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Katie Phang, independent journalist and trial lawyer, joins Leah to run through the week’s legal news–and there’s a lot of it! They unpack, as KBJ puts it, “this Court’s demonstrated enthusiasm for greenlighting this President’s legally dubious actions in an emergency posture” and break down the latest thirstiness from the judges angling to be Trump’s next SCOTUS pick. Then, all three hosts are joined by Strict Scrutiny’s official roadie, Chris Hayes, to talk about his book, The Sirens’ Call: How Attention Became the World’s Most Endangered Resource. 

Hosts’ and Guests’ Favorite Things:

• Chris: What we won on Election Day, Zohran Mamdani
• Kate: Mamdani, Trump and the End of the Old Politics, Ezra Klein & Chris Hayes (NYT); Moral Ambition: Stop Wasting Your Talent and Start Making a Difference, Rutger Bregman
• Melissa: Dirty Dancing; Ruin Their Crops on the Ground: The Politics of Food in the United States, from the Trail of Tears to School Lunch & Skimmed: Breastfeeding, Race, and Injustice, Andrea Freeman
• Leah: Bury Our Bones in the Midnight Soil, V.E. Schwab; Bone Valley: A True Story of Injustice and Redemption in the Heart of Florida, Gilbert King; Beyonce’s Cowboy Carter tour
• Katie: A Lawsuit against Alligator Alcatraz! (Katie’s Substack)

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• 10/4 – Chicago

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

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TRANSCRIPT

Melissa Murray [AD]

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

Leah Litman Hello and welcome back to Strict Scrutiny, your favorite Supreme Court justices favorite Supreme court podcast. No, we are your podcast about the Supreme Court and the legal culture that surrounds it. And this is our first summer episode. And as promised, we’re going to bring you a debrief of Supreme Court and legal news followed by a super fun conversation about a terrific recent book by someone in the Strict Scrutiny multiverse. Yes, after this new segment, you will hear Kate, Melissa and me talk with our roadie, Mr. Kate Shaw himself, Chris Hayes. About his latest New York Times bestselling book, The Siren’s Call, how attention became the world’s most endangered resource. But before we get to that conversation, I am delighted to be joined by first-time guest, long-time great, Katie Phang, who’s going to help me break down the legal latest. Katie is an independent journalist and trial lawyer. You can find her with her must-follow commentary at her YouTube channel, Katie Phang News, which will be in the show notes, and at her substack, at Katie Phang. Welcome to the show, Katie.

Katie Phang First time, long time.

Leah Litman We could not have a better first summer guest.

Katie Phang I am thrilled. This is like the best early birthday present ever, so yay.

Leah Litman So Katie and I are going to discuss *gestures wildly* a lot, but we’ll make it punchy. So that’s going to include the latest.

Katie Phang No way, there’s a lot to cover? What are you talking about?

Leah Litman I know, who woulda thunk? Latest on the shadow docket, some goings on in the lower chords, and then some Emil Bove and Ken Paxton just to top it off. So listeners, start your engines. Let’s get to the crazy. We’ll start with a brief moment of silence, like one second, maybe millisecond, to mark the end of the marriage of one Texas Attorney General, Ken Paxton, and his wife, Uber right-wing state senator, Angela Paxton. OK, that’s all the silence we need. Angela announced their conscious decoupling with an epic Twitter post as all healthy marriages end. It read, today, after 38 years of marriage, I filed for divorce on biblical grounds. In light of recent discoveries, I do not believe that it honors God or is loving to myself, my children, or Ken to remain in the marriage. Katie, you’re a trial lawyer. What does it mean to file for divorce on biblical ground?

Katie Phang I didn’t remember learning that in law school. Now I will say the caveat is I did not attend law school in the state of Texas, although I did go to law school and the state Florida, which is often a hold my beer kind of moment between the two states. They’re competing on a race down to the bottom of hell together. But that, I, you know, I did and I do a lot of family law. Um, and I will say, I have never seen a petition for dissolution of marriage on social media, but you know what? It is the 21st century. And of course she’d put it on the cesspool, which is X. Um, but biblical grounds suggest the consistency of the Ken Paxton biblical knowledge allegations, like I biblically knew her. Um, And so I suspect that there have been more revelations, yet another biblical reference that I’m dropping here. I think that there’s been some new revelations. That being said, what’s fascinating is you said it, you know, Ken Paxson’s wife was definitely having her own meteoric rise to fame and to power politically being the spouse of Ken Paction. There was definitely the hitching of a star to a wagon there or wagon to a star. And I think that for her to say that she’s done. Is, I think, a big, big deal because he has done a lot, allegedly, a lot of bad stuff. It wasn’t the impeachment, right? It wasn’t the alleged corruption. The fraud, the whatever. It couldn’t be that. It was the biblical stuff. But you know what’s fascinating though is it just kind of highlights though, Leah, the hypocrisy of the GOP that you can have all of these stains and still be the attorney general. Of the state of Texas and to still be a politician. And you know, they’re incredibly forgiving when it comes to their own.

Leah Litman Like, of course, it’s the guy who is furiously searching for husbands and boyfriends to terrorize their wives and girlfriends by filing wild anti-abortion litigation, right, who would be the one that needs to have his marriage dissolved on biblical grounds. Makes you wonder how much weird stuff did Judd with 2D Stone have to do in order to be fired from that office. But we’re going to leave most of the Ken Paxton coverage to our friends at Lawyers Behaving badly. And that takes us to the Supreme Court. So the Supreme Court stayed. On biblical grounds of course, a significant decision of the lower courts. That’s a joke. They did bother to explain themselves on this one and it wasn’t on biblical ground. But maybe before we get into that detail, we thought we’d answer a question we’ve received a few times, which is, I thought these clowns were done. They finished the term. Why are we still hearing about them, Katie? I mean, why?

Katie Phang Why are we still hearing from them? I mean, you would think that the the destruction had some cessation or expiration date like my milk does But apparently not I thought these people like wanted to vacation It’s it Clarence not get the memo on where Harlan’s yacht is this summer because I mean Why are? We still getting this but you know we’ve talked about this a lot and and I’ve talked About this with Steve Lattek another friend of the show, you know the emergency application process I’ve equated it to a little boy running to hide behind his mother’s skirts. Anytime the Trump administration gets something that they don’t like, they run to hide behind mama’s skirts and that constitutes your ultra conservative majority SCOTUS. But this one was a little weird. And if we’re talking about the American Federation case, I mean, for Katanji Brown Jackson, who in full disclosure is a friend that I went to high school with. You know, for her to be the lone dissenter on this one was really startling.

Leah Litman Much of that detail. Yeah, no, we’ll unpack what the case was about and the dissent for sure. But yeah, I mean, we’re still getting all of this stuff because the shadow slash emergency docket is can’t stop, won’t stop. The government is still going to be filing all of these requests for emergency relief, even after the justice is finished releasing their opinions and argued cases, which is part of the reason why we are still going to in your ear holes throughout the summer. So. With that background, the specific shadow docket order, as Katie suggested, was Trump versus American Federation of Government Employees. And this order came in one of the cases challenging the regime’s mass firing of federal workers and its restructuring of the federal workforce. So the plaintiffs in the case challenged the president’s executive order directing agencies to plan for large scale reductions of force in the Office of Management and Budget and Office of Personnel Management’s memo instructing agency heads to submit reduction in force and reorganization plans. And the agency’s plans that followed all of that. But the basic gist of the legal challenge is the president and the agencies OMB, OPM, and DOJ acted without congressional authorization in ordering agencies to engage in these reductions in force. Congress laid out a specific method for doing reductions in forced and reorganizations, and this ain’t it. And because only Congress has the authority to do radical restructuring of federal agencies in the federal workforce. The president and agencies can’t just go at it on their own. And the government’s position in this litigation has been, what do you mean the president ordered agencies to do this without regard for the relevant statutes? The agencies just so happened to come up with reductions in force after the president directed them to do so and told them to follow the law while doing so. The district court rejected that argument based on the facts. The court wrote, quote, the evidence plaintiffs have presented tells a very different story that the agencies are acting at the direction of the president and his team. So based on that finding and others, the district court found the executive order and the implementing OMB and OPM guidance unlawful and issued a preliminary injunction. Ninth Circuit declined to stay that preliminary injunction. And that’s when the Supreme Court comes in. So last Tuesday, the court issued a stay. It offered its conclusion, but not so much its reasoning. It said, quote, because the government is likely to succeed on its argument that the executive order and memorandum are lawful, and because the other factors bearing on whether to grant a stay are satisfied, we grant the application, end quote. How helpful. So court’s decision 8-1. We’ll get to Justice Jackson’s dissent in a second. But Katie, what did you make of the court’s order?

Katie Phang Thanks for no favors. Once again, the very limited explanation being provided, the summary kind of casual like, well, hey, they’re going to succeed on the merits. So let’s just disregard everything the district court did. It is so incredibly arrogant to me. And it dovetails with the Kataji Brown Jackson dissent we’re about to get into. I take umbrage with this idea from SCOTUS that the work that’s being done on the district level, it could just be summarily disregarded. Right. It’s work. There is some heavy lifting that is being done by these trial court judges and it’s like, are you supposed to just say, well, hey, we think that the Trump administration will ultimately prevail. So to hell with what you just did district court judge. It is just such a slap in the face of all of the heavy lifting. That’s being done. And again, like I said, it kind of just goes to the crux of the KBJ dissent in this case.

Leah Litman Yeah, no. I mean, the district court did this in-camera review. The Supreme Court looks at none of this and just says, well, our vibes, our reads, just kind of different. And listeners are probably curious about the fallout that is the upshot of this order. Basically, what it means is the Trump regime’s widespread massive scale layoffs and reorganization are no longer blocked. We’ve just gotten news that the Department of State plans to lay off a ton of diplomats and foreign service workers. But the plaintiff’s case, that is the case that is challenging these reductions in force and reorganization, can proceed against the individual agencies. That is, the plaintiffs can argue that any individual particular agency’s plan for a reduction in force and reorganization is unlawful. And there were 22 other agency defendants’ names. So this would require them to show that each of those agencies adapted illegal reductions in forced and reorganized plans, You know making it harder for the plaintiffs to really stop all of this. And I wanted to talk about the vote breakdown, which appeared to be 8-1. Justice Sotomayor issued a short opinion concurring in this day. She wrote, quote, the relevant executive order directs agencies to plan reorganizations and reductions in force, quote consistent with applicable law, end quote. And it’s like, I’m sorry. My This Policy is Consistent with Applicable Law T-shirt is raising questions that are answered by my This Policy Is Consistent With Applicable law T-Shirt.

Katie Phang It’s circular. It’s like you’re answering the question with the question. And it doesn’t help me to say that. And I think that’s what really is upsetting because there is no recourse now beyond the Supreme Court. And so we look at these opinions and not just as lawyers, just as Americans, we’re looking at these opinions for guidance. Why? Because now we can maybe retry or re-strategize or reconfigure the way that we’re going to approaching litigation in the future. But when you leave is hanging like that. It’s a really bad cliffhanger. And the problem is you now have people that are unemployed. And that’s what troubles me too. I feel like this ivory tower energy is now coming from this opinion. It’s the, well, y’all are down there and we’re up here. And the fact that a district court judge did all of this work to be able to determine the ultimate impact and did as a finder of fact, a credibility determination, which is also critical here, that you do not get from the Supreme court when they sit again in their ivory towers and they make these decisions. It’s just a very humbling thing to watch that happen in a bad way.

Leah Litman Yeah, I mean, it seems like just last month, when Samuel Alito was ranting about the appellate otherworldliness and the removal of appellant judges from the realities of trial courts. But the Justice Sotomayor concurrence was super puzzling to me, because it basically says, well, the administration says that what they’re doing is legal, so therefore it’s legal. That seems to turn the presumption of regularity into something that is basically irrebuttable. We’re not just presuming regularity. We are declaring regularity and insisting on it. And I mean, the Supreme Court’s order, that’s just a conclusion without an explanation. And so that leaves us to actually understand what’s going on by looking to the dissent by Justice Jackson, which is yet another tour de force that sounds the theme she has been ethering the court and the administration with. Katie, you already kind of started talking about the dissents and I cut you off just to get all of our listeners up to speed.

Katie Phang I’m sorry that I jumped.

Leah Litman That’s where you should start. That’s where you actually get the information.

Katie Phang Well, sadly these days that’s where you have to start, right? Because apparently the like six lines that you get in the majority doesn’t suffice. I feel like it’s this one line that if I could read from her dissent, it’s just it. But that temporary, practical, harm-reducing preservation of the status quo, which was The injunction, right, in this case, whatever, was no match. For this court’s demonstrated enthusiasm for green lighting this president’s legally dubious actions in an emergency posture. I mean, she covered the waterfront, the emergency application, disingenuous, the emergency applications. The fact that this is a temporary injunction. This is just an injunction which is just a band-aid on status quo so that these cases don’t have to be rushed to the Supreme Court and they can be measured and determined on the facts on the record. But you know, she really excoriated her colleagues and she included the ones that we normally are looking to for sanity because they joined in on the majority opinion.

Leah Litman Yeah, no. And that is underscoring a theme that she has raised several times, which is the extent to which the court is just in the bag for the administration, or at least giving them favorable treatment. And she really takes issue with what you were also highlighting as problematic about what the Supreme Court did, which was the Supreme Court giving a big middle finger to the lower courts and their fact-finding. So as she explains, the issue in this case whether what the federal government is doing is a massive restructuring at the direction of the president and OMB, or on the other hand, like minor workforce reductions that are being initiated by agencies and assessed to be consistent with their statutory obligations. And as she acknowledges, you need facts to answer that critical question. And the district court made a ton of factual findings. And the Supreme Court does not explain. How they disagree, where they disagree which fact findings they disagree with. And that seems to be the basis for their decision.

Katie Phang So what people need to understand is these injunctions in these contexts are based on evidence. There is the presentation of evidence to sustain these injunction, to grant them, to deny them. And in the course of considering the evidence, the judge not only relies upon whether or not the evidence is admissible in the first instance, but also again is able to make a credibility determination that is a luxury afforded to a trial court judge that Normally if you were in a jury trial setting, for example. The jury would be the determiner of whether or not, you know, there’s a credibility issue. But there is a uniquely situated person in this instance, which is the district court judge. This is a part of that judge’s job to do this. And so when you are not, the Supreme Court is effectively telling this district court, judge, you did your job wrong. But hey, we’re not gonna tell you how you did it. So, did you take umbrage with the facts themselves, or do you take umbraged with the process within which I obtained the facts? Or, like you said, so eloquently, it’s just the big middle finger because we don’t really care about the work that’s being done by the lower courts. So now we have this fissure between the lower court and the Supreme Court. And here’s, we haven’t even talked about this, let’s just skip over the appellate courts. Cause who the hell cares about what their role is in some of these determinations. And fundamentally, I love the fact that Katandra Brown Jackson keeps it real. She says, there are very real harms that are coming from the overturning and the dismissal of a temporary salve, a temporary bandaid while we let the facts sort themselves out. And it’s funny because we haven’t heard a lot about Doge lately. I mean, really, we haven’t. It’s always kind of been some other horrific federal agency that’s been doing something massively wrong, like DHS, ICE, et cetera. But we haven’t heard a lot about it, but we all know that motivation and intent is an incredibly relevant part of this analysis. And that is, again, the luxury afforded to a district court judge to be able to assess. And now we’re just summarily kind of cloaking this administration with a presumption of decency. When we all know that that’s not the case.

Leah Litman Yeah, and maybe just to unpack, you were referring to this as a temporary salve and band-aid just to explain for our listeners the different stages of litigation. So here the district court had issued a preliminary injunction to prevent the federal government from firing so many people and restructuring the agencies. And one reason to do that is because if you allow them to do those firings and that reorganization, and then at the end of the case you conclude it’s illegal. It’s really hard to unwind that. And so part of the- Put the genie back in the bottle. Exactly. Quick, quick. Exactly. Part of the purpose of these preliminary interim relief is to preserve a status quo, to allow the courts to collect the facts and determine whether what the district court has concluded kind of makes sense as a permanent answer in the case. So. Justice Jackson’s writing is consistent with her public statements from last week. Katie and I have been reading from her dissent. Let’s hear her in her own words. At an event sponsored by the Indianapolis Bar Association in Indiana, Justice Jackson was in conversation with a district court judge. And she was asked what keeps her up at night. And we’ll just play her response.

Clip What keeps you up at?

Clip I would say the state of our democracy. I would say that I am really very interested in getting people to focus and to invest and to pay attention to what is happening in our country and in our government.

Katie Phang She’s a talker now. She’s saying a lot of stuff.

Leah Litman Talk about keeping it real. I am here for this.

Katie Phang I was surprised. I’m like, look at her go. She don’t care.

Leah Litman I love it. I absolutely love it, but the punch line or bottom line of this shadow docket order to me is a continued war on the lower courts that is being waged by both the Supreme Court and the Trump administration and this notion that district courts have to follow the rules, even the ones that the Supreme Court makes up and won’t tell them about. But of course, the court itself and Trump. Don’t have to follow the rules. That seems to be what Justice Jackson is saying the court has done.

Katie Phang And again, it’s the lack of guidance that troubles me too. Because now it becomes a little bit of a free for all. One of the luxuries you get from reading a Supreme Court opinion is, again, you get to go back to the drawing board for future cases. And we refer to Supreme Court cases as the ultimate case law, right? And that’s the precedent as defined by any lawyer. So if I’m trying to figure out how to present a case, if I am retained to represent a group of plaintiffs, I’m gonna go to a Supreme court case and say, okay, this was attempted and they lost. In this instance, it is a black box. A black box of an opinion. But this is what we’re getting from these emergency shadow dockets. It is wild that not only is it punting the regular audit of SCOTUS to be able to address these cases, but they’re creating all of this kind of perpetuated lack of knowledge, lack of clarity, lack of transparency. And how do you not have transparency in the law? That’s the part that I don’t understand.

Leah Litman Yeah, law, but make it secret. So it’s not the end of this case challenging the massive firings and reorganizations, but it makes the plaintiff’s case in challenging that so much harder. So now let’s move on to the lower courts, i.e. The courts who are actually doing the whole law thing, at least some of them. We had some, I think, welcome developments in the challenges to the president’s illegal attempts to deny people birthright citizenship. And specifically, a district court in New Hampshire certified a nationwide class action and blocked the government from applying that order to anyone in the class, which includes anyone potentially subject to the order. Katie, what should people know about this district court decision?

Katie Phang I suspect you teed this up in this order, Leah, because coming off of what we just said about we look at Supreme Court decisions to get some guidance. As we are aware, back in June, towards the end of June, there was a decision from the United States Supreme Court authored by Amy Coney Barrett that basically said nationwide injunctions. Now they’re a little bit suspect now, can be used in limited situations, but hey, class actions are a vehicle by which a nationwide injunction could be used. So what did very smart, very capable lawyers do? They immediately filed new lawsuits to be able to get class actions certified, a group of people to be be able represent an entire class of people across the United States. They tried and they went to a federal judge in New Hampshire And in disclosure, Leah, I am a part of Democracy Defenders Fund, which was one of the lawyers and lawyers groups that was representing the group of plaintiffs here. I myself was not in court for this. However, a federal judge in New Hampshire said, well, hey, I’ll see your request for a class. I will narrow it though. It’s a little bit much what you’re asking for. But not only will I certify a class, but I also will enter a nationwide injunction on that executive order. But I’ll give the federal government seven days to be able to appeal. But you know, Leah, it’s, again, we derived this theory of a strategy based upon a Supreme Court decision that gave us a new roadmap, which was incredibly helpful.

Leah Litman No, I mean, if the Supreme Court was basically going to use the possibility of class actions to blunt the effect of its ruling and to reassure people that it was no big deal, that was going to generate class action litigation, where judges would award the prospective class nationwide injunctions. And the question to me now is, whether the administration chooses to take this all the way up back to the Supreme Court and how quickly and what the court would do and whether it would deign to reach the merits this time. As you noted, the judge stayed the order for seven days to give the government time to appeal. So it’s going to the appellate courts, ready or not. And I think the question is just what happens after that.

Katie Phang I do think that the judge in this case, Judge LaPlante did a really nice job because he narrowed the class, because that was an argument from the Trump administration lawyers that it was kind of an overly broad stretch. It was an overreach to protect too many people in terms of the certified class. I think the fact that he narrow it, one, and two, the language of the injunction tracks the language the executive order. It’s very clear that the people who are the beneficiaries of the nationwide injunction are the ones that would have been subject to the executive order entered by Donald Trump or announced by Donald trump back in February of this year. And so I think that this federal judge was reasonably anticipating the appeal process, one, and two, your point is well taken. I do not think the Supreme Court is prepared to deal with the substantive issue of the birthright citizenship because we need to remind everybody tuning in. There is still other litigation that is still pending. On that because the Casa case, the one that we just talked about that had that Supreme Court opinion at the end of June, that case is still winding its way through the judicial system as well. So this was another case. This was Barbara, in quotes, Barbara versus Donald Trump, President of the United States in its official capacity and other defendants.

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Leah Litman So that is the news out of a district court in New Hampshire. Moving on to another court that might also be teeing up some issues for the Supreme Court, that is The Eighth Circuit. So The Eight Circuit recently denied en banc review that is review by all of the active judges on The Eight Circuit in the case about whether Section 2 of the Voting Rights Act has a private right of action. That is, the question is whether the Voted Rights Act can be enforced. In litigation brought by private parties, like citizens and voting rights organizations, or whether instead it can only be enforced by the Department of Justice, which, as we know, not so interested in enforcing voting rights as opposed to voting wrongs right about now. The Chief Judge Smith noted in dissent in the Court of Appeals case that over the past 40 years there have been at least 182 successful Section 2 cases. Of those cases, only 15 were brought solely by the attorney general. So not allowing private parties to enforce the Voting Rights Act that really kills what remains of the Votting Rights Act. And this issue, you know, whether section two can be enforced is now headed to the Supreme Court. The plaintiffs are asking the Supreme court to grant cert and review the case. And I’m sure only good things will happen from there. Well, what’s left of the Voting Rights Act? Yeah. Honestly. I mean, we don’t know what they’re going to say to that question in Louisiana versus Calais, which they put on the docket again for next term. I just feel.

Katie Phang Like the chipping away is eventually going to leave absolutely nothing left on the bone. There will be no substantive meat left on the bone and I think the primary concern is not actually, ironically, it’s not the substance or the merits of it. It’s the Department of Justice in and of itself. I think, the decimation of the Civil Rights Division at the Department of Justice has turned equity on its head, inequality on its And your point is well taken that if you do not have a Department of Justice that is seeking to protect civil rights pursuant to section 1983 of our federal statutes, if you don’t have a Department of Justice thinks that it’s civil rights division actually has to protect Civil Rights, then this becomes a free for all. And my greatest fear is again, what happens to what’s left of the Voting Rights Act.

Leah Litman Yeah, no. We are all going to be watching for that. So now back to some good-ish legal news. And it is, once again, out of the district courts, which are the place to be. So we got a temporary restraining order in Planned Parenthood’s challenge to the provision of the big bad bill that prohibits Medicaid recipients from being reimbursed for care. That they receive at entities that provide abortions and that receive more than $800,000 in Medicaid funds in one fiscal year. So Katie, I guess let’s start with that provision that is the provision in the big bad bill. Can you explain what that does?

Katie Phang So the big bad bill has a specific provision that goes after nonprofit organizations that generated $800,000 or more in revenue from Medicaid payments in the 2023 fiscal year. So there are nonprofit, nonprofit health centers, right? That not only provide abortions, but they also provide other medical care. I think that’s a big footnote here. There’s a big misconception about clinics like Planned Parenthood and other health care centers and health care clinics that even though they may provide abortion services that that’s all they do. But in fact, they actually are usually centers within neighborhoods and clinics within neighborhoods that provide essential health care services from mental health services, to birth control, to abortion, and to other things. And so basically BS bill, as I like to call it, but I’ll be polite because this is your show. This big BS bill though, is an attempt by the Trump administration to end run having to deal with something that frankly was already dealt with, which was the Hyde Amendment. So the Hyte Amendment says you cannot use federal funds for abortions, right? So that’s already in existence. But the Trump administration says if we include a funding slash in the big be bill, then we’re gonna basically gut Planned Parenthood because now they won’t be able to get the funding that they need. And the lawsuit that was brought essentially says, please let’s dispense with the stupidity here. We all know you’re really coming after Planned Parenthood because there’s really only us that generates more than $800,000 in income in Medicaid payments. Ha ha, we figured you out.

Leah Litman Yeah, and so just to take that one step further, the significance of this provision, it’s kind of a backdoor abortion ban because it will defund and close clinics in blue and purple states, not just red states because if you defund Planned Parenthood, if you starve them of the funds that they would receive for providing care to Medicaid patients, that is not just going to close clinic. In red states. That is going to close clinics across the country as they reallocate resources. And I think in that way, it’s similar to the targeted regulation of abortion providers’ legislative strategy of regulating abortion out of existence. Because if you force the closure of a clinic, then no abortions. And that seems to be the point.

Katie Phang So I wanted to read a statistic because I really like numbers. More than one million patients in 43 states receive health care services at Planned Parenthood that are covered by Medicaid. That’s a lot. And that’s every year. So to your point, it’s not just, you know, red states. It’s red states, blue states, purple states. It’s 43 states out of 50 states that are going to be impacted by this. And I think it’s incredibly insidious, because… It’s not for a failure of imagination on our part, Leah, but this is some pretty creative stuff that they do. And what’s incredibly disturbing is this 900 something page bill has these types of things baked in where you have to, again, extend your thought process strategically beyond just saying, well, how does this work? Like, what is this nonprofit? What is this amount? No, no, no. They are trying to get around and create basically a nationwide abortion ban because Planned Parenthood is, again, the only provider. That would meet these threshold financial requirements uner the BBB.

Leah Litman Yeah, so a district judge issued a temporary restraining order which pauses that provision of the BBB for 14 days from July 7. And that means patients will be reimbursed for care they receive at Planned Parenthood. And Planned Parenthood will receive funds for the care other than abortions that it provides through Medicaid. And we will obviously be watching that case to see what happens from there. So after we recorded, late on a Friday, I should add, in order to prevent subsequent breaking news, we got some late breaking, post-recording legal news. But it’s good news, so not going to complain. And gonna let you know about it. The news is this. A district judge in California issued a temporary restraining order that limits what ICE and DHS can do as part of their roving patrols in Los Angeles. This is a super important ruling in that it followed and implemented and upheld. It will reduce the amount of terrorizing that DHS is able to unleash on LA. A few quick details about the ruling. There didn’t seem to be a lot of disagreement between the government and the plaintiffs about what the law actually is. That is what the laws allows the government to do. So the district court actually starts out the opinion by laying out the agreement between the parties, bullet pointing the things they don’t dispute. The opening paragraph says, quote, the federal government agrees roving patrols without reasonable suspicion violate the Fourth Amendment and denying access to lawyers violates the Fifth Amendment, end quote. The dispute, in other words, is about the facts, i.e. Whether DHS is detaining people without reasonable suspension and then denying them access to lawyer. And the district court concluded plaintiffs submitted enough to substantiate their request about what is happening and to get a TRO. The district court wrote, quote, what the federal government would have this court believe in the face of a mountain of evidence presented in this case is that none of this is actually happening, end quote. You would think that this would be the kind of ruling that would or should hold up on appeal in the event the government tries to appeal a TRO, which ordinarily isn’t appealable, but appellate courts let you appeal temporary restraining orders that are functionally the equivalent of injunctions anyways. As Justice Jackson’s scorcher of a dissent in the union of federal workers case indicated, The Supreme Court is not above second guessing district courts on the facts, even when the fact-finding process is on the up and up and even when the facts seem to line up as a district court found them to be. Still, the temporary restraining order is great and welcome news. And this is what it actually prevents DHS from doing. ICE, DHS, Border Patrol, they can’t stop and question people solely based on their race or ethnicity, speaking Spanish or having an accent, being at a specific place like being outside of Home Depot where day laborers might gather. Or doing specific work, such as landscaping. Side note for our listeners, an old Supreme Court decision, Bregnone-Ponce from 1975, had actually permitted some racial profiling in the enforcement of immigration laws, but at the border and functional equivalence. Elsewhere, like LA, the government has to identify specific, articulable facts in order to justify stopping and questioning people. On the basis for the government’s arrest in this case, the court remarked, quote, defendants, that is the government, do not explain why fleeing upon seeing unidentified masked men with guns exiting from tinted cars without license plates raises suspicion, end quote. When ICE doesn’t identify themselves, there are consequences. The temporary restraining order that the judge issued also directs the government to immediately provide people who are detained in the basement of federal buildings with access to lawyers and confidential legal calls. So Great news, L.A., about this order. And again, in a sane functioning legal system, this should be the kind of order on which a district court gets a lot of deference, the kind order that stands. The Trump administration, as I was saying, did not argue that these kinds of stops were legal. They just claimed, in spite of all the evidence, that it wasn’t actually happening. And we usually let district courts resolve facts in reasonable ways, but we will see whether the administration gets the Supreme Court on speed dial for this one. And speaking of the Supreme Court, back to the original recording. So auditions continue a pace for the role of America’s next top SCOTUS justice. And among the auditions is, of course, the one being done by Fifth Circuit Judge James Ho, who issued a concurrence to his own opinion in a death penalty case. Hey, it worked for Neil Gorsuch. Anyways, yeah.

Katie Phang He doesn’t have enough to-do? My bro. It’s like we saw you and your very lengthy majority opinion that you drafted we needed you in a concurrence? What the hell?

Leah Litman He’s going to do extra credit. So this case is actually back from April, but we haven’t had a chance to cover it yet. And the case involves some individuals who are sentenced to death in Louisiana, and they had tried to challenge Louisiana’s lethal injection protocol. And one death row inmate sought to reopen the case to challenge the state’s new nitrogen hypoxia protocol. So the case is about the interpretation of federal rule of civil Procedure 60, which governs. Motions to reopen, and not content to rest there, Judge Ho filed a concurrence to his own majority opinion in a case about federal rule of civil procedure 60 and motions to re-open. And what did he say about, in this case, on civil procedure involving the death penalty? He wanted to stake out his position about how the terrible, horrible, no good, very bad district courts are doing too much to control Donald Trump’s unlawful actions. Like, he literally just goes off on the proceedings in Trump versus JGG, the Alien Enemies Act case. And I just got to respect the hustle, I don’t know.

Katie Phang Well, I mean, it was the the best part of his concurrence as a lying down and spitting up in the air moments of him saying, quote, It is often said that the judiciary is a co equal branch of government, but that’s wrong. Well, what do you do, buddy, for a living? Because last I checked. That’s what we do. So he then goes on to say.

Leah Litman He prostrates himself in front of the president, that’s what he does.

Katie Phang We’re not an active branch. We’re a passive branch. And under the constitution of our founders, the judiciary is the least powerful branch. I mean, bro, like maybe you need to find a new job because this is your job as a judge, last I checked, as a member of the judiciary. But that type of self-flagellation. Yes. Ooh, like really, like why we need, he needs therapy. Yes. But what’s horrific is, to your point. This guy is shortlisted all the time for SCOTUS. All the time. And I’m like, should be happy, fellow Asian American, maybe being considered for a big role, not so happy. That is James Ho. Just gonna put that out there.

Leah Litman And he is not the only Fifth Circuit judge trying to put his name in the hat, because Judge Andy Oldham also got on this shtick, and he filed a lengthy dissent to the Fifth Circuit’s decision to reaffirm that federal law is indeed supreme and that Chief Justice Marshall got the whole federal supremacy thing right in McCulloch versus Maryland. So the Fifth circuit concluded that Texas’s SB4, which basically allows the state to countermand federal immigration law, is preempted by federal law. And Judge Oldham filed a lengthily dissent. What to make of this dissent. So it cites White House press releases, including one called Promises Made, Promises Kept. It cites Fox News several times, at least five. And it cite anti-immigrant talking points from executive orders. Katie, who do you think has the edge here? Judge Ho or Judge Oldham?

Katie Phang Oh, listen. I think Ho wins the gold medal, but I think Oldham’s saying, I respectfully but emphatically dissent. Oh, okay. Well, that’s going to change my mind now. Because you emphatically dissented. He spent a lot of time on his love for Texas. Like Texas this, Texas that. I wonder if he consulted Ken Paxton and his wife. I mean, it was a love song to Texas. Yes. It was wild. It was a song to Trump immigration policy. Well, yeah. And it’s like, you know, they’re standing in the way of Trump. Marca! Like the whole thing read like a project 2025 Trump campaign for illegal immigration enforcement. It’s what it is. But to your point, it’s who’s gonna outdo the other when it comes to the beauty pageant. Tyra, where are you? We need you, Tyra. Send up the bat signal to figure this one out to send somebody home.

Leah Litman Um, okay, so this is what’s coming from the guys already on the federal bench. We also have some news about the guys who may yet still be on the federal bench, specifically one Emil Bove nominated to the third circuit. So Senator Durbin released a trove of communications and documents provided by the whistleblower, Mr. Erez Reuveni, who alleged that the regime plotted to defy court orders and that they. Plotted to smear Kilmar Abrego-Garcia as they resisted efforts to return him. Recall that Reuveni alleged that Emil Bove, a nominee to the Third Circuit, had said the administration planned to say, quote, fuck you, to the courts in the event the courts prevented expulsions to El Salvador before they were carried out. Most self-hating judges, between him and Judge Ho. But anyways, the allegations more generally describe Bove’s machinations to defy court orders. And So now he’s provided, he’s turned over to Congress, these text messages, phone records, and emails with his colleagues at various federal departments. I guess, Katie, I’ll just start by asking high level thoughts on this recent document dump.

Katie Phang Bro has receipts, Reuveni is impressive. I mean, he’s like every law professor’s dream, right? It’s like, save all your notes, write everything down. I mean he’s the king of no spoliation of evidence. I am like, wait, there’s more? It’s, like, do you want the Ginsu knives too? I thought there was plenty before the first time Emil Bove went and testified, and the fact that there’s more stuff that we’re getting to see, and the crazy thing. Is I have to ask like, how did he keep these things? Cause you know, he got walked out of that place. You know, when he got dismissed, DJ was like, email cut off. We’re gonna escort you out. But he kept all of this stuff because he knew, all kidding aside, Leah, Ares Rivani knew that this was gonna come back to bite somebody and it wasn’t gonna be him. He’s like, I am not gonna be able to hold in the bag. But what’s startling to me is how it is a direct refutation of Emil Bove’s credibility. And it’s crazy, because I mean, I did a video on my YouTube channel about this. And I said, if Bove makes it to the third circuit and he doesn’t agree with one of his fellow brethren on the bench, is he gonna turn to that judge and say, fuck you? Like, I’m serious. Like, how is that gonna work for him? This is alarming, alarming that his, as in Bove, his DNA and fingerprints are on Kilmar Abrego Garcia’s fate. And the fact that he knew and he was directing other official agencies to disregard judicial orders is, of course, part and parcel for this administration, but is a huge red flag. But I fear, Leah, I fear it’s still not going to be enough.

Leah Litman Yeah, so just to highlight the evidence that substantiates Rouveni’s allegations of Bove saying, fuck you. So there are texts in which he and other people are saying, this doesn’t end with anything but a nationwide injunction and a decision point on fuck you, and guess it’s time to find out time on the fuck you right? They are referencing the comment, so it seems to have been a thing. And this is not just an indictment of Emil Bove, although of course that is in some ways the most relevant given that he is nominated to the Third Circuit. There are text messages during the hearing with Judge Boasberg in which Rouvenne seems to make clear that the lawyer arguing in front of Boasberg lied. There’s one text message that says, oh, shit, that was just not true. In reference to, you know, his co-counseling saying. I think it was Drew Ensign, I think. Yeah, exactly, in reference to Drew Ensign saying he doesn’t know whether there are plans to actually bring about the AEA removals, you know, and then, you know, someone else said it’s a question if Drew, that is Ensign the lawyer arguing, gets out without a sanction. Like when you are wondering in real time if you’re going to get out without sanctions, something has gone wrong.

Katie Phang Well, and also one of the things that actually is removed from the Reveni credibility issue is the fact that Erez Reuveni’s boss actually emailed and said that the office of the director of the attorney general, obviously the deputy attorney general which basically said it was Emil Bove was instructing those federal agencies that it was totally okay for them to deport these detainees, disembark, deplane them in El Salvador. And that was a direct, direct contravention to what Judge Boasberg did. I, Leah, am upset that they got the administrative stay on the appellate court level, which effectively stopped Judge Boasberg’s contempt inquiry because I know for a fact that Judge Boasberg would have done some damage to Emil Bove. And so, as they say, timing is everything.

Leah Litman Yeah, so Katie’s referring to the decision by the DC Circuit to pause Boasberg’s order or decision, finding probable cause for criminal contempt. And he would have proceeded further. This evidence could have come out earlier. He might have made findings that Emil Bove did, indeed, direct other federal officials to defy the court order. He might’ve made findings, that Emiel Bove said, fuck you, to the courts. But he wasn’t allowed to actually consider the facts because the DC circuit stopped that in its tracks. More middle fingers to the district courts. Exactly. One bright spot of this document dump is that Friends of the Pod turned up in the oddest of places. So after Reuveni texted, quote, guess we are going to say fuck you to the court, super, his colleague responded, well, Pamela Jo Bondi is not you. And I love that they’re listening to the pod so they know. Say her name, it’s Pamela Jo Bondi. It’s not just Pamela Bondi, so. Pamela Joe. Exactly, PJB. So this is how the Republican Party selects its judicial nominees through something like a Hunger Games for legal hackery, but it’s not the only way to select political officials. We know that crooked listeners and Vote Save America volunteers have been inspired to run for office for a variety of reasons. So we thought, what happens when we ask folks in our network to run? Vote Save America is running a first of its kind pilot program to recruit our audiences, you, in Arizona, North Carolina, and Texas to run for office. That means candidates for school boards, city council, county commissioner, town clerks. That’s like election production, state legislature, and more. This is how you build power. So if you want to learn more, you can sign up at votesaveamerica.com slash. So this is probably about all we have time for for this particular episode. Katie, we always are ending these, I don’t know, surveys of the foster clock around us with things we’ve recommended, things we read, seen, watched, and liked over the last week. So I wanted to put that question to you before we say our goodbyes.

So, I mean, I probably should say something a little bit more uplifting, but I am paying particularly close attention to the alligator Alcatraz concentration camp. It is literally less than 40 something minutes away from where I live here in Florida. And there have been a couple of lawsuits that have now been filed, one from an from an environmental impact standpoint that I have covered on my sub stack. And then one that was just filed yesterday by a group of state representatives that were denied access to conduct state statute, torily authorized, unannounced visits. Because there’s gonna be an imminent dog and pony show tomorrow or over the next couple of days where there will be a scheduled visit. And by all accounts, the detainees are saying that the conditions are abysmal at Alligator Alcatraz. So I am keeping a very close eye on that. And I invite other people to look at the cases and consider the litigation because It is a very interesting collision between the federal government and the state. And frankly, anything involving Ron DeSantis and his political demise makes me very happy.

Leah Litman And if you want to, again, follow along with that litigation, you can follow Katie at her YouTube channel, Katie Phang News, or at her sub stack at Katie Phang. So my recommendations from this last week would be as follows. So V.E. Schwab’s Bury Our Bones in the Midnight Soil is this totally unexpected, surprising work of fiction that I didn’t see coming. Highly recommend if you really want some escapist distraction. I also love Gilbert King’s Bone Valley. I got an advanced reader copy of that. It’s coming out this fall. He’s of course the author of Devil in the Grove and it’s just, this book Bone Valley is just terrific. Finally, I got to see Cowboy Carter and it gave me life.

Katie Phang I’m so jealous.

Leah Litman Oh my goodness, just everything. So Katie, thank you so much for joining us. We really appreciate you breaking down all of this legal news for our listeners.

Katie Phang Thank you for the hospitality and just a huge fan of all of yours and especially of your book, Leah. So thank you so much.

Leah Litman Thank you.

Melissa Murray [AD]

Leah Litman We are delighted to be joined today by one of our favorite collaborators, Chris Hayes, whose fantastic new book, The Siren’s Call, is so good that we’d want to discuss it even if Kate wasn’t married to him and even if he wasn’t our trusted roadie. Chris, welcome back to the podcast.

Chris Hayes Thank you, that means a lot, Leah.

Melissa Murray That sounded so genuine, Chris.

Chris Hayes I meant.

Leah Litman He’s a sincere guy. I was sincere.

Chris Hayes I meant it genuinely. It doesn’t mean a lot.

Melissa Murray All right, OK, so let’s get right into it, Chris. The Sirens Call’s central premise is that attention has become a commodified resource that is extracted and exploited in what you call the attention age. And you analogize it to the way that labor became commodified and was extracted and exploited during the industrial era. So we’ve seen this before, only now we’re seeing it with attention. In your own words, you say. What you’re arguing here is that the scale of transformation we’re experiencing is far more vast and far more intimate than even the most avid critics have understood because this process of attentional resource extraction produces a wide array of negative consequences. So I am someone who is always seeing my attention divided. What are the negative consequences of attention being a scarce resource?

Chris Hayes I think the most profound at a kind of like soul level is a sense and a feeling of alienation. And that term is the one that Marx uses to describe the way that industrial era laborers felt about their labor, right? That, you know, people have always worked, they’ve always toiled, but the difference between, say, being a cobbler shoemaker who makes a shoe and. Bores yourself into the process of making a shoe and at the end of the process has a shoe to sell, that’s a very different experience than being on an assembly line, stamping soles into shoes 10 hours a day. And in some ways, the transformation from one to the other was the experience of a thing that should be internal to you, the sum of your total effort and toil being extracted outside of you so that you’re alienated from it. And I think when we think about attention… It’s kind of inseparable from the very heart of what it is to be a conscious human being. I mean, William James takes up this question in the 19th century, precisely because he rightly, I think, understands attention as inseparable from consciousness and free will, right? The ability to put your mind’s focus where you want to put it, is kind of what makes us human, right, I mean? You know, a sea slug in a lab will just stimulus response, stimulus response. Um, but the ability to exert dominion over our own minds is, is very much at the core of what it is to be human. When that faculty, which is the ability, to exert that dominion starts to degrade, starts to be taken from us. Then I think we, we suffer something at the most profound level of ourselves. Like what we are as humans gets taken from. And I think endemic to the inner life of almost everyone in the attention age is this feeling of alienation.

Leah Litman So can you say more about the dehumanizing aspect of the attention age, like kind of concrete examples, maybe about how this manifests?

Chris Hayes Well, one of the things I think that’s happening is that everyone’s literally getting dumber. And I actually, this is a sort of interesting thing, like the metrics by which we measure people’s cognitive capacity and intelligence are rightly the subject of tremendous amounts of controversy, imprecise and in all these different ways. But one of things we’ve sort of been seeing across the globe is like a decline across every country. in scores on sort of some of these basic aptitude tests and cognitive tests about people’s literacy and I think that the thing that’s necessary to like process and think is the ability to sustain attention and when you start to take that away then you really start to strike a deep blow at people’s ability to kind of do cognitive work and I you know I think all three of you are teachers and professors and you’re all three of you or like extremely, extremely top tier law schools where you’re getting the people whose faculties are the most intact, who sort of run through this gauntlet to get to that. Well, you are, I mean.

Leah Litman I’m not sure they would take that as a compliment the people whose faculties are most intact, but

Chris Hayes I mean, I think it’s probably true. And I still think it probably manifests in your classrooms all the time and with students. And I think this idea that we’re now going to have this new wave of AI that creates, that sort of institutionalizes all the shortcuts away from cognitive effort is also particularly dispiriting in this sense. But I also think it also has really tactile consequences for the media and information environment we live in. So. You know, one implication of this is that in competitive attention environments, you tend towards the sort of lowest common denominator of compelled attention. So like, what does Times Square look like and why does Times Square look the way it looks? Well, Times Square is a place where people’s attention is being fought over in a very competitive marketplace. And so you get bright lights and interruptions, the same of a casino floor, right? Increasingly all competitive attention markets look like that and they work against other forms of communication or media that look different.

Melissa Murray Can I ask about that? I mean, is it now that it’s not just that you can walk into Times Square and you’re being assailed by all of these different things that are competing for your attention, now you can work with your phone. And your phone is like, I’m thinking about that article that came out, I guess, a few months ago about how college students can’t read a book. They’re just not trained to sustain attention long enough to be able to finish a lengthy reading assignment. And so it’s sort of. Revamp the entire structure of curricula even in higher education. Are we making ourselves dumber with smartphones and other technology?

Chris Hayes I think we almost certainly are. And I think that the experience of Times Square or the experience at the casino floor is increasingly the experience in our life. And to be clear here, we’re talking about six, seven, eight hours a day, depending who’s doing the measuring. This idea that I think 10 years ago, more and more, you can make this distinction between IRL, like Get Off Line, Go Touch Grass, end. Know, the internet, like the internet was one sphere, IRL was another sphere, and those spheres kind of contacted each other throughout the day. Now it’s like, there’s no distinction, really, between the two. It’s one seamless lived reality, and that seamless lived reality is most of our waking time, or a sizable portion for some most, some half, some slightly less than half, is spent in a competitive attention market whose job is to extract our attention whether we want it to or not. And then to sell that attention to some third party. And that is going to have profound effects on what we can do with the sort of miracle and gift that our attention is.

Kate Shaw So will you say a little bit more about that, Chris, the kind of the way that the our entire social and political and economic order has been restructured around attention? And I think, you know, you make this really profound point in the book about the difference between getting and keeping attention. So can you walk through that?

Chris Hayes Yeah, so we have these sort of two faculties for attention, one’s voluntary and one’s involuntary. And the involuntarily one is the root of what attention is because if you’re walking across the street, scrolling through your phone and a car honks because it’s about to hit you, the whole point, the thing that attention has to do from evolutionary perspective is to wrench you away from the phone towards the thing that’s about put you in danger, right? So the reason we have this faculty is so that we can recognize danger. It is, and is so that we be interrupted in some deep sense. So involuntary attention, which is, you know the whale of a siren down the street, the crying of a baby on a flight, the honk of the horn of the car or a waiter dropping a tray of glasses. That’s one form of attention. And the other form of tension is voluntary, right? Which is you’re deciding right now as you’re listening to this podcast that you want to listen to this podcasts and you’re putting your focus on it right now. The issue is that if you’re in competitive attention markets, it’s much easier to grab someone’s attention than to hold it. So think about it this way. Almost any person, if there was a room, let’s say an auditorium of a thousand people, and you said, look, your job is to go in there and get on that stage and just get everyone’s attention. Like, anyone can do that. It’s sort of trivially easy. Like, where anyone who’s ever raised their glass and hit the fork against it to be like, hey, everyone, toast time, right? You can get attention very easily. But if you said, okay, your assignment is to go into that theater of a thousand people and hold their attention for an hour, well, that’s a much, much more difficult proposition. Because it’s easier to grab than to hold, what it means is competitive attention markets tend to drive towards iterative grabbing of attention. I call this in the book, the slot machine model, right? Someone, you know, people legendarily will sit at slot machines for six, eight, 10 or 12 hours. They’re not being told the story, right? There’s no narrative arc. They’re not spellbound by their attention being held. Instead, the slot machine is taking three second bytes of interruption and repeated interruption. This sense of selecting and competitive attention markets for iterative interruption, that is what the infinite scroll of the internet now has become. I mean, I don’t even think it’s an accident that it’s actual interface is like a slot machine. Like, I mean it’s scrolling in front of you. You’re sort of like… Awaiting the dopamine hit of the cherries which is like the funny video or some you know Something that’s that’s provocative or interesting or titillating or whatever it is and so you you have this selection effect because It’s speaking to some deep part of our wiring right and and you know The comparison I use in the book is the same way that you know We have certain evolutionary inheritances when it comes to our appetites that are exploited by companies like Coca-Cola or McDonald’s which can which can sell their product anywhere in the world right in in any context you can get people to drink sugary water because there’s a deep part of us that reacts to that. Um, there’s something similar happening with attention and what happens to attention capitalism when it’s deployed at scale. And remember the scale we’re talking about here, you know, Meta’s got 2 billion users, right? Like bite dances, something in that universe, billions of users. I mean, this, this is on a scale that almost no corporation has ever been selling a product on.

Melissa Murray So Chris, in the book you make the point that no one wants mere attention. In fact, you say, quote, we want recognition and attention is a poor substitute. How do we distinguish between what is mere attention and what is recognition, which from your telling seems deeper and more substantive and meaningful.

Chris Hayes Yeah, I think this is one of the most central points of conflict and despair in the social media world that we’ve constructed, which is not only can we pay attention to people, people can pay attention to us, that social attention. And in some ways that social intention is, from the moment we come into the world, we need it. I mean, a newborn baby is helpless and it will die without attention. It has to be attended to. That attention is the thing that brings care. In fact, newborn babies have this trick, right? They can cry. And it’s not an accident that that cry is very, very hard to ignore if you’re ever around a newborn whaling because that is the means by which it attracts attention and that attention is necessary for its survival. So we are creatures that are social creatures, and we need social attention to live from the first moments of life. And what that means is that Platforms have kind of weaponized this against us by engineering social attention into the very foundations of the platform, right? When someone tags you, responds to you, right, your mentions, your notifications, right. All of that is sending this bit of information, someone’s paying attention to you. There’s experiments that show in a setting where, like a cocktail party, where you’re focused on the conversation in front of you, someone says your name across the room, it leaps into your consciousness. Because that social attention is such a profound part of who we are that it’s even wired into our perceptual apparatus. The difference between that and recognition is that I think the thing we want as humans is to be seen as human by other humans. Like, the weird thing about attention is that it mirror. It’s necessary, but never sufficient. So like, what you want in a relationship, in a friendship, in a collaboration with colleagues, in a romantic relationship, right, in our friendship. You want care, reciprocity, you wanna be seen as human by another human, you want all these things that are profound and deep about recognition. Attention is the merest level of it. But it’s necessary to get the other stuff. And so what we’re being fed online is the merest thing that is easy to kind of mistake for the deeper thing. It’s like a sort of like synthetic version of something, right? Like a synthetic drug that replicates endogenous chemicals in our body. And that mismatch between like what we’re getting and what we actually crave, I think describes a lot of people’s extremely compulsive behavior online, particularly as regards social attention.

Kate Shaw Let me maybe pivot for a minute. So I obviously know the book super well. So I’m just like asking you to talk through some of my favorite parts of the book and kind of insights in the book. But I really like the parts of book. Now, it’s not a book that’s about Donald Trump and you spend most of the books not talking about Donald trump, but then you have to. And so he is in some ways like this kind of product of and paradigmatic exemplar of the kind of attention age figure. And you talk a bit about Elon Musk as well in the books. So. Can you just talk through the way you discuss those two really important players in the book and then maybe Let us know has your thinking about either of them change, right? So you finished writing the book a year plus ago I’m trying to remember the exact timeline But obviously there have been a lot of developments involving both trump who has become president again and musk who was you know? Bought twitter. I think he was purchasing twitter and newly running it as you were kind of putting the galleys of the book to bed so any and all of that.

Chris Hayes So I think in Trump’s case, this is someone who recognized very early on how powerful attention is. Also, one of the things that distinguishes attention from other forms of human relations is that it can be positive or negative. Like there’s no such thing as really like negative care or negative love, negative reciprocity. Like the things we think of as positive aspects of human relationships are positive, but attention can be negative or positive. I mean, someone can be screaming at you on the subway or they can be flirting with you and like. Those are both forms of attention. Donald Trump is such a, I think, just profoundly broken person at such a deep and fair level that he doesn’t really distinguish between them where he wants attention so badly that he’s willing to take negative attention in ways that are truly kind of pathological and unnatural for most people who don’t like negative attention. But I think via this deep instinctual aspect of his personality, he made the discovery that attention is basically the most important resource. And if you collect it to yourself, you collect tremendous amounts of power. I think Elon Musk didn’t start out with the same brokenness of Donald Trump, but he got it somehow. I think by being online too much, like I literally think Twitter broke him profoundly and he became addicted to attention in a way that was totally compulsive and pathological, but also led him to the same insight that I think Trump had, which is about the power. Attention and even negative attention that if you collect enough attention and even if it’s negative you aggregate power yourself I do think that his arc is really interesting to study in contrast to Trump because I think Trump has natural charisma which I think you know aids him in a way that Elon Musk is like the opposite of cares he’s like the least charismatic human being I’ve ever encountered he’s a negative void of charisma he’s just

Leah Litman Have you met Sam Alito?

Chris Hayes You’re right. Actually, Alito is in a very similar category. And so I think that they have the same insight and some of the same pathologies. But ultimately, Trump has a natural talent for getting attention in a way that Elon Musk doesn’t. His is born purely of the kind of pathologies and addictions of his very obviously and documented addiction to social media. Which he posts on all hours of the day and night.

Leah Litman I feel like you are channeling Bane. You merely adopted the dark. I was born and molded by it as you were talking. OK, so I wanted to ask, you’ve talked both in interviews about the book, but also the book itself, about how part of your job was kind of staying on top of rapidly developing news and how that kind of forced you into this world of attention and the attention economy. And I guess I wanted ask. For your advice, because I feel like a lot of what people are being asked to do right now is to stay tuned into politics and engage in public information and public education. And these situations can be quite rapidly developing, like as a vote is unfolding and people are all of a sudden calling on you to call certain representatives and whatnot. So how do you balance the competing demands of this rapidly evolving political hellscape in which we all need to be. Tuned into and participating in and informing ourselves and others about with the reality that, of course, in order to form deeper engagement and engage in deeper thinking, you need to check out of that at some points and like toggle back and forth between the two.

Chris Hayes Yeah, it’s a really great question. I mean, I would say my first answer is just like, if you listen to strict scrutiny, why is this happening? Watch all in and then like make some time to read Lawless and the Sirens Call. Like that’s your basically, that’s a good comprehensive set of information sources.

Leah Litman And Kate’s New York Times op-eds.

Chris Hayes Yes, I mean, obviously, when Kate pops up in the New York Times, you got to read that, too. But no, I think that fundamentally, it’s a great question. I mean I tell people this, which is kind of an admission against interest, which is that like, you don’t really need to follow the news all day every day. I think, you know, one thing I think about is like, there’s a kind of a natural logic to the idea of morning news radio or like the morning paper. Or you read the paper later that day when you get home. There used to be, back in the day, there’d be morning papers and evening papers. Morning paper and the evening news is another combo you could do, right? I do think that setting time aside where you actually pay attention to the news and try to digest it in some way that is more than just the kind of barrage does make kind of sense. And I do you think the constant plugged in can have kind of diminishing returns after a certain point, even though obviously, from the perspective of my employer, it’s better if you will watch our network all day, which I get. But I do think that, yeah, I do think there can be diminishing return. And I do you think setting time aside, I mean, one little thing I write about in the book, which I do I think is interesting, is reading the physical paper is so much better than. Reading it online or reading it mediated through social media. I saw this really funny thing the other day where the Sunday shows all did rounds of interviews where there was a lot of questions about Zohran Mamdani and some Democrats said some pretty bad stuff about him and that got clipped and it went viral and I saw people like why are Democrats paying it like they’re about to pass this terrible bill and why are democrats only talking about Zohran Mamdani it’s like if you go back to the interviews Like, there were tons of exchanges about the bill. The thing that got people’s attention was the controversy over Mamdani, which then got clipped. But the actual original source of the interview was not just about Zohran Mamdani. In fact, it spent a lot of time on the bill. And one thing that happens is when you get information and news totally mediated by social media, you can lose that context very, very easily, which is why I think that doing things like reading the newspaper or listening to strict scrutiny you know, all the way through even about cases that are not like the big cases is actually just a really useful way to get information.

Melissa Murray I mean, because they’re all big cases when you get right down to it.

That’s right.

Melissa Murray [AD].

Melissa Murray  It’s undisputed that President Trump, Elon Musk, are major figures in the attention age. But on strict scrutiny, I think we are of the view that the Supreme Court is also a major player in the age of information. So yes or no, do you agree with us? The right answer is obviously yes. And then I will ask you to elaborate. How exactly is the court a player in this ecosystem? Is the court more susceptible to public pressure? Because attention is more fluid and performative than it’s ever been, how does all of this impact the world that we occupy and our views of the court?

Chris Hayes So I agree with you that it’s as important as the other institutions and in some senses more so, but I also think it has the most interesting relationship to attention. I think they generally don’t want a ton of attention. I mean, there are definitely divas among them and in that sense, but I think institutionally, one of the things that you find in TV is that it can be hard to do stories about the court because you have nothing to show. Like, there’s so many times I’ve done a court segment, when I look up at my return monitor, it’s the first, when they sit for their, when they pose for their term portrait, there’s a still photo and then there’s b-roll. And we’re just, we’re re-racking the b- roll over and over as I talk about the case, cause it’s like, there is no images. There’s a reason they don’t let cameras in the courtroom. There’s an admirable part of that and a devious part. The admirable I think. Is that I think there’s genuine concern about the court as an institution being pulled into the same set of attentional incentives that the rest of the branches are, right? Controversy raises money, for instance, and so you get like real nutty figures who are trying to raise money and say wildly outlandish things because they can win a primary or get eyeballs that way. So I think, there’s a sort of wise fear of being pulled into that maw. But there’s also something devious, which is that they don’t want. Really attention because attention also is related to like democratic accountability and they don’t really want democratic accountability part of that is by design but I think part of that’s their their desire at this moment I do think it would transform fundamentally the court in really fascinating ways if we had video of oral arguments if you could watch them live it’s interesting to think through what the implications of that might be. I do think it’s really interesting, the sort of experiment that we had with starting with COVID, where we got live oral arguments and got to listen to them. We’ve been able to sort of stream them on MSNBC, where they show the pictures, the faces when the person’s talking, but it’s not the same, obviously. And I think that’s a very, it’s a really intentional relationship to attention on the court.

Kate Shaw Can I ask one quick follow up to that?

Chris Hayes Yeah.

Kate Shaw So you know, so obviously we are kind of doing our part to try to draw attention to the court. I’m curious whether there are strategies to the extent that you’re right. And I think you are the majority would prefer to have less attention focused on what it is doing. Like this kind of three democratic appointee block is going to be in dissent for a long time. And I have kind of occasionally wondered whether they need to be playing a different game vis-a-vis the public’s attention. And, and I’m not sure if you agree with that or have sort of thoughts about what that might look like.

Chris Hayes That’s a really interesting question, and I hadn’t thought about it in those terms, but I also think you’re probably right. I mean, one of the things I’ve been thinking about in the political sphere is that there’s sort of different rules for like incumbents and challengers about attention. You know, you see this sort of reflected in political conventional wisdom, for instance, that the, you know, the person leading the polls wants to do fewer debates, and the person behind the polls wants to more debates, right? If you extend that logic, right, to the six three court, it’s like they’re the challenger. They’re the ones behind in the polls. They should want more attention. And I think that’s right. And I it’s interesting to think about how they might go about doing that. Again, one of the things we’ve learned is that all these are just norms. I mean, there’s no one. The Supreme Court doesn’t have a boss, which is why you can violate federal gift reporting requirements and all. Common sense ethics and, you know, take trips that you don’t disclose and things like that. You could just give interviews. Cases, like the day that they happen, you could have a media availability.

Leah Litman Come on, strict scrutiny. We repeat the invitation.

Chris Hayes Yeah, like I mean and I think that obviously like even as I say that I’m like myself I’m a little aghast at it but

Leah Litman Well, but here’s the thing. The Republican justices sometimes appear on Fox to promote their books, as do other Republican appointees. They also appear on podcasts.

Chris Hayes Or they like appear at, you know, I mean, it is, it is very funny to me like where these rules are and aren’t like what you can do and say and what you could say and do in books and all of it is this kind of like none of it’s written down but there are these sort of unwritten rules and you can like give this almost sort of like comically petty bitchy speech in Notre Dame, you know, if you’re a Supreme Court justice, but like you would be crazy to go on. Like my show, The Night of Casa, if you were Ketanji Brown Jackson, and be like, this sucks. But like, why not, right? I mean, and why are they different? I mean in some ways, right. I mean and now you can argue, as I sort of say this out loud and argue with myself, I mean you can that if you had to do all over again, maybe Alito would take back the Notre Dame speech, right, like did it redound to his benefit to like give this sort of petty speech where you’re like calling out specific Atlantic writers and also saying like, How dare you accuse of. You know, deciding these shadow docket emergency questions on SB8 because we, you know want to get rid of abortion before you actually go ahead and do exactly that. So like, I don’t know, did it rebound to his benefit but I do think there’s a really interesting question about, you now, I think you guys are so your sort of fundamental insight here, right? Is that there’s mismatch between the amount of the attention the court gets in its power. And part of the project of what I see you guys is doing is like… Shrinking that distance, right, to bring attention to it because that’s a kind of necessary first step in like healthier court, broader democratic, like small d democratic accountability. And so I do think it’s interesting to think about that in broader terms is like how that can be with this 6-3 minority? It’s a really interesting question.

Leah Litman So maybe shifting from problem to solution and to the thing the Supreme Court is supposed to be doing, which is law, what legal or constitutional concepts do you think we might need to revisit in order to effectively deal with the growing wave of attention-based manipulation? Maybe there’s some possibility of using antitrust to focus on attention monopolies. Or your book talks about the First Amendment being a potential barrier to effective regulation. So can you elaborate on? Possible legal concepts that we might have to rethink as we are thinking about how to address this.

Chris Hayes Well, I think what’s interesting is that a lot of attempts to deal with regulating attention run up against the fact you’re regulating speech, and that’s a real thorny issue. I did think that the court allowing the, well, this is funny, the court allowing the TikTok ban to go into effect, which then we’ve all decided, talk about no law, just vibes, like we’ve just decided the law doesn’t apply, including all of the members of Congress of both parties and both chambers that voted for this law, and everyone, which was a lift. And they passed this law, and now everyone has just unilaterally decided the law doesn’t matter. It’s so insane that this has happened, but I digress. But when the court allowed the ban to go into effect, they’re finding, which was unanimous, which is that like this kind of, I mean, obviously it was partly on national security grounds, which I always get a little like worried about and kind of gets my back up a little, but that the idea that platform, total platform regulation, right, independent of content. Doesn’t do enough, like there are speech interests, but largely spares the speech interest in such a way that that’s a useful avenue for regulation. Like for instance, I mean, this would obviously get challenged, but like it would be interesting for the law to regulate how many hours a day people could look at the platforms. Like that to me doesn’t, like is there a speech issue there? It’s not clear to me there is, right? Like we’re not saying, Like you could, you could watch all of the Worst stuff you want for those six hours. We’re just saying that there’s actually. And then age restrictions are the other question. And again, on age restrictions, there are live issues, I think, even before the court, before the appellate courts, on the speech implications of those. And I think I part ways with some progressive folks on this question. I’m much more in favor of age regulation on this stuff than I think a lot of the line that comes from, say, the ACLU and others, but um.

Melissa Murray Just as Alito is just going to say that parents have a fundamental right to raise their children in the manner of their choosing, and they can watch Bible TikTok as long as they want.

Chris Hayes Yes exactly. Yes, I think that’s right. I think if you like if you challenge it on a religious grounds like my kid has to watch Bible Tik Tok all day.

Kate Shaw Can I throw one more thing in that I’ve heard you talk about is like space, not just age, kind of like the fact that once upon a time smoking in restaurants was like extremely normal and natural, and we have obviously basically banned that, like limitations on public phone use. Now, I don’t know if you’re talking about that as social norms or law, but I’ve also heard you talk about it in kind of an interesting way.

Chris Hayes Yeah, I think of that more as a social norm that’s enforced, although if you extend out the analogy with smoking, obviously that was both. It was both, right? First, it was restaurants being like, we’re not going to have smoking, and then it was law. I do think that before you get to the law, the social norm, there’s all this focus on schools and classrooms, understandably, but I also think that the focus on kids ends up being a little bit of this displacement of our own anxieties. And also onto subjects with less autonomy than us. So there’s this kind of thing of like, we should take their phones away. It’s like the consensus view of like they should not be in front of the phones all day. It’s, like, well, what about us? And I do think that there’s, you know-

Melissa Murray Cause they have their whole lives ahead of them. We’re on the B side of life, Chris. Like there’s no hope for us. Wow.

Chris Hayes I saw a very funny joke about this about someone like on their you know that the old cliche about no one on their deathbed is like I wished I worked harder and I saw some joke about like being on your deathbed and be like I wish I could have scrolled more If I had to do over again, I would have scrolled more. But no, I think that creating adult norms around this that are similar to what we say about the classroom. I mean, I’ve found myself recently in some context of adult conferences. And it’s just crazy for people to be sitting on their phones out. And I do think that something I do think will happen, and I’m wondering how much AI actually speeds this up, is that I would love for us to arrive. Because it is a collective action problem that like certain public places, certain public environments are just phone free, whether you, that means you just don’t take them out as like a matter of practice or there’s actually some cubby system or yonder bags or whatever it is that you just, you, you, you check them and that’s just like, and so when you’re at a restaurant, like people want other phones out, like that’s, just like

Leah Litman We saw how well that worked in white lotus. We haven’t watched the last single. Oh, sorry.

Melissa Murray Of course you haven’t, of course, this is how it starts. This is the root of all of it. No, this summer we’re going to, we’re catching up, so we’ll be sure.

Chris Hayes But yes, I do think that like, and then it is interesting to think about what legal implications of that might be. Like I said before, I increasingly believe, even in the months since the book was put to bed and come out, that like a lot of the problems here may be so exacerbated by AI and become so bad so quickly that the whole thing kind of blows up a little bit. We’ll see.

Melissa Murray All right, so I think we have to leave it there. Before we let you go, though, we have recently started ending episodes by identifying a couple of things that we read or watched or did in the last, say, week and wanna share with our listeners. So do you want us to go first? Do you wanna go first, Chris?

Chris Hayes I’ll go first with something that will, by the time your listeners hear this, might be a little dated, but is fresh to me, which is one of the things I thought was really interesting about Zohran Mamdani’s campaign for mayor was the way that he sort of used social media and particularly like direct to voter communication, sort of not relying on intermediaries, but going direct to voters with these short form videos. And after he won, there was a round of takes in the amongst the take mongers like myself. People slinging various takes back and forth about what it meant, which was the kind of classic mediated political discussion. And I thought it was really interesting that he put out his own take on his own win today in a long video where he did the thing that all of us as pundits do, which is like, look in the cross tabs of like the precinct level data and who won this and how did you win? And he’s like, here’s my take having just done it on how I won and made some really interesting and good points, but… Both the content was interesting but also this idea of the politician sort of reasserting authorship over their own story i thought was really interesting because the post-election take circle is such a tradition.

Kate Shaw I agree. That was great. And actually, I’m going to go next and also mention something Mamdani content related, which is a conversation that you, Chris, had with Ezra Klein and his podcast just after the election that kind of takes this lens of attention in the attention age and brings it to bear on Mamdani’s campaign and win. And it was a great conversation. So really recommend that. And then I just have just started. So I don’t really have a full assessment of the book, but I started reading Rutger Bregman’s Moral Ambition. Um. Which is much more like how to self-help-y than I realized. It is really just like a, how to kind of reconceptualize your relationship to ambition and to focus on literally just prioritizing making the world a better place every day with the choices you make. But I really like it so far. So that’s my other recommendation.

Melissa Murray So I am going to do a read and a watch, I rewatched Dirty Dancing, which I love. I remember watching it at summer music camp at FSU. I was the first chair viola. And it was amazing. And I think every time I come back to it, I’m always surprised to recall that there is a huge abortion storyline. And it’s just like, it’s not really like, baby doesn’t have an abortion. If I’m rooting it for you, that’s a real problem. You should have been watching it a long time ago but it’s the whole plot is animated by this question of an illegal abortion that happens and then sort of propels the plot forward. So I love going back and watching things I haven’t seen in a while and I’m always nostalgic. I read this week a fantastic book by a law professor named Andrea Freeman. The book is called Ruin Their Crops on the Ground, the Politics of Food in the United States from the Trail of Tears. To American school lunch. And it is a James Beard award winner. I didn’t even know James Bear. I was just about to say, she got to meet Padma Lakshmi. I love that. I love for her. Andrea is probably the most important legal scholar working on questions of food justice in the country right now. And this book really is a tour de force. She had another book a few years back called Skimmed, which is about. The way in which the pet milk company marketed infant formula to the black community during the 1950s. She’s done amazing work on this and related it in really interesting ways to both our history of enslavement and racism and segregation, but also to our current moment of deep, deep income inequality.

Leah Litman Chris, thank you so much for joining the podcast. Chris Hayes is the author of The Siren’s Call, How Attention Became the World’s Most Endangered Resource. And if you only know him as our roadie or the host of All In with Chris Hay’s on MSNBC or the Why Is This Happening podcast, now you know he’s also a brilliant thinker and author. Chris, Thank you again for joining us today.

Chris Hayes Oh, it was such a pleasure. Thank you for having me.

Leah Litman And before we go, a few housekeeping notes. So the media might’ve moved on from Trump’s reign of terror in Los Angeles, but we definitely have not. If you wanna join us in spreading the word that we’re not okay with what the Trump administration and ICE are doing, pick up some merch from The Crooked Store. The Friend of Immigrants tee sends a message that you’re standing up for your neighbors. And the Don’t Poke the Bear California flag tee is perfect for those of us who love the state and the immigrants who make it amazing. You can find both at crooked.com slash store. Also, as you know, Republicans in Congress just passed one of the cruelest and least popular pieces of legislation in history. It’s going to kick millions of people off their health care so that the rich can get even richer. Many House Republicans who voted in favor of this bill won by slim margins and are facing tough re-elections next year. We can hold them accountable by voting them out and taking back the House. And that’s why Vote Save America set up a Take Back the House fund to support must-win House races. To get more information, head to votesaveamerica.com slash House. This was paid for by Vote Save America. You can learn more at votesaveamerica.com. This ad has not been authorized by any candidate or candidates committee.

Kate Shaw Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell, Michael Goldsmith is our associate producer, Jordan Thomas is our intern, audio support from Kyle Seglin and Charlotte Landes, music by Eddie Cooper, production support from Katie Long and Adrienne Hill, Matt DeGroot is our head of production, and thanks to our digital team, Ben Hethcote, Joe Matoski, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at Strict Scrutiny podcast. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us, it really helps.