YouTube. But there’s a lot more to say.

Kate Shaw Indeed. So first, let’s talk about the strange delay that Leah just mentioned. This is so surreal. So surreal. Okay, we will explain. So after the Fifth Circuit purported to invalidate the FDA regulations that allow Mifepristone to be prescribed and sent without any in-person consultation requirement, the drug manufacturers, but actually not the FDA, whose regulations are at issue, asked the Supreme Court to stay the Fifth Circuits decision. Justice Alito, who is the circuit justice for the Fifth Circuit, then issued two short-term administrative stays, which are just these kind of short- term pauses to give the court a chance to kind of consider a request for a longer-term stay, and the second of these was set to expire last Thursday at 5 p.m. That meant the court, on its own deadline, needed to act by 5 p to either issue another administrative stay or act on the underlying application for a stay pending appeal. But the court did neither, as 5 p.m. Came and went. And let me tell you, the group chat was blowing up for us and many, many others, as we all waited to learn whether our overlords in robes would decide that people who want to get and use a super safe and approved drug, using a super-safe and approved method to terminate a very early pregnancy, would be able to do that, or whether Sam Alito could convince four others that no, they shouldn’t. Because that’s called democracy. Anyway, around 5.30, so 30 minutes of complete chaos later, the court finally did grant the stay pending appeal. That means, despite this half an hour of uncertainty during which providers and doctors and manufacturers and everyone was in complete and indefensible legal limbo, but didn’t really know what the law was, after that period of uncertainty, the court did grant this day. That is the good news, but that unreasoned stay order was accompanied by truly unhinged dissents by Juan Justice Thomas and Juan Justice Alito. So Leah, let’s talk about those.

Leah Litman Yeah, so before we do, just to repeat something you and Steve talked about on the YouTube rapid reaction, but I think it’s important for people to understand this period of uncertainty and the wondering around 5 p.m. Is entirely of the court’s own making. There didn’t have to be a deadline on when this administrative stay would expire, but Justice Alito created one. And then somehow even more egregiously, it seems like it may have been Justice Alita himself that then caused the additional delay. Because he was working on this truly unhinged writing that may have delayed when the court actually issued the order granting the stay. So this chaos and this new independent news source, Autonomy News, reported that in that period, there were actually doctors advising people that they couldn’t prescribe mifepristone, period, like at all, not just over telehealth, that that was all the court and Sam Alito’s doing. So, yeah, I mean, this is what their shadow doc can create.

Kate Shaw Yeah, Steve and I didn’t sort of speculate about that. We were, you know, asking about the delay. You know, was it just the two separate writings? Had someone gone missing the way Neil Gorsuch evidently had when the court failed to act as SB8 was scheduled to go into effect. But I also had this thought after Steve and finished recording, which was like, is it possible that someone was trying to talk Thomas and Alito out of these? Insane dissents and it just didn’t work. I mean, again, I don’t want to like ascribe too much like sort of good sense or good judgment to John Roberts, but maybe someone on that side was like, guys, are you sure? And there was a little bit of a back and forth or maybe there was like even crazier stuff that got taken out after intervention. Like, anyway, so I just hope that Jodi Kantor and Adam Liptak are on the case because I feel like there is a story here and we should know it.

Leah Litman Completely. So now onto these two truly unhinged dissents, which may have played some role in creating this delay. So first, Justice Thomas, as always, would go further, much further than any other justice. He penned a screed that seemed entirely uninterested in the court’s supposed legal standards that are supposed to govern a stay pending appeal, and instead use the opportunity to basically say, lock her up, like lock them all up, lock everyone up who is involved with abortion. It is. At least with respect to abortion medication because he said the entire enterprise violates the 1873 Comstock Act. Regular listeners will recognize that law. This is the Victorian-era law that bans the bailing of obscene materials and that Project 2025 has advocated reviving as way to ban abortion nationwide. This was one of the legal theories in the previous medication abortion case, FDA versus Alliance for Hippocratic Medicine. So under this theory, the idea is courts could essentially just revive this law to function as a nationwide abortion ban without Congress having to pass a new one. And Justice Thomas was like, yes, let’s do that.

Kate Shaw Absolutely, and just to say, you said that essentially would render illegal all mailing of abortion drugs everywhere no matter what the status of the state law is. But I also think, and we’ve talked about this before in the show, it might go further than just abortion medication because if medication abortion is like obscene material under the Comstock Act, so too are the surgical implements and other medical devices used in procedural abortion. So you could very easily try to revive this. Unconstitutional, to be clear, zombie law from the late 19th century, basically used to lock up hysterical women who advocated reproductive autonomy, like that literally is sort of the origin story of the Comstock Act, this sort of Victorian era purity law that is still on the books, just waiting to spring back to life at the hands of someone like Clarence Thomas. But yeah, it could well be used as a nationwide abortion ban as to kind of all forms of abortion.

Leah Litman Yeah, so he wrote, quote, applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise. They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes, end quote. This is a judge on the nation’s highest court who granted the president sweeping immunity to commit crimes, now declaring that the provision of medical care is a criminal enterprise and describing that as committing crimes. Also, sir, this is an Arby’s, by which I mean a stay application in an Administrative Procedure Act case. And yet he appears to have charged and convicted these parties in the criminal legal system of his own mind. To call this intemperate, injudicious would be a gross understatement. Also just wanted to note, he did not write this in the FDA versus Alliance for Hippocratic Medicine case. In 2024, which was decided in the summer leading up to the presidential election. Could it have been because that would have been a really inconvenient time before the court nullified the Voting Rights Act to inject the idea of a judicially ordered nationwide abortion ban? Perhaps one is left to wonder.

Kate Shaw That is such a great point because of course, we do have an important election looming, but hey, three weeks ago, the court made it a lot harder for the Democrats actually to make meaningful gains in the November midterm elections. And so maybe Thomas is no longer worried about the electoral consequences of injecting a relatively unpopular issue into the debate and political landscape just months out from a really important election because if it’s not gonna be a genuinely free and fair and representative election anyway, like just do it and be a legend. I was, I was actually stunned by this opinion. Like the case, just to freelance like this and to accuse drug manufacturers of crimes was just something I think more extreme than I’ve even heard. Justice Thomas, who, as you said, is always kind of the go further, most extreme voice on any case.

Leah Litman This was like Clarence Thomas, not Clarenced Thomas. It just was not well done. It was unhinged even for him.

Leah Litman [AD]

Kate Shaw So it somehow though got even worse because enter Alito, or I’m actually curious, Leah, which you found worse. I found it a pretty hard choice. I found Alito’s kind of less unhinged. Thomas was really unhinge, but also more hackish and somehow more chilling. I don’t know if you had to choose.

Leah Litman If I had to choose, gosh, this is truly a Hobson’s, Sophie’s choice. They’re just both awful in very different ways. So I’m going to cheat and just say the entire Supreme Court is theirs.

Kate Shaw Fair enough. Okay, but let’s talk about the Alito writing. So out of the gate, he accuses the drug companies of, quote, a scheme to undermine our decision in Dobbs versus Jackson Women’s Health Organization. So reminder listeners, Dobbs pretended to rest on principles of democracy when it that it was overruled.

Leah Litman See you don’t know her.

Kate Shaw So he claimed back then to be returning the question of abortion to the state and the democratic process, but it was crystal clear in Dobbs and it is even clearer here that the only democratically legitimate choices and the only ones that Sam Alita recognizes and that the law should protect are the choices made by legislatures in places like Louisiana and that is choices to restrict or prohibit abortion. And their democratically legitimate choices are being undermined by a federal law regime in which abortion pills are available by mail, also asterisk, the product of democracy and actually the kind of law that is federal law that’s supposed to be supreme but details. So the answer is to eliminate that access, including in states that have through their own democratic processes chosen to still protect abortion in a post-Dobbs world. So that, you know, is what the kind of mind of Sam Alito has produced here. In his view, and this is evident in the writing, there is essentially a conspiracy between the FDA and maybe the Biden administration somehow still pulling the strings to make it impossible for states like Louisiana to enforce their abortion bans. Now, Alito’s opinion did not rely on Comstock as Thomas had, but it basically did accuse these parties of crimes. If people in states like Louisiana obtain and use their drugs, Alito writes, quote, They, that is the drug manufacturers, cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes. He also ranted about shield laws, which were not an issue here, very judicious to weigh in on them, and took some gratuitous swipes at New York governor Kathy Hochul, also cited in passing Secretary Beard-Juice as additional support for the kind of dubiousness of the legality, I guess, of the FDA regulations in general. I’m still not totally clear what he was doing with that, but… That’s, I think, the sort of highlights, lowlights of the Alito opinion.

Leah Litman Yeah, I mean, just to add just a few things, because this was really out there. He doubled down on this idea that democracy only means anti-abortion and restricting women’s rights. This is something he has gestured at in previous cases, a case out of Montana where he suggested that that state’s judicial bypass law maybe violated the federal constitution in allowing, you know, minors to occasionally obtain abortions without their parental consent. Also, I read it as kind of taking a swipe at the FDA for not moving quickly enough and acting to restrict medication abortion. And I think that’s also how the FDA read it because soon after they posted on Twitter, don’t worry daddy, we’re working on it. So basically, it said the Supreme Court’s order issued today maintains a status quo, but the FDA will press forward to complete its science-based safety review. Again, the FDA. Here is just acting like complete cowards. It’s clear they don’t want to do anything before the midterm elections. They couldn’t bring themselves to actually file a stay application seeking to stay the Fifth Circuit, but neither, right, could they bring themselves to actually act on potential additional restrictions from mifepristone in the lead-up to the midterms. Just complete coward, craven behavior like the Supreme Court itself in LA. So. Those were low lights. There was a brief shining moment in this Alito separate writing, which included the following glorious footnote, which at the time we are recording has not been corrected. And it is clearly meant for our co-host, Melissa Murray.

Kate Shaw I’m so sad she’s not here to hear us talk. I know, I know. We may have to come back to it next week. But sorry, go on. Tell the people what the footnotes said.

Leah Litman Cites some papers that were filed in that previous medication abortion case Alliance for Hippocratic Medicine Only it captions the case as Alliance for Hippocritic medicine versus FDA. I’m not sure whether to take this as a Freudian slip.

Kate Shaw Mm-hmm

Leah Litman Or as a sign that Sam Alito does indeed hate listen to the podcast.

Kate Shaw Or at least his clerks do.

Leah Litman Or write a sign that there is a clerk sending a signal for help.

Kate Shaw Right. This is like an S.O.S. From inside the Alito chambers. I don’t know, but it was, yes, this tiny little glimmer of sort of joy and a dark humor in that otherwise truly appalling sequence of events and words that emanated from this Supreme Court. So I think that nothing good is going to come from this FDA internal review that Kennedy was like so excited to talk to Josh Hawley at a hearing some months ago about. So like that is ongoing. It could well be, and this is something that Vladek mentioned in our rapid response video, as soon as we get past the midterms, the FDA announces itself that it’s rescinding these kind of loosened regulations allowing for telehealth, and then this case goes away. But for now, you know, the bottom line is Mifepristone, by mail, still okay. And the Supreme Court, like, definitely still not okay, and less okay even than before Thursday of last week.

Leah Litman I know, it keeps getting worse. And don’t worry, it got even worse from there because shortly after the Supreme Court did the right thing, even though two justices said some crazy things in the mifepristone case, it followed that up with a pretty horrifying order in a capital case out of Texas. So in this Texas case, Guerrero versus Busby, the Fifth Circuit had stayed, paused the execution of an individual who an expert had concluded was intellectually disabled. This is the famously liberal Fifth Circuit that had granted this brief delay to allow some additional inquiry into whether Busby was intellectually disabled, and therefore could not constitutionally be executed under the Eighth Amendment. But that short delay was evidently intolerable for the majority of the court, which lifted the Fifth Circuit’s stay without a word of explanation. Justice Kagan would have denied the stay, but didn’t write. Sorry, that was one additional note about that Alito dissent. It bitched about this unreasoned order issued by the Supreme Court. Again, sir, you were simultaneously about to issue another unreason order, also you’ve been doing this every way to Sunday, but nevermind. But in this Texas Capitol case, Justice Jackson, joined by Justice Sotomayor, penned a dissent quietly excoriating the majority that ended with this, quote, In capital cases, we rarely intervene to preserve life. I cannot understand the court’s rush to extinguish it, much less in the circumstances of this case.

Kate Shaw Right, if you need any further evidence of just how extreme this Supreme Court has gotten, it decided that the Fifth Circuit had been too lenient in the capital case of a scheduled execution of an individual who might not constitutionally be eligible to be executed, at least under the court’s current Eighth Amendment cases. And just a brief delay to figure out whether the constitution permitted this execution to go forward at all was intolerable to this court. It was truly stunning. So let’s shift to some news from the lower courts and also just kind of a general corruption watch, which is obviously a feature that we could run every week and just an especially kind of banger of a week on that beat. Okay, first, news from lower courts. We wanted to highlight an opinion that was issued last week from a Rhode Island district court that was one of the most scathing indictments of federal government’s lawyering that I at least have read in a judicial opinion. So the case captioned in Ray administrative subpoena to Rhode Island hospitals. Involves a DOJ effort to get patient records from the largest hospital in Rhode Island that provides gender-affirming care to minors. As part of an ostensible fraud, in just like the biggest scare quotes, because obviously this has like fuck all to do with fraud, but an ostensibly fraud investigation, DOJ had demanded the birth dates and social security numbers and addresses of every minor patient who received any kind of gender- affirming care over the past five years in this hospital. This demand came via an administrative subpoena, so just issued from the Department of Justice, that DOJ then tried to enforce in a Texas district court, which granted DOJ’s request for enforcement.

Leah Litman Most egregious forum shopping ever. The Rhode Island hospital and a child advocate representing the informational privacy interests of the patients then moved to quash the subpoena. And the court with a Trump appointee by the name of Mary McElroy granted the motion to quosh the subpena. The case presents some complex questions about standing administrative subpoenas and the Food, Drug and Cosmetics Act, but what’s not complicated is how appalling the court found the government’s conduct to have been throughout. A few highlights. Quote, the United States Department of Justice possesses immense prosecutorial authority and discretion as citizens we trust that federal prosecutors when wielding this awesome power against a state, a company or certainly against vulnerable children will play fair and be honest with its counterparts and the judiciary. DOJ has proven unworthy of this trust at every point in this case. Regarding some of the representations that DOJ made to the court, the court called them, quote, clearly misleading, if not utterly false. She also said, quote this reckless disregard for the duty of candor owed to a federal court is appalling. And she made clear that, at least in her courtroom, the presumption of regularity no longer a thing.

Kate Shaw I mean, she gave details, she named names, it sounded as though DOJ had just really like straight up lied about how its negotiations with the Rhode Island hospital had proceeded, why it went to Texas when it did. I mean if you want more, and she goes into a lot of detail and says the things that were in the quotes Leah just read, but in a bunch of different ways, we would highly encourage folks to just read the thing, which just has a lot more fire than your average case titled in-rate administrative subpoena. And just like kind of more fundamentally as to the underlying issue in the case, It is just. A reminder that this administration’s war on trans kids and their lives and their health is relentless. It is pathological and sadistic and we just cannot allow ourselves to get inured to it. It is scandalous and sort of we should be talking about it all the time.

Leah Litman It also has this similarity to the medication abortion case in basically trying to hijack or leverage one state’s policies and political views in order to impose them on every other state Contra federalism, of course, there is a historical analog for this It was the fugitive slave laws when slave states effectively forced Anti-slave free states to help them enforce their laws on slavery, but that is

Kate Shaw No, that’s exactly right, right. So you have a sympathetic forum in Texas that has the same anti-trans agenda that you do executive branch of the government or DOJ here. And you can try to use that against a Rhode Island hospital that consistent with Rhode Island values and law is providing gender affirming care to minors. And yeah, I think the fugitive slave analogy is really powerful actually.

Leah Litman So we had some big DC Circuit arguments last week. There were a couple of ones we had wanted to talk about. One involves the administration’s campaign against Senator Mark Kelly from Arizona. Recall that the Justice Department tried and failed to get a grand jury to indict Kelly and the other members of Congress for a video they made reminding service members of their obligation to follow the law, i.e. Not to follow unlawful orders. But you may not recall that the administration is still going after Kelly, not criminally, but at least at the moment, they are trying to reduce his retirement rank and pay. He is a retired Navy captain, as well as former astronaut, so he’s still entitled to pay. A lower court preliminarily enjoined Keg’s breath from going after Kelley this way, and the D.C. Circuit seems inclined to agree that the First Amendment doesn’t permit this sort of blatant political targeting and retaliation that Hegseth is engaging in.

Kate Shaw And sort of a similar argument unfolded in the D.C. Circuit involving the consolidated appeals in the challenges brought by several law firms to the administration’s wildly unlawful executive orders targeting them. Firms here, I think, are Perkins and Wilmer and Jenner and Sussman, and I think Mark Zaid as well. You know, there was a consolidated oral argument, but there were some separate briefs on some slightly firm, distinct issues. But in any event, this was the argument last week. And DOJ, remember, actually initially said it wasn’t going to appeal. Its resounding district court losses in these cases, but then changed its mind and evidently decided it wanted to just go big and lose big in the DC circuit instead. So Paul Clement argued for the firms. I listened to a bit of the argument, and I think he is clearly, and the firms are clearly going to win. The panel was Srinivasan and Pillard and Rao. And I didn’t hear enough to know where Rao was. I actually didn’t her ask any questions. I’m guessing nowhere good, because this is a case involving the Trump administration. But I still think the law firms are definitely going win and the big question is Will DOJ decide to leave it there or try to get SCOTUS to take this up?

Leah Litman So, some news from DOJ slash Corruption Watch. Later this week, Trump’s personal lawyers and Trump’s DOJ lawyers are supposed to file briefs in the case they are ostensibly on opposite sides of about whether the Internal Revenue Service has to pay its boss, that would be Donald Trump, $10 billion. If that sounds insane, it is, and we all need to be talking about it.

Kate Shaw And we all need to be talking about it especially because this week we learned that in addition to this insane and possibly collusive lawsuit or maybe the whole point of this insane and possibly inclusive lawsuit is that Trump and the IRS, Trump and his IRS are ostensibly maybe or reportedly in settlement talks. So we learned at mid last week and then late last week ABC reported that those talks might be moving toward an agreement in which Trump drops this lawsuit. And then Trump agrees to create a $1.7 billion fund for Trump’s friends and family and J6ers.

Leah Litman So much better. Also, this is just going to make another section of the 14th Amendment great again, which doesn’t bar insurrectionists from holding public office. Not that one, but does bar paying them buck tons of federal money. But really, this is happening. Those are the.

Kate Shaw Those are the unenforceable parts of the 14th Amendment.

Leah Litman Thanks, Kodas. According to ABC News, quote, this fund would be to compensate allies who claim they were wrongfully targeted by the Biden administration. The reporting continues, quote. The commission overseeing the compensation fund would have the total authority to hand out approximately 1.7 billion in taxpayer funds to settle claims brought by anyone who alleges they were harmed by the the Biden administrations. Weaponization of the legal system, including the nearly 1,600 individuals charged in connection with the January 6th Capitol attack, as well as potentially entities associated with Donald Trump himself.

Kate Shaw I mean, words kind of fail. This is absolute madness. We have to keep talking about it because it’s one of these things that seems so comical and absurd that like, what can you say? But also like it does feel like the only thing that could potentially stop them at this point is public outrage at just the unbelievably rank corruption on display here. And so we will keep talking about it and I really hope that the print and television and other press keeps the focus on this because I can’t imagine anyone at DOJ who continues to have a shred of dignity or integrity going along with this. And maybe the answer is there’s no one left like that, but down, down, you know, in the actual ranks, like I do think there still are. And maybe all of those people will be completely boxed out of this kind of, you know crafting this deal and announcing it, but it just feels like internal pushback is super important and public pressure is super-important. So. In that vein of kind of what is happening inside the halls of DOJ, there was some pretty interesting reporting last week from CNN that last year, just after he took on the role of deputy attorney general, Todd Blanche, who of course is now the acting attorney general auditioning for the job full-time, was told by the top ethics lawyer at DOJ that he needed to recuse in cases involving Donald Trump and his personal capacity. Because of course he is Trump’s former personal lawyer. That would presumably include the IRS lawsuit. So I’m sure that Todd Blanche is staying very far away from that firewall for sure. Emile Beauvais, who was then the number three at DOJ was evidently told the same thing by the ethics folks at DO J. And I mean, you know, again, it’s like, it’s easy to just feel like everything is hopeless. But if we are ever in a moment of reckoning, this is the kind of thing that I think can and should really matter that they were told that there are receipts for their having been told. That it would be intolerably corrupt and possibly a violation of DOJ policy and more to continue to participate in these kinds of matters. And they did that anyway. And so I do think this kind of reporting is really important. So, you know, just because you don’t make any headway with internal like efforts to remind of the continued force of law inside DOJ at the moment. You’re also I think making a record and that record could I think in the sweep of history matter. So that feels relevant to the current conversations about this settlement with the IRS.

Leah Litman Yeah, also in DOJ corruption watch the Times reported last week that DOJ is dropping bribery charges against indian billionaire gautam adani After adani hired former trump attorney robert gyufra In addition to lawyering up with trump’s former lawyer adani evidently pledged that if the prosecutors dropped charges He would invest 10 billion dollars in the united states economy. The figure just keeps coming up 10 billion There’s something about it. Yeah, exactly also creates 15,000. Jobs in response to questions the parties involved in the negotiations are insisting that these money and jobs Promises have nothing to do with the decision to drop charges sounds good to me Maybe you have a marshall notarize that and we can all move on perfect And that wasn’t it because also this week You know boeing and toyota apparently each donated a million each to help fund a new reality tv inspired show starring Secretary real-world road rules challenged Sean Duffy with his family on a road trip. But the grift and corruption and rot are just so deep and disheartening. I don’t know what else to say beyond we need to be talking about this and how this is just a highway robbery of the public fisc and American people and taxpayer money left and right. One additional thing, maybe give Jamie Raskin the gavel so we can start investigating some of this stuff. That would be good.

Kate Shaw That’d be a good step. Yeah. Okay, and we have been doing the quote without context at the end of the show, but because we have guests at the ended the show we’ll maybe play this quote without contest here. So let’s roll this from Cash for the Dollar Sign Patel’s recent appearance in the Senate.

Clip I want to start by recognizing important work by the FBI to crack down on fraud. In one case, the FBI helped bring justice to multiple former business owners who orchestrated a $205 million Medicare fraud scheme on the American people. And those business owners filed nearly a million false claims for services that they never provided any patients, literally stealing from American taxpayers and preying on vulnerable people. Who were suffering from Alzheimer’s, and dementia, and substance abuse. But thanks to the FBI, those crooks were held accountable. So I just wanted to ask you today if you would pass along my gratitude to those FBI agents for their tireless work bringing those criminals to justice.

Clip I will ma’am, the fraud work is often overlooked and I greatly appreciate that.

Clip And very important, but I do have to say, unfortunately, President Trump, the guy who says he’s going after fraud, granted this man Lawrence Duran clemency last June. He was set free and let off the hook for the $87 million he owed in restitution.

Kate Shaw And that’s Senator Patty Murray questioning him. And then the final piece of news I wanted to just mention has to do with elections happening tomorrow in the state of Georgia. So if anybody needed additional reminders of the importance of state courts, the post-Callais timeline, which we’re gonna turn to in a couple of minutes, should be that reminder. The Virginia Supreme Court decision, for example, is the reason Democrats won’t have up to four, maybe five, additional House seats after this next election, which could easily be the margin of control. And more deeply, with the kind of, you know, setting on fire of the federal enforcement scheme for participatory democracy, state courts are gonna be really important guarantors of the right to vote and to participate. And so state courts just could not be more important right now, which is why we wanna highlight the judicial elections happening in Georgia on Tuesday. So that’s tomorrow, if you’re listening to the show, when it drops. There are two awesome progressive candidates, former Democratic State Senator Jen Jordan and litigator Miracle Rankin, who’s a former president of the Georgia Association of Black Women Attorneys. They are both challenging sitting Supreme Court justices. So these are nonpartisan elections, but these are both progressive would-be jurists and they have both made promoting democracy and participation a key campaign issue. It would be a huge deal if they were able to oust these sitting jurists. And you know, it’s a really important court in a really important state. There are also lower court elections happening on Tuesday in Georgia. So if you are an eligible Georgia voter, do not sleep on these races.

Leah Litman So back to the Supreme Court. On Thursday, the court released two opinions and argued cases, both were unanimous. The first Montgomery versus Karibay Transport was written by Justice Barrett. This case is about whether the Federal Aviation Administration Authorization Act, which preempts a lot of state laws related to the trucking industry, preempt the claim that one company negligently hired another to transport goods. That was the claim brought by the petitioner plaintiff who was driving his tractor trailer when he was struck by a veering Mack truck and badly injured. The general preemption provision of that statute has several exceptions, including what’s known as the safety exception. And the court here found that this claim fell within that exception and therefore was not preempted, i.e. It could go forward. So Justice Kavanaugh joined by Alito wrote a separate concurring opinion.

Kate Shaw And the second unanimous opinion we got, Jules versus Andres Ballas properties was written by Justice Sotomayor. It involved the Federal Arbitration Act, so FAA rather than FAAA in the preceding case. This case was about whether a federal court that has stayed a claim in a case under the FAA. So it had a case, it stayed a claimed to allow arbitration to proceed, whether that federal court retained jurisdiction to confirm or vacate a resulting arbitral award as to those claims after the arbitration was over. The court held that. A court did retain jurisdiction under those circumstances. It had jurisdiction in the first instance, it issued a stay and that didn’t like divested of jurisdiction after the arbitration is done. So those are the two from last week. We’re expecting another round of decisions Thursday of this week. And we’re likely moving into the kind of heavy big decision season starting in the next couple of weeks. The biggest cases I would say birthright citizenship, independent agencies, right? The Fed and the FTC are likely not expected until late June. Um, but we also have important election cases, including early voting and campaign finance, the trans student athlete cases, several important immigration and administrative law cases. So those are going to start coming, I’m not quite sure when, but definitely in the next couple of weeks. Help. Yeah. This is, this is the bad time. I mean, it’s all the bad times, but the sort of really bad decision season is nearly upon us.

Leah Litman For our next segment, we are grateful to be joined by friend of the show, Ari Berman, who’s an incredible voting rights reporter over at Mother Jones and who can help us make sense of this post-Callais landscape and maybe assist us in ordering our rage. Ari, welcome back to the show.

Ari Berman Hey guys, great to talk to you. No one I’d rather discuss the death of democracy with than you two.

Kate Shaw Slash, read that with slash, find a way forward. Yeah, Ari, when we exchanged messages about him coming on, we’re like, it could be therapy for both of us. So, and hopefully for our listeners a bit as well. So, Ari we are a little under three weeks from this decision and it feels like the aftershocks just keep coming. So you follow this all incredibly closely. Can you just give us sort of a broad overview of what is going on across the states from this like three weeks out vantage?

Ari Berman Yeah, Republicans are just going state by state by State across the South, just dismantling majority black districts with really a stunning amount of speed. I mean, first it was Tennessee, basically a week after Callais, eliminating a majority black district in Memphis that honestly had existed as a congressional district since 1923. They split it up into three different districts that run 200 miles into rural areas, connected it. To one county that was the birthplace of the Ku Klux Klan, another county that still flies the Confederate flag as part of its county seal. So that just kind of gives you an indication of what they’re doing. After Tennessee, Alabama redrew its congressional map. We thought this was going to be impossible because they were under a court order not to do redistricting through 2030. Yeah, so much for that. Because they had intentionally discriminated against black voters, but the Roberts Court in yet another Basically unexplained shadow docket opinion just completely left let them off the hook Let them redraw their voting maps a week before the primary. So

Leah Litman Can I just pause on that one and I will let you continue because we did a YouTube rapid reaction on the Supreme Court vacating the various lower court opinions that had required Alabama to, for example, have two majority minority districts and also had found they engaged in intentional discrimination. The hypocrisy here, impossible to overstate. One, they told us less than two weeks ago in Callais that the Louisiana case, totally different than the Alabama case. And two… The lower court said Alabama had engaged in intentional discrimination, which Justice Alito in Callais told us was still the focus of the Constitution and the Voting Rights Act. Turns out that’s not quite right either.

Ari Berman Yeah, I mean, they just basically ripped up every precedent, every norm to allow Alabama to do this. And I mean to me, this was even more brazen than Callais in putting its thumb on the scale of the midterms because Callais was bad enough and that they let Southern states have enough time to redistrict. But here they were basically green lighting explicitly Alabama’s vow to redistricting. I’ve never seen them use the shadow docket in this way. I mean, not to get too much into the weeds, but. Alabama requested a decision by Thursday of that week, and the Supreme Court made their decision one hour after briefs were due on Monday evening, which have you guys ever seen them do something like that? I mean, it’s really astonishing the speed in which they intervene on behalf of Alabama. So.

Leah Litman So we saw them do the opposite in the medication abortion case.

Ari Berman Exactly. So basically a map that has already been judged to be intentionally discriminatory against black voters went back into effect. Louisiana essentially did the same thing as Alabama. They went further and just suspended their house primaries altogether when 45,000 people had already voted and essentially put back into place a map that also eliminates a majority black district that was also found, like in Alabama, to be discriminatory under the Voting Rights Act. So basically, Alabama, Louisiana, both using maps that will eliminate a majority of black district in a way that was already found to have violated the VOTING RIGHTS ACT to away.

Kate Shaw And where the only federal courts to have on the merits asked the constitutional question, right, found that there had been unconstitutional discrimination. The Supreme Court didn’t like review and, you know, reject that finding. They just basically said put the maps into effect anyway. Am I reading that right?

Ari Berman Yeah, I mean, this, when both of these states, Alabama and Louisiana, were subject to really, really thorough reviews by the lower courts. And to some extent, they dealt with this in Louisiana, but I don’t think they’ve ever adjudicated the map that they put in place previously. Not to mention in Alabama, just completely steamrolling. A 571 page opinion by a district court that included two Trump appointees, by the way, who didn’t actually seem very pleased by what the Supreme Court did and actually have ordered new briefing in that case. And so they could subsequently block the map. It’d be fascinating. I mean, my prediction, I don’t know what you guys think, is that the Supreme courts get invoked per cell. Of course. So that blocked the lower court from issuing that ruling saying it’s too close to the election when of course they put that map into place a week before the primary. I’m fully expecting that to happen. But anyway, on to South Carolina. I’m still going through the revival of Jim Crow states. So South Carolina, they initially rejected the South Carolina Senate.

Leah Litman It’s got to be Sam Crow, like Jim Crow Lido states at this point. And just hearing you talking, I’m sorry. I’m now going to start calling Louisiana versus Callais, like Callais Clucks clan or the Clucks Callais. Like it’s just stunning. Like the speed.

Ari Berman Yeah, it’s stunning. So South Carolina was interesting because they kind of pulled in Indiana at first. The Republican controlled Senate rejected the gerrymandering and actually said it was kind of fascinating listening to the leader of the Republican controlled Senate basically say, we’re already the most gerrymandered state in the country. We already had our maps upheld in Alexander of first NAACP, another terrible decision by the Supreme Court that in some ways led to Callais. But nonetheless, he’s basically saying, we already have a gerrymander map that the Supreme court upheld. We don’t need to pass a new one. And what happened was, of course, like in all cases, they’ve caved. To Trump, they called a new special session where they can pass this map. There’ll be a 7-0 map eliminating the district of Jim Clyburn, which I think is really, really symbolic. Clyburn is. The first black member of Congress elected in South Carolina since Reconstruction. He’s the only black Democrat elected in state history to the US House. Obviously he occupies a huge position in the Democratic party, but I mean, this is quite literally a return to Jim Crow if they eliminate this district because you’re talking about a situation where the last black member of Congress in South Carolina before. Clyburn left in 1897 when South Carolina rewrote its constitution to disenfranchise Black voters. And there wasn’t another Black member of Congress for 100 years. And so they’re going back to a situation where a state that is one quarter Black is going to have no Black representatives. And I think that’s indicative of what’s happening across the South. So that’s kind of where we’re at now. Mississippi is going redraw its district probably for next year to eliminate Benny Thompson. The only black member of Congress there. Georgia’s called a special session to probably eliminate multiple majority black districts. Interestingly enough, Georgia called the session now so that if they elect a democratic governor in November, they couldn’t veto new maps for 2028. So this is kind of a lame duck power grab by Brian Kemp. So just all across the South, a majority black district are being dismantled with stunning speed.

Leah Litman Yeah, no longer districts. Dickstricts is what I’m going to just refer to them as.

Ari Berman Leah’s just had it.

Leah Litman I’m so fucking over this.

Ari Berman She just completely. She’s completely had it at this point.

Leah Litman I’m so fucking over this, and I’m just so tired of the resistance to wholesome embrace of Supreme Court reform and people getting the extent to which the court is a huge ass problem for multiracial democracy. Like, they do not deserve any respect or deference. like. You just need to describe them in the absolute brazen, partisan, hackish terms that they already are.

Ari Berman I think that’s what’s really become clear in recent weeks. I mean, for many, many years, as you guys have covered, they have issued decisions that helped the Republican Party. There’s no doubt about it. But the extent to which they’ve put their thumb on the scale of this election is really extraordinary. I means, it’s kind of like the 2026 version of the immunity decision. I think they are inserting themselves in a totally unnecessary in an unprecedented way, directly on behalf. Of the Republican Party. It’s basically like they said, we know that Republicans are going to lose the House. We know that Donald Trump is going to be held accountable finally. And what can we do to change that?

Leah Litman That would undermine our immunity opinion, so we have to intervene.

Kate Shaw The entire race for the house. And remember, Mark Elias reminded us of this right after the decision. Like they asked for this case to be re-argued and like they invited this case because they wanted this opportunity to do exactly what they have done. And this is the predictable fallout from it.

Ari Berman Yeah, there was no reason for them to rehear the case. Even if they decided it in this way, there was not reason for then to issue it in April. It went against all of their stated precedents about not changing election laws in the middle of the election. Then they have followed that with just completely partisan actions in Louisiana and Alabama rushing these decisions to take effect on the shadow docket so that these states can maximally gerrymander. So I do think we are in a new phase. Of electoral warfare by the Roberts Court, and I think people have to understand that this is not just a conservative court, it’s a rabidly partisan court, and i think people understand there’s a six to three majority, right? It’s a conservative majority, they’re usually going to do conservative things. These are not them doing conservative things, these are them doing like outwardly partisan things that lead to a much more authoritarian form of government and to me that is really a breaking point in terms of how the public views the court and I think it’s really going to accelerate. These calls for Supreme Court reform that you guys have been talking about. I mean, I don’t even think Democrats right now are talking about national legislation to combat this decision because they just feel like the court would strike it down. So before you talk about a ban on partisan gerrymandering or a new voting rights after any of those things, you have to figure out a way to change the composition of the court or else this course just going to strike down whatever Congress does in response to its rulings.

Leah Litman So speaking of the long history of the court doing things to help Republicans, Ari, you’ve had John Robert’s number for longer than just about anyone and we are immensely grateful for it. Of the terrible things the Roberts court has done, where would you rank, I guess I would say, Louisiana versus Callais and the fallout, like including what they did in Alabama and whatnot.

Ari Berman Right at the top, I would say the worst or close to the worst thing the Roberts Court has ever done on voting rights, I’d put it on par with Shelby County because I think Shelby County opened the door to Callais by unshackling the South and basically removing those states with a long history of discrimination from federal oversight. So I don’t think you can. Overstate how Shelby leads to Kalei because once you basically gut the heart of the voting rights act you go with what’s left. You cut off the rest of its limbs and that’s what they’ve subsequently done. In terms of the immediate electoral impact though Kale is worse than Shelby County because it took a while for states to change voting laws in the wake of Shelby County and to some extent you could organize against them and there were still tools in some cases, to fight some of those laws, like… The voter suppression law in North Carolina was blocked by the courts under Section 2. Now, when states are just gerrymandering to eliminate these districts, it’s very hard to out-organize something like that. And we are quite literally going 40 or 50 years backwards in terms of districts that elected the first black members of Congress no longer existing in a matter of days. And so that’s why I feel like. Callais and Shelby County to me are the twin horrors of the Roberts Court and really they go together in effectively destroying the country’s most important civil rights law.

Kate Shaw But also that the immediate impact of Callais is more dramatic than of Shelby County. I think that’s right.

Ari Berman Yeah, I mean, I just don’t, because Shelby County happened in 2013, right? So it was not an election year. And a lot of bad things happened as a result of Shelby County. And some laws did go into effect immediately, like a Texas law, which you can vote with a gun permit, but not a student ID went into effect that day. But I mean just the idea that all of these states were ready to go with these districts, eliminating black representation, that they had no second thoughts about doing it, that they could argue. With a straight face that they are essentially remining historic discrimination when they are gaging in that very kind of historic discrimination. You know, and we’re hearing a lot of things, a lot rhetoric that echoes the Jim Crow era. I mean, when the Mississippi governor says that Benny Thompson’s reign of terror is over in Mississippi, I mean that reminds me of the language that we heard segregationist whites use about black office holding during Reconstruction. I mean it’s really kind of just alarming, I mean, it just kind of, if you needed a rejoinder to Alito’s false claims of racial progress, the events of the last week where these majority black districts have just been wiped off the map in a matter of days, to me is the best evidence that the country has not made the progress that Alito would like to claim.

Kate Shaw Okay, we want to just briefly ask you maybe about one final development, which is these developments regarding Virginia. So, right, listeners know that after the Virginia Supreme Court on this 4-3 vote held that that state’s effort to redistrict to kind of counter the partisan redistricting effort that Texas initially undertook and also California responded to, the Virginia attorney general is asking the Supreme Court to intervene, arguing that both the Virginia supreme court rested its decision on a mistaken understanding of federal law and also that the Virginia Supreme Court basically took from the legislature a power that should belong to the legislature to regulate federal elections. So that is language from the Moore versus Harper decision that kind of largely rejected but didn’t entirely close the door to this so-called independent state legislature theory, something that Leah and I have written quite critically about this theory.

Leah Litman Virginia cited our piece in their amicus brief to the Supreme Court in this Virginia case urging the courts to adopt a narrow view of independent state legislature, a theory I’m sure they’ll stick to in other cases.

Kate Shaw Unexpected citation, and not quite properly. Anyway, it’s fine, great, sure. I mean, this is the rare instance in which I, yes. I mean I think it’s, I guess I’ll just ask Ari, do you have feelings about Virginia’s effort to get the Supreme Court to intervene here, just given everything that we have been talking about, about the robber’s court’s track record and sort of current objectives when it comes to regulating the process of democracy in this country, like. Is there anything good that can come from Virginia asking John Roberts to step in?

Ari Berman Well, I mean, they’re clearly not going to step in. So it’s sort of like a moot point, like the Roberts Court, the same one that just put its thumb on the scale of the midterms to help Republicans is suddenly going to allow Democrats to put in place a map that would help them pick up four seats. I mean that’s ludicrous, especially in light of Callais. I mean I think the Virginia Supreme Court decision was wrong, but probably the way that they’re trying to rectify it is also problematic in terms of what if we then got like sweeping independent state legislature. Argument that then Republicans could weaponize in the future. I think that’s extremely unlikely as you guys know I imagine they’re just gonna dismiss it with virtually no explanation like they do with all these cases I will say though. There’s something else I wanted to mention about Virginia that I want you got you guys take on the fact that the court retroactively nullified an Election in Virginia is making me very nervous about November. It’s a huge and how courts might adjudicate the outcome of the 2026 election and whether they’re going to use minor technicalities to just avoid elections outright. Because to me, basically, it was a minor technicality they were arguing over in Virginia. And a lot of people think the court got it wrong. But even if you think the Court got it right, there’s in a world in which you can imagine them saying this was a violent technical violation of the Virginia Constitution, but we are not going to void an entire election because of it. And I just look at what North Carolina did in 2024, where they tried to overturn the state Supreme Court race, kind of similar in terms of irregularities. Similar, except unsuccessful there. Yeah, but successful in that two North Carolina courts sided with the Republican challenger before the federal court stepped in. So I view the Virginia case as bigger than just a redistricting dispute.

Kate Shaw Yes.

Ari Berman I view it as an example of a Republican dominated court basically overturning an election. And I’m extremely concerned about the precedent that could set in November.

Leah Litman No, I agree completely. It’s something we talked about when we talked about the Virginia decision. It was actually kind of what I think I led with as the concern, right? Like, yes, this is a referendum, not a candidate election, but, right, like courts aren’t supposed to invalidate elections after the fact. And this is normalizing that. And I worry what it could portend completely.

Ari Berman And there was like similarly just totally hackish behavior by the Missouri Supreme Court. I mean, Missouri had like Virginia, a prohibition on gerrymandering and also organizers submitted 300,000 signatures to block the gerrymander map that was passed last year which should have just suspended it altogether for 2026. The Missouri Supreme court issued a ruling hours after oral argument. They didn’t ask any questions. I mean it was much like what the Roberts court did. In Alabama. So I think you could literally have a situation where the U.S. Supreme Court intervenes on behalf of Republicans in Callais to give them more seats. Republican-dominated state Supreme Courts in Missouri, in Florida, intervene on behalf of Republicans to give more seats, despite prohibitions on gerrymandering in those states. And then the one state where it’s struck down is Virginia, where it is approved by the voters. I mean, I just have such a hard time. Justifying that under any kind of logical principle of fairness.

Kate Shaw Well, I think we’re gonna continue to search for any logical principle of fairness that can explain the conduct that we have seen in recent weeks and months. We’re gonna have to leave it there. Ari Berman, always great to talk to you. Thank you so much for joining us today.

Ari Berman Great to see you guys, thanks so much for having me. Hopefully it was somewhat therapeutic, although I think it’s going to be more rage inducing for more people.

Kate Shaw But you know what, so we have that rage and we just have to figure out how to channel it. I think that’s just where we are. Before you go, wanna stick around and make recommendations with us.

Ari Berman Yeah, let’s do it. Maybe we can find some boy there.

Kate Shaw Okay, sounds good. I’ll end where we started with Melissa as yet again a New York Times bestseller. Also this last week was the golden age of SCOTUS on TV, or at least like a couple of like little moments of joy. SNL like had a great sketch that featured Brett Kavanaugh, Pete Hegseth, and Kash Patel. Check it out if you haven’t seen it. John Oliver had an incredible segment on the Shadow Docket. Also, Must See You TV. Jamal Bowies, The Supreme Court Has Put Us in a Dangerous Place was a great column. And finally, the Knight First Amendment Institute has a new podcast hosted by Madhav Kosla and Katie Glenn Bass. And the first two episodes with Kim Lane Shepley and Larry Lessig were very, very good. I forget Lawyering Without Law maybe is what it’s called. Anyway, I’m psyched to continue checking out this new law podcast and I recommend it to all of you.

Leah Litman I would plus one to the SCOTUS TV. If you didn’t see the SNL cold open, you absolutely have to just the best. And in that John Oliver segment, he both cites Steve Ladek and also identifies Steve Ladiq as his son. So again, definitely watch it. I would also plus one Melissa as yet again, a New York Times bestselling author, making the Constitution great again. Charlie XCX released a new single, rock music, and I’m hoping that that portends more additional music. Finally, as we were recording, we learned that Alito fixed the previous typo in his dissent, Alliance for Hypocritic Medicine, with actually a new typo, so this one, Alliance For Hypocratic, but just with one P, not two, Medicine, so… There is a mole in those chambers. There must be. I know. The bat signal. It has been received.

Kate Shaw Uh-huh, keep trying. Alito. All right, Ari over to you.

Leah Litman A lito bitch, a little bad with words.

Ari Berman One of the only good things that has come out of the destruction of the Voting Rights Act is people seem to be reading about history again and digging back into books. So I would just recommend the work on reconstruction. I think that it is more relevant than ever. I mean, Eric Foner’s book is obviously a great introduction to this, the work of David Blight as well. So I would, um. Recommend those two things. We put out, just to plug my own work, we put out a very cool three-minute explainer on John Roberts’ 40-year history of dismantling the Voting Rights Act. So if you don’t want to read my book, give us the ballot or other exhaustive histories of this. You could watch the three- minute video on motherjones.com. It had 600,000 views on YouTube, so I was at least a little happy about that amid my misery. And for a respite from the Supreme Court. I am very much enjoying my New York Knicks dominating the NBA playoffs and I hope it continues in the Eastern Conference Finals.

Kate Shaw Amen, and I will, since you didn’t plug your own book, Ari’s, Give Us the Ballot is also essential reading, so put that on your list too. Now, stay tuned for Melissa’s interview with Kenji Yoshino and David Glasgow about their new book, How a Quality Wins: A New Vision for an Inclusive America.

Leah Litman [AD].

Melissa Murray Okay, shifting gears. Listeners, if you have been marginally sentient over the course of the last year, you’ll know that the Trump administration absolutely loves DEI, well, a particular kind of DEI. The administration loves elevating mediocre dudes, that’s the D, ex-husbands, that’s E, and idiots, that’s THE I. It is, however, less enamored of the old-fashioned brand of DE I, the diversity, equity, and inclusion kind. That was aimed at equalizing opportunity and ensuring access for those who historically had been excluded from such opportunities. So let me tick through a list of some of the highlights of the anti-DEI impulse in the Trump administration. The administration has promulgated executive orders that are aimed at rooting out DEI in the federal government, its EOs targeting various law firms have cited the use of DEI in hiring as among the firm’s various offenses. When it is entered into agreements with colleges and university, the administration has extracted as a condition for the restoration of federal funding, a pledge the colleges will end the use of quote unquote, illegal DEI. And more recently, the DOJ’s Office of Civil Wrongs, excuse me, Civil Rights has announced that it will begin prosecuting corporations and other entities that engaged in so-called DEI under extant federal fraud statutes. To be very clear, The administration is not alone in its antipathy for DEI. In fact, the Supreme Court has functioned as the administration’s midwife, blessing a vision of colorblind constitutionalism that treats anti-discrimination as a species of discrimination. The court’s decision in SFFA versus Harvard was limited to the context of higher education. And as you know, it ruled that you could no longer use race in a limited fashion or any fashion in higher education admissions. But critically, that decision was limited to higher education. Nevertheless, that has not stopped those opposed to DEI from marshaling the logic of that opinion to undermine equality efforts in other contexts. Now, three years after SFFA and just a year after the Trump administration’s assault on DEI began forming, it seems like it’s an especially appropriate time to take stock of all of the damage and consider the future of equality. And to do that, we are joined by two very special guests who have spent much of their professional lives considering these very questions. Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law and the Faculty Director of NYU Law’s Meltzer Center for Diversity, Inclusion and Belonging. Also with us is David Glasgow, the executive director of the Meltzer Center at NYU Law. They are both my NYU colleagues and I am so delighted to have them here on Strict Scrutiny because in addition to all of these amazing things, they are the authors of some amazing books on the question of DEI. Their first book, Say the Right Thing: How to Talk About Identity, Diversity and Justice was a tour de force and they have followed that up with a new book called How Equality Wins: A New Vision for an Inclusive America, and it is out right now. Welcome to the show, Kenji and David.

Kenji Yoshino Thanks so much for having us, Melissa.

David Glasgow Thank you.

Melissa Murray But we are so glad to have you here because we are in a whirlwind. We’ve seen all of the damage. And I have one question. How did we actually get here? I still remember 2020 when the killing of George Floyd in Minneapolis sparked what some have called the great awakening. And it seemed like DEI efforts went mainstream. Everyone was thinking about DEI. Corporations were adding DEI officers to their rosters. Now, it seems like DEI is dead. How did everything change so quickly?

Kenji Yoshino Melissa, I think you nailed it in your introduction, where you mentioned the Students for Fair Admissions case against Harvard in 2023, because that’s really where this story begins. Oftentimes, people get very caught up in the last year that we’ve had with the Trump administration. But as we both know, the administration doesn’t have the power to change the law. It only has the power, to enforce the law, so the real service that the SFFA decision and did to the Trump administration and not to DEI. Was to embrace this colorblind vision of constitutionalism, I’ll put colorblind in quotes there, and allow the administration the running room that it needed to enforce civil rights statutes against its historical beneficiaries, namely people of color and women and the like.

Melissa Murray So what is the provenance of this colorblind constitutionalism? And I love that you lay the blame squarely at the feet of the Supreme Court because as you know, on strict scrutiny, that’s exactly where we put the blame over and over again. So I will just take this as an indication that you believe as we do, that we are always right, certainly about the court in this respect. But where is the court getting this idea of colorblind Constitutionalism? And what’s the tension between its earlier jurisprudence that seemed to take a different tack around this question of equality?

Kenji Yoshino So for four decades, the Supreme Court interpreted the equal protection clause and equality statutes according to what we call the anti-subordination view. And the anti subordination view is contrasted with the anti classification view, which is what the court embraced in 2023. So the anti Subordination View says classifying on the basis of race is not in and of itself problematic because sometimes you classify for invidious purposes like Jim Crow other times you classify in order to remedy Jim Crow, as in the case of affirmative action. What the Supreme Court did, upending 45 years of jurisprudence in 2023, was to toggle over from the anti-subordination view to the anti classification view, saying any use of race for whatever purpose is presumptively invalid and will be subjected to the highest form of judicial scrutiny. And it’s only a matter of time. In fact, it’s already started to do that before it ports over that equal protection understanding to statutes like Title VII that regulate the employment relationship. Just to land the plane on this about why it is so troubling that the Supreme Court’s move from one to the other, I wanna quote the late great Justice John Paul Stevens where he said, there is no moral or legal equivalence between Jim Crow and affirmative action. Any more than there is a moral or legal equivalence between a no-trespassing sign and a welcome mat.

Melissa Murray We’ve seen the court shift and the whole idea of perhaps equalizing opportunity the court has framed as coming at the expense of other people. White Americans, Asian Americans, and you all reject that in the book. I was actually surprised with the book because, you know, I’m somewhat of a Debbie Downer on this podcast. I always see where the next threat is coming from. Kate is not. Kate is our resident Suzy Sunshine, but I’m definitely Debbie Downar. But when I read this book, I was kind of surprised that amidst this grim landscape, the book is actually quite optimistic about the future of equality. So David, why are you so bullish about the Future of DEI and what you both call the broader project of equality, especially in the face of a court that seems absolutely adamant in rejecting this vision of equality?

David Glasgow Yeah, so we have a very similar dynamic to what you described between you and Kate, Melissa, which is that I’m the Debbie Downer and Kenji is the eternal optimist, but we found our kind of middle ground equilibrium in this book. And the reason why we hold on to some degree of hope and optimism is that this is not the first assault on equality that has existed in the history of the United States, right? I mean, we’ve been through slavery, Jim Crow segregation, internment. Legalized domestic violence, curvature, and on and on. Same-sex marriage being illegal. And each time activists, lawyers, people who champion the values of equality and inclusion have fought against those injustices and moved this country forward. Now, that’s not, in my view, a guarantee that there’s some end point in history that we’re always going to make progress that requires collective commitment and resolve. But the fact that we have overcome much deeper challenges in our history gives me some hope that with the same level of focus and intention, we can do the same here. And, you know, if I take a step back from DEI, right? You mentioned that DEI may be dead. And I think you may be right about that in terms of the acronym, DEI. But I think the underlying- Bye!

Melissa Murray Well, it’s only dead for certain kinds of DEI, the dudes, husbands, and idiots very much ascendant.

David Glasgow That is absolutely alive. Yes. But my hope is that the actual underlying values of equality, Americans still overwhelmingly support those. Polls show that Americans believe in fairness and in equal opportunity. It’s still very much embedded in many of this country’s major institutions. And so I think that if we find creative ways of advancing those values that perhaps pivot away from some of the forms that have come under such a vicious legal that we can still ultimately prevail.

Melissa Murray One of the things that you posit in the book is that those who have supported DEI, certainly for the last couple of years, have been a little short sighted about how they framed their project and who they’ve included in their project. And you argue that a kind of big tent universalist approach to DEI would be more successful going forward, that the folks who are trying to do DEI equalize opportunity. Really have to be more thoughtful about who they include in their project and making more room for a broader field here. What do you think they’ve done wrong in the past? Specific examples. And why do you this broader Big Tent approach will be successful going forward?

Kenji Yoshino I think it really goes back to what you think DEI is for, and we think that it’s for fairness. And so if you think that its for fairness, I think that our colleagues in the field whom we deeply admire, have sometimes erred ignoring three different kinds of claims. And those claims are claims of enforcement, claims of symmetry, and claims of extension. So claims of the enforcement would be claims like religion, where something is protected under civil rights law, protected under the First Amendment of the Constitution. But DEI practitioners have often been relatively inattentive to claims made by people of faith for reasons that are probably too complex to go into here. But we’re absolutely for including that within DEI. It makes me want to tear my hair out whenever somebody says, oh, your university does too much DEI, and oh, by the way, you should be doing more to combat anti-Semitism because we’re like, that is totally contradictory. You can do both. The second claim is a bit more controversial, I think, which is claims of symmetry, which is to say that oftentimes what people say is that there should be symmetry in the way that I described with the anti-classification view, and we don’t think that that symmetry should be reflexive, but we also don’t that simply because you’re on the dominant side of a particular social classification that you necessarily should lose every single time. So take boys and men. Richard Reeves has written a wonderful book about this, about how boys are underachieving in secondary and elementary education. Men die by higher rates of deaths of despair, by suicide and the like. So I think we should really approach this like public health individuals and say, we are gonna go where the inequity is. And if there’s an inequity, even if it affects a dominant group and we do view men to be obviously dominant. But there are pockets within which that dominant group is suffering from inequities, we should deal with that. And then the third example would be claims of extension, which is that there are many kinds of unfairness within American society that DEI has been, again, relatively inattentive to. I want to think about first gen and a low socioeconomic status as two really core areas in which we could do much better. And so even at that kind of first-cut thinking, of honoring these kinds of claims, you know, claims of enforcement, claims of symmetry, claims extension, you’re going to get a much, much bigger tent than you had before, and that can only be good for the popularity and the relevance of DEI to all of us as Americans.

Melissa Murray So I see how expanding the groups that would be impacted by DEI would work wonders for how this is reviewed and accepted by the general population. But does an approach that expands the lens of who is included among those who are the beneficiaries of DEI, will that actually detract from what I think has been the historic mission to equalize opportunities for groups that historically have been excluded and. Those aren’t necessarily men or Christian conservatives. It’s been women, LGBTQ people, people of color. Would it detract from the mission to expand the tent in this way? And how do you respond to those who worry that you’re diluting the mission if you expand the lens?

David Glasgow So I think there is a danger in that and to pick up on the analogy that Kenji mentioned of public health or we sometimes liken this to a physician’s approach of going where the pain is, even a physician who welcomes everybody and goes where the paint is can still do triage. They can still say, well, I’m going to focus more on this area of pain or this area pain or this patient that’s presenting to me. So Going where the pain is does not mean that if, say, a white man comes forward and says, oh, I believe that I’ve been discriminated against because I missed out on this promotion because of DEI, that somehow we need to say, oh, wow, that’s really valid. We should care about the dudes, ex-husbands, and idiots form of DEIs, right? You can still prioritize. The point that we’re making really is just rather than a kind of reflexive opposition to it of saying we only care about groups, you know, A, B and C. We’re taking a universalist standpoint of anyone who comes to us with a valid claim of pain we’re going to take seriously, but we are going to adjust or calibrate depending on what’s coming forward. And if that means that we’re still focusing on, to take the gender example, reproductive rights or the gender pay gap or domestic violence, sexual assault, all of the issues affecting women disproportionately. We think that you can do that while also caring about, for example, recruiting more male teachers in elementary school to ensure that boys have better results in schooling.

Melissa Murray So it’s basically like being in an emergency room. If you come into the emergency room and your arm is hanging off and someone has an earache, you’re both going to be served, but perhaps not at the same time and perhaps not with the same intensity.

David Glasgow Exactly.

Melissa Murray At the beginning of the Trump administration, there was an unbelievably tragic air traffic accident in Washington, DC. A commercial airliner collided with a military helicopter. And in the aftermath of that tragedy, the administration immediately blamed DEI, the idea that the pilot may have been a person of color or a woman. There was all of this renewed attention to the fact that the Obama and Biden administrations had done a lot of work to diversify the ranks of those in the airline industry as pilots, as air traffic controllers, et cetera. How do we talk about the question of merit and how would you talk about the question about merit in this new landscape and in your more bullish view of what DEI could be going forward?

Kenji Yoshino I wanna begin by perhaps being a bit of a Pollyanna and saying those kinds of claims seem to have died down a little bit. It used to literally be bridge falls down, it’s DEI, wildfires raged through California, it is DEI. And I think that the American people got wise to the fact that if we have this kind of mentality where if anything bad happens anywhere in the world, that we have to look at the chain of responsibility and command to find the woman or the person of color. Right, who’s in any position of authority and then blame it on them.

Melissa Murray When Pete heads that, that’s right there!

Kenji Yoshino Yeah, well, not commenting on our secretary, I’ll just say that I think anyone can see that that is naked bias. If the idea is you and I are professors at NYU, if someone looks at us and says, oh, you’re unqualified just because you belong to a historically protected minority, that is just naked bias, right? And so. I think we have evolved slightly beyond that, but in order to truly get beyond that we have to do just what you said, which is to embrace this concept of merit. And another thing that makes me want to tear my hair out is when fellow travelers who are pro-DEI say, oh, no, no. We cannot touch merit because merit is a very dangerous game to play and it plays into the hands of our opponents. And our view is, yes, there are concerns with merit. We identify three. So merit can be extremely subjective, merit can extremely instrumental, like it seems like the only good that I have in the world is my productivity or my efficiency, that might be problematic. And then merit is often also unearned, that if I’m born into as I was, into a middle-class family with all kinds of economic advantages, and I didn’t earn any of that with regard to merit. But again, I’ll be synoptic here, because we don’t have time to go into it. But our answer is mend it, don’t end it. We recognize all three of those concerns, but there are ways of refining the concept of merit so that it can be used. And if we don’t use it, then our opponents will win. It’s as simple as that. Because whichever side gets merit on its… Side is going to win this war of ideas. So if we say, as we do, our desire is for the most meritorious person to win, and we want to eliminate all of the headwinds, all of biases, conscious or unconscious. As Chief Justice Roberts himself said, and students from fair admissions, eliminating race discrimination means eliminating all of it. We would love to take him at his word and say, let’s eliminate all the bias, and then let’s have this fair competition of ideas based on merit.

Melissa Murray So I love the way that you frame this. I am often very frustrated with the discussion of merit in the context of DEI efforts. I was especially concerned in the wake of the SFFA decision when America First Legal, Stephen Miller’s outfit issued those letters to institutions of higher education, including law schools saying that. You know, we are going to be monitoring you to ensure your compliance with SFFA versus Harvard. And I remember teaching the case to my students and showing a copy of that letter and asking, how will Stephen Miller know if a law school has been compliant? What is the measure of compliance for these purposes? And, you know, eventually a number of them said, well, it will be a diminution of the number of Black and Brown students that are admitted each year to the school. And then that poses the question, is this a world in which we just cannot contemplate the prospect of any person of color being admitted? Because that’s not really about merit. That’s actually about racial hierarchy and racial supremacy. And so sort of teasing out what merit is from the way merit has been. Co-opted and marshaled by those opposed to DEI, I think is a really important part of this. And I don’t think it’s going to be easy to be able to do that. I think it really embedded right now.

David Glasgow Oh, absolutely. And the tell, of course, is not just what you say about the diminution of, you know, people of color in these institutions, but also the people that they’re appointing. I mean, having a professional wrestling executive as the head of the Department of Education or a weekend TV host as the.

Melissa Murray Hey, hey, hey. Let’s not malign weekend TV.

David Glasgow Well, when you’re the Secretary of Defense, Melissa, then we can definitely have that conversation.

Melissa Murray The military uniforms are going to be lit on my watch, trust.

David Glasgow But, you know, they’re not engaging in merit-based hiring, and so we devote an entire chapter of our book, which we call Reveal the Stakes, to really unveiling, do the other side really believe in this colorblind meritocracy that they claim to believe in, or is there something more sinister going on? And so we have a few litmus tests to help you figure out whether you’re dealing with a good faith critic of DEI who believes in merit. Or if you’re dealing with someone who really just wants to bring back old school racism, sexism, homophobia, and the like. And so one tell of course is what they say in private. And there’s been a great New York Times expose on this showing that a lot of anti-DEI activists engage in really overt bigotry behind the scenes. But another tell exactly, but another tell is, are they consistent in fighting for equality, no matter which group? Is being protected or do they only seem to care about equality when it’s a dominant group that’s being protected, or when they can drive a wedge between marginalized groups? So affirmative action is a good example of this, where, you know, opponents of affirmative action would say, we’re really motivated by a concern for anti-Asian discrimination, that’s why we’re doing this. But could they point to a single other instance prior to that where they had fought against anti-asian discrimination? Or was it only in order to drive a wedge between Asian Americans and Black Americans? Or similarly, their activism around women’s rights and protecting women’s athletics. They only seem to care about women’s right when it involves marginalizing trans individuals. In every other context, they don’t particularly seem to care about that issue.

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Melissa Murray Let’s shift to sort of how to put all of this into practice. One point that you make that we haven’t talked about is that you argue that we need to shift from a kind of time one DEI focus, which was about lifting up groups that historically had been marginalized, to leveling, which I assume you mean sort of making sure the playing field is one where everyone, regardless of the advantages or disadvantages they bring to the table, can thrive and be successful. So. How do you get institutions like corporations and universities and foundations and nonprofits in this moment to buy into shifting from the uplift which is clearly presumptively unlawful now at least for some in the administration to moving to this leveling platform? Is that an easier sell for them? And how do you pitch it to them?

Kenji Yoshino I think it’s so easy because it’s legally absolutely safe and it’s politically very, very popular. The example that I always give Melissa is orchestra screen study where in the 1970s, 5% of the top five symphony orchestras were women. That number jumped by the end of the study in 2016 to 35%, which was a remarkable increase in a very short period of time for anyone who works in this field. And the fix was that they made everybody audition behind a screen so that the gender of the person was not discernible to the person who was judging them. So they could have approached it differently, right? They could have approach it by saying, there’s a dearth of women. We think that this is due to bias. And so we’re gonna lift up. We’re gonna engage in affirmative action for women and we’re going to give them an extra point or an extra bump and give them a ramp up to this playing field. They didn’t do that, they said no ramps, but the playing field is going to be absolutely level because we’re going to impose the screen. If you can’t discriminate between two people, you can discriminate against one of them. So that orchestra screen study, I think is a really good example of how powerful leveling strategies can be even when lifting strategies are unavailable to us. I do have a colleague, I must admit, one of our colleagues, Melissa, who said- Exactly. If you mention the orchestra screen study one more time, I’m going to throw a case book at you. I said, why do you say that? He said, well, because I can’t use it. Sure, I can blind grade my exams, but if I want to supervise a student, I have to meet that student. Give me something that I can actually use because this orchestra screen is a very limited value in my environment and most white collar professional environment. And the good news is, as we say in that chapter of the book, there’s a whole litany of ways in which you can engage in leveling strategies even in those professional environments. So those could include anonymized assessments of things like exams. Those could also include structured interviewing. We all know that we have similarity bias, like slight bias. You can cabin that if you ask all the same questions in the same order of all candidates and score them in real time. You can also do bias audits to make sure that the things that you are doing are not themselves imposing kind of inequity in the playing field. And a really good example of that would be my buddy Shelly Carell, who spent many years of her life looking at performance reviews. She’s a sociologist out at Stanford. And what she says is, look, Kenji, when I read your lifting to leveling analysis, I thought, well, on the one hand, I oppose SFFA. But the silver lining of SFFA, if there is one, is that it may push people towards the leveling work that you describe, and the leveling work is a more systematic work. So she said, usually when C suites or executive committees have not enough women on them, they just pull up. They lift up a woman who is qualified. So that’s great for that woman. That’s great that board. But it isn’t great for the organization as a whole, because the other inequities which In fact, every single woman in the organization. Are still in place. Whereas if you look at this performance review study, we can show beyond Cavill that women are graded only on performance and men are grading on some admixture of performance and potential, which always advantages men. So if you actually remove that bias from all through the organization, which she has strategies to do, then you can actually make life better for every single person within the organization by making it more fair for all.

Melissa Murray Well, it sounds like you’re advocating for truly structural reforms, like deep infrastructural work within these institutions, the kind of thing that we were talking about in 2020 when we were taking about these questions of systemic bias, whether institutions were infected with bias from within. So it wasn’t about cosmetic changes, it was about actually being very introspective about how our organizations were structured and the way that bias was sort of baked in.

David Glasgow Exactly. And this is another reason to be hopeful, which is that if we take this moment of crisis for DEI and we decide let’s do this deep structural work of picking apart all the systems within our organizations and reconstituting them to be more fair, that may ultimately result in a more effective form of DEI than the much more kind of performative band-aid solutions that some organizations were adopting after 2020.

Melissa Murray Let me end with a question again, because I am a Debbie Downer, but we are trying to be more uplifting in 2026. So you’ve argued in the book that, quote, the fight over DEI is a fight for the identity and soul of the nation. We’ve seen a lot of evidence of the soul of this nation over the last couple of months, and it’s not a great look. What do you say to those people who feel hopeless right now.

Kenji Yoshino I would ask them to take a long view of the history and character of this nation. So as you know, just as well as I, because we both teach constitutional law, the constitution is really a story about increasing diversity, equity, and inclusion. And so the country is founded by a very small group of propertied white men, and every generation has struggled to expand who counts. As part of we, the people, to overcome those historical status-based exclusions from who actually mattered in this country. So just looking at it as a constitutional law professor, I think of the 13th, 14th, and 15th Amendments as doing that for race. I think that the 19th Amendment as beginning to bring women into the polity, as well as first, second, third, fourth wave feminism. I believe more recently, Title VII of the Civil Rights Act and… You know, Obergefell and Lawrence is bringing LGBTQ plus individuals within the polity of the Americans with Disabilities Act, et cetera, et cetera. So the arc of history has really been one where the trend line has always been for inclusion. And there’s no reason to doubt, despite the fact that things look very grim right now, that in the long run, this will not continue to be the case. And the final kind of point that I’ll put on that is a purely demographic one. So we live in a country that is soon going to be a majority minority nation based on race that is already true of the under 18 cohort where whites are a minority of the population in that cohort. Since 2019, a majority of college graduates are women in this country. So the most desirable employees are women. And then most startling for me, 25% according to Gallup, not HRC, not some advocacy group, but 25% According to Gallop of Generation C self-identifies as LGBTQ+. So in a nation that is as heterogeneous and as diverse and as multicultural as that, how can we hope to survive much less thrive if we don’t have the capacities to work, to bond, to love, for care for each other? Across difference. And that really is the work of diversity, equity, inclusion. That’s why it’s necessary and that’s why we’ll always be with us.

Melissa Murray The book is called How Equality Wins: A New Vision for an Inclusive America. It is practically minded, beautifully written and absolutely necessary in this fraught moment. And its authors Kenji Yoshino and David Glasgow are two of the best thinkers on these questions and we are so glad that they joined us today. David, Kenji, thanks so much for sharing this important work with us.

David Glasgow Thank you so much, Melissa.

Kenji Yoshino Thank you, Melissa

Kate Shaw We’ve covered the fallout from Louisiana versus Callais, but the latest Runaway Country looks at what comes next. Host Alex Wagner talks with Representative Suhas Subramaniam about Democrats’ plan to respond after a major setback in redistricting. Then Stacey Abrams joins her to break down the Supreme Court’s gutting of the Voting Rights Act and talk about why abandoning core values is just not the answer. Listen to Runaway Country every Thursday, wherever you get your podcasts, or watch on YouTube. Thanks again to Kenji and David for that great conversation, and we will see all of you next week.

Leah Litman Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Jordan Thomas is our intern. Our team includes Matt DeGroot, Ben Hethcoat, Johanna Case, Kenny Moffat, Eric Schutt, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East.

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